Horton v. City of Grand Haven
| Citation | 24 Mich. 465 |
| Court | Michigan Supreme Court |
| Decision Date | 16 April 1872 |
| Parties | Marcus N. Horton v. The City of Grand Haven |
Heard April 4, 1872
Certiorari to the recorder's court of the city of Grand Haven.
Judgment and all the proceedings, reversed and set aside with costs to the plaintiff in certiorari.
Boynton & Pratt, for plaintiff in certiorari.
No counsel appeared for defendant in certiorari.
Graves, J., did not sit in this case.
This case comes before us upon a writ of certiorari issued to the recorder's court of the city of Grand Haven, for the purpose of bringing up certain proceedings there had in behalf of the city for condemning certain lands of the plaintiff in certiorari for a street.
A single question is decisive of the case. It appears by the return, that not only the resolution of the common council and the notice given by them, for the calling of a jury, but the venire issued, were for a jury merely "to inquire into and determine the just compensation to be made to the owners of the grounds and premises of the persons interested therein, for using said grounds and premises," etc., without requiring them to ascertain the necessity of using or taking the same. And the jury were sworn only to inquire into and determine such compensation; and their verdict actually rendered, determines this only, without in any way alluding to the necessity for taking or using the property.
This, it is true, was in exact compliance with the act incorporating the city as amended by the act of 1867. But this act, so far as it authorizes the taking of private property for public improvements without having the necessity for so using it, first determined by a jury or by commissioners, is in direct conflict with section 2 of article XVIII of the constitution of this state, if that section applies to the case. The section is in these words: "When private property is taken for the use or benefit of the public, the necessity of using such property, and the just compensation to be made therefor, except when to be made by the state, shall be ascertained by a jury of twelve freeholders residing in the vicinity of such property, or by not less than three commissioners appointed by a court of record, as shall be prescribed by law."
This language is general, and so far as relates to ascertaining the necessity, seems, so far as anything in this section appears, to have been intended to apply to all cases of taking private property for public use, unless perhaps where compensation is to be made by the state, and whether such cases constitute an exception we express no opinion.
The prohibition of this section against using private property without first ascertaining the necessity of such use must, therefore, be held to extend to the present case, unless its effect is, in this respect, limited by some other provision of the constitution. The only provision of this kind which can possibly...
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