In re City of Detroit
| Decision Date | 03 April 1944 |
| Docket Number | No. 95.,95. |
| Citation | 14 N.W.2d 140,308 Mich. 480 |
| Parties | Petition of CITY OF DETROIT (AIRPORT SITE.) |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Proceedings in the matter of the petition of the City of Detroit for the taking by condemnation of private property for the use and benefit of the public for purpose of constructing and operating an airport, wherein the Township of Warren filed a motion to dismiss. From an order denying the motion, the Township of Warren appeals.
Affirmed, and case remanded, with directions. Appeal from Circuit Court, Macomb County; Fred W. George, judge.
Before the Entire Bench, except REID, J.
Charles A. Retzlaff, of Detroit (Kenneth J. McCallum, of East Detroit, of counsel), for appellant, Township of Warren.
Paul E. Krause, Corp. Counsel, and Bert R. Sogge, Asst. Corp. Counsel, both of Detroit, and B. V. Nunneley, of Mt. Clemens (Nunneley & Nunneley, of Mount Clemens, of counsel), for appellee.
This appeal is from denial in the circuit court of a motion by Warren township to dismiss the petition of the city of Detroit, Wayne county, for condemnation of private property for the purpose of constructing and operating an airport site in Warren township, Macomb county, Michigan. Our decision handed down herewith in Warren Township School District v. City of Detroit, Agar v. City of Detroit, 14 N.W.2d 134, is related to the same subject matter. This petition recites that it is filed under the law as provided in ‘Sections 3763-3783 of the Compiled Laws of Michigan of 1929, as amended by Act 296 of the Public Acts of 1941; as provided by * * * section 4829 of the Compiled Laws of Michigan of 1929, as amended by Act 344 of the Public Acts of 1939 and Act 333 of the Public Acts of 1941; and the Charter of the City of Detroit; and other acts incidental thereto relative to condemnation proceedings * * *.’ The township, after being served with an order to show cause, entered its special appearance in the condemnation proceedings for the purpose of making this motion to dismiss. The motion was heard and decided on the record consisting of the petition, the township's motion, and the city's answer thereto. For reasons hereinafter noted we hold that denial of motion to dismiss must be affirmed.
The reasons first assigned by the township in support of its motion are that plaintiff's (the city of Detroit) petition is fatally defective because ‘the proposed airport does not involve a matter of public health or safety’, that it ‘proposes to vacate or alter public roads and highways which have previously been established’, and that ‘it contemplates the establishment of an airport for private use and not for public use’, in violation of the Fourteenth Amendment of the Federal Constitution. We know of no constitutional provision which restricts the taking of private property for public use, as proposed in the instant case, to only such purposes as have to do with public health or public safety. Instead the field is broadened to include public welfare or public necessity. The right to exercise the power of eminent domain in the instant case is not limited by the restrictive provisions in Article 8, § 22, of the Constitution. The power of eminent domain is inherent in State sovereignty. Detroit v. Oakland Circuit Judge, 237 Mich. 446, 212 N.W. 207;Fitzsimons & Galvin, Inc. v. Rogers, 243 Mich. 649, 220 N.W. 881. Subject to constitutional restrictions, it is entirely under control of the Legislature. Loomis v. Hartz, 165 Mich. 662, 131 N.W. 85. The Michigan Legislature has delegated the right to exercise that power for the purpose of establishing airports to cities, villages, townships and counties of this State. 1 Comp.Laws 1929, § 4829, as amended (Stat.Ann. § 10.61). The petition, under its allegations, which must be accepted as true in passing upon the township's motion to dismiss, expressly confines the condemnation proceedings to the taking of privately owned property. It does not seek the vacation or alteration of public roads or highways. Nor does plaintiff's petition seek to condemn the township's drains, sewers or water mains in the designated territory. And clearly, under the allegations of plaintiff's petition the contemplated airport is not one for private use, but instead the ‘improvement is for the use and benefit of the public’; and ‘the differnt piece or parcels of real estate * * * are proposed to be taken for said public improvement, to-wit: An Airport Site for use and benefit of the public.'
The township also urges in support of its motion to disniss that granting...
To continue reading
Request your trial
-
Wayne County v. Hathcock
...124. In re Opening of Gallagher Ave., 300 Mich. 309, 312, 1 N.W.2d 553 (1942). 125. In re Petition of City of Detroit for Condemnation of Lands for Airport, 308 Mich. 480, 14 N.W.2d 140 (1944). 126. Union School Dist. of the City of Jackson v. Starr Commonwealth for Boys, 322 Mich. 165, 33 ......
-
City of Scottsdale v. Municipal Court of City of Tempe
...Com.Pl., 79 N.E.2d 698, aff'd. 83 Ohio App. 388, 78 N.E.2d 694, app. dismissed, 149 Ohio St. 583, 79 N.E.2d 911; Petition of City of Detroit, 308 Mich. 480, 14 N.W.2d 140; Aviation Services v. Board of Adjustment, 20 N.J. 275, 119 A.2d For example, the Missouri Supreme Court in State ex rel......
-
Aviation Services v. Board of Adjustment of Hanover Tp.
...inapplicable to an airport operation sought to be established by another political subdivision of the state, Petition of City of Detroit, 308 Mich. 480, 14 N.W.2d 140 (Sup.Ct.1944) and State ex rel. Helsel v. Board of County Commissioners, 79 N.E.2d 698, 705 (Ohio C.P.1947), affirmed 78 N.E......
-
South Hill Sewer Dist. v. Pierce County
...490 (1938); People ex rel. Scott v. North Shore Sanitary Dist., 132 Ill.App.2d 854, 270 N.E.2d 133 (1971); In re Petition of City of Detroit, 308 Mich. 480, 14 N.W.2d 140 (1944); State ex rel. Askew v. Kopp, 330 S.W.2d 882 (Mo.1960); State ex rel. St. Louis Union Trust Co. v. Ferriss, 304 S......