In re State Highway Com'r

• Decision Date: 02 December 1930
• Docket Number: April Term.,No. 106,106
• Citation: 252 Mich. 116,233 N.W. 172
• Parties: Petition of STATE HIGHWAY COM'R. In re CONWAY LUMBER CO.
• Court: Michigan Supreme Court

252 Mich. 116

233 N.W. 172

Petition of STATE HIGHWAY COM'R. In re CONWAY LUMBER CO.

No. 106, April Term.

Supreme Court of Michigan.

Dec. 2, 1930.

Certiorari to Circuit Court, Emmet County; Frank Shepherd, Judge.

Proceedings by the State Highway Commissioner for condemnation of private property of the Conway Lumber Company. Award of compensation was confirmed by the circuit court, and the property owner brings certiorari.

Affirmed.

Argued before the Entire Bench. Wilber M. Brucker, Atty. Gen., and Lincoln E. Bradt and Harry N. Deyo, Asst. Attys. Gen., for petitioner.

George E. Nichols, of Ionia, and Leon W. Miller, of Petoskey, for respondent.

FEAD, J.

This is certiorari to the circuit court for the county of Emmet, to review proceedings for the condemnation of land of the Conway Lumber Company for state highway purposes, under Act No. 352, Pub. Acts 1925, as amended by Act No. 92, Pub. Acts 1927.

Contracts for the work were let before any condemnation proceedings were commenced. The hearing on necessity was conducted by H. G. Oakes, under appointment of the state highway commissioner, Mr. Rogers, by virtue of section 28 of the act. Mr. Oakes filed a report and Mr. Rogers made a determination of necessity on December 1, 1928, in which he fixed damages of the Conway Lumber Company at $2,000. Mr. Rogers subsequently resigned and, some 113 days after the determination of necessity, his successor, Mr. Dillman, filed his petition in circuit court for the appointment of court commissioners to fix compensation. The court commissioners allowed the Conway Lumber Company $3,500 damages. It claims $115,000. Most of the contentions involve questions of procedure and may be answered by outlining the statutory steps.

Under another and prior statute, 1 Comp. Laws 1915, § 4358 et seq., both necessity and compensation were determined by commissioners appointed by circuit court. An affirmative showing before the commissioners that a good-faith effort to purchase had been made before institution of proceedings was held mandatory and jurisdictional. In re Petition of Rogers, 243 Mich. 517, 220 N. W. 808. Under Act No. 352 the questions are divided, the highway commissioner determining necessity and the court commissioners passing only on compensation. Act No. 352 was found defective in not affording the property owner an opportunity to be heard on necessity and in not providing a judicial review of the determination of necessity by the highway commissioner, his determination being the exercise of a judicial function. Hendershott v. Rogers, 237 Mich. 338, 211 N. W. 905. The defects were cured by Act No. 92, which provides for notice of hearing (section 4) and a review of the determination of necessity on certiorari (section 27). Ziegel v. Board of Road Commissioners, 241 Mich. 161, 216 N. W. 426.

The requirement that an effort to purchase precede the institution of condemnation proceedings was preserved in Act No. 352 and Act No. 92 (section 4). This court, through Mr. Justice McDonald, declared its effect to be:

‘It is our judgment that this provision of the statute is mandatory and requires a good-faith effort to purchase as a condition precedent to a hearing on the question of necessity. It is jurisdictional and must be alleged in the notice proved at the hearing and determined in the order of necessity. If this is not done, all subsequent proceedings are void.’ Allen v. Rogers, 246 Mich. 501, 224 N. W. 632, 634.

Section 4 further provides that the declaration of the highway commissioner that he has been unable to agree with the owner on a purchase price, as well as his determination of necessity, shall not thereafter be questioned. In Allen v. Rogers, supra, this provision was construed to mean that:

‘If there is any proof to support the commissioner's declaration that he had made a good-faith effort to purchase, his declaration is conclusive. It cannot thereafter be questioned. His jurisdiction to proceed does not depend upon the correctness of his judgment on the facts presented by the proof, but upon his observance of the law. His jurisdiction can be questioned, but not his findings on the facts unless the record shows that there is no evidence to support them.’

As construed, the statutes require, as jurisdictional requisites of the determination of necessity:

(1) Notice to the landowner of hearing on necessity, containing a declaration that a good-faith effort to purchase has been made.

(2) A judicial hearing by the highway commissioner in which shall be presented testimony both on necessity and that the effort to purchase has been made. This contemplates that the highway commissioner shall make a record of the proceedings and evidence.

(3) A determination by the highway commissioner that he has found both necessity and the requisite effort to purchase.

The only evidence in this record of the proceedings at the hearing on necessity is a report by Deputy Oakes to the state highway commissioner, in which he stated that he had held the hearing; that Conway Lumber Company and others had appeared; that all had agreed that the road was necessary; that no agreement for compensation could be reached and they desired commissioners appointed to assess their damages; that a witness had testified; and that the highway department ‘was unable to reach an agreement as to what should be paid for said lands.’ This report constitutes prima facie evidence of the facts recited therein. (Pub. Acts 1925, No. 352) § 22. There is no evidence in the record to dispute it. Upon certiorari, where the evidence is not returned, it will be presumed to have been sufficient to justify the judgment. Case v. Frey, 24 Mich. 251;Burt v. Supervisors, 108 Mich. 523, 66 N. W. 387;Benton Harbor Terminal Railway Co. v. Hall, 131 Mich. 384, 91 N. W. 643;Lasley v. Preston, 157 Mich. 66, 121 N. W. 286. So, if the question of necessity were reviewable in this proceeding, it would be assumed that proper testimony of effort to purchase had been presented.

The state highway commissioner made a determination of necessity, in which he found:

‘I further determine that it is necessary to take for such improvement an easement for public highway purposes over and upon certain private property, for the purchase of which I have been unable to agree with the owners or persons interested therein.’

The statement referring to purchase is in statutory language and is, therefore, sufficient.

Under Act. No. 352, certiorari was provided for review of condemnation, on the same procedure as for review of circuit court judgments and on application within 20 days after confirmation of the report of the commissioners. But by section 4, the determination of necessity was declared unassailable and the remedy by certiorari did not apply to it. By Act No. 92, Pub. Acts 1927, certiorari was provided for review of the determination of necessity, on procedure similar to that for review of judgments of justices of the peace, which requires notice within five days after judgment and application for the writ within ten days. The statute provides for the transfer of title and possession of the premises to the state before the petition to appoint the court commissioners on compensation is made. It clearly contemplates that the determination of necessity is final, unless it is reviewed directly on certiorari in advance of the appointment of commissioners on damages, and that a showing of necessity and of good faith effort to purchase need not be made, nor can it be reviewed by the court or commissioners, in the proceedings to fix compensation. To this there is, of course, the exception that the determination may be challenged by an affirmative showing of want of jurisdiction in the highway commissioner to make the order, as for lack of notice of the hearing. There was no affirmative showing of lack of jurisdiction to make the determination of necessity. The order was sufficient to support the proceedings on compensation. This disposes of all the objections to the proceedings on necessity, including the contention that the state highway commissioner was disqualified from determining necessity by reason of his having let contracts in advance of the proceedings, first raised on confirmation of the report of the court commissioners.

Section 7 of the Act (No. 352 of 1925) provides that within 90 days after the filing of the determination of necessity the highway commissioner shall petition the circuit court to appoint commissioners to fix compensation. It is contended that the time is mandatory and jurisdictional and that the whole proceeding was void because the petition had not been filed in season.

No authorities in point or analogous were cited. The question must be determined upon an original construction of the statute, resting upon principles concisely stated in Re Powers' Appeal, 29 Mich. 504:

‘The course to be taken is quite minutely set forth, and inasmuch as the proceedings are special and adverse, whereby private property is taken against the will of the owner, the settled principles of law require strict compliance with every provision which is not so purely formal as in no way to bear upon the protection or rights of the parties to be affected.’

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