Michigan State Highway Commission v. Vanderkloot, US--24

• Decision Date: 27 September 1972
• Docket Number: No. 2,US--24,Docket No. 12394,2
• Parties: In the matter of the petition of the Michigan State Highway Commission for condemnation of private property for Highway, in Bloomfield Township, Oakland County, Michigan. MICHIGAN STATE HIGHWAY COMMISSION, Plaintiff-Appellant, v. Robert C. VANDERKLOOT and Clara A. Vanderkloot, Defendants-Appellees
• Court: Court of Appeal of Michigan — District of US

Page 22

204 N.W.2d 22

43 Mich.App. 56

In the matter of the petition of the Michigan State Highway Commission for condemnation of private property for Highway US--24, in Bloomfield Township, Oakland County, Michigan MICHIGAN STATE HIGHWAY COMMISSION, Plaintiff-Appellant, v. Robert C. VANDERKLOOT and Clara A. Vanderkloot, Defendants-Appellees.

Docket No. 12394.

Court of Appeals of Michigan, Division No. 2.

Sept. 27, 1972.

Leave to Appeal Granted Dec. 26, 1972.

Released for Publication Feb. 2, 1973.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Stanley D. Steinborn, Asst. Atty. Gen., for plaintiff-appellant.

L. Bennett Young, VanderKloot, Young & Reid, Birmingham, for defendants-appellees.

John M. Roche, Travis, Warren, Nayer & Burgoyne, Detroit, amici curiae.

Before GILLIS, P.J., and T. M. BURNS and TARGONSKI ^*, JJ.

GILLIS, Presiding Judge.

Plaintiff, Michigan State Highway Commission, acting pursuant to the statutory authority granted it in 1966 P.A. 295 as amended (M.C.L.A. § 213.361 et seq.; M.S.A. § 8.261(1) et seq.), deemed it necessary for the use and benefit of the public to widen and improve a segment of highway US--24, a free access highway running in and through the Township of Bloomfield, Oakland County, Michigan. In order to accomplish this public improvement, plaintiff found it necessary to take the title in fee simple to certain real estate along said route, including a portion of the property belonging to defendants herein.

Acting in accordance with §§ 6 and 7 of Act 295, plaintiff commenced condemnation proceedings on May 12, 1971 in the circuit court for the County of Oakland by filing a petition and demand for jury trial, a notice of taking and statement of estimated compensation, a declaration of taking, a statement of necessity, ¹ and an order for hearing on petition. On May 25, 1971, defendants filed a motion for a review of the determination of necessity, pursuant to § 8, Act 295 (M.C.L.A. § 213.368; M.S.A. § 8.261(8)), asserting in said motion that plaintiff had been guilty of abuse of discretion in determining the necessity of the taking of their property. The claim was based on the following allegations:

(1) '* * * Telegraph Road (Highway US--24) abutting the subject property adequately serves the necessity and interest of the traveling public * * *.'

(2) '* * * The property petitioner seeks to take * * * is a swamp area having increasingly rare or even unique ecological characteristics * * *.'

(3) '* * * The property petitioner seeks to take * * * (presents) * * * construction problems unnecessarily and unreasonably increasing the cost of the proposed improvement to the public.'

Defendants also filed a motion for accelerated judgment asking dismissal of the plaintiff's petition upon various grounds, the pertinent one to this appeal being as follows:

'said commission lacks the legal capacity to sue for the reason that Act 295, Public Acts of 1966 (M.C.L.A. 213.361 et seq.; M.S.A. 8.261(1)) is unconstitutional for the reasons that (a) said statute prescribes no reasonably defined standards for the exercise of the discretion required of the Commission under said Act and (b) the duties of the Commission are in conflict with the provision of Article IV, Section 52, of the Michigan Constitution of 1963.'

On the 15th, 18th and 21st days of June, 1971, a hearing was held before the Oakland County Circuit Court at which was considered defendants' motion for accelerated judgment. The court gave its opinion from the bench agreeing with defendants' contention that the Property For Public Highway Purposes Act (M.C.L.A. § 213.361 et seq.; M.S.A. § 8.261(1) et seq.) was unconstitutional. The court by way of explanation stated:

'The law and the statutes which have been invoked over the lands here in question are challenged as being unconstitutional because there are no standards for any land owner to have reliance upon. Now, it seems to this judge there is a fatal unconstitutional error when you say that a citizen has the right within ten days to challenge the determination made against his property on necessity upon the ground of abuse of discretion. It is difficult for this judge to follow how you can challenge abuse of discretion if you have never had an opportunity to be heard or you know nothing about what standards were employed. And that is why I feel that these laws here discussed are unconstitutional as to depriving the citizen here involved with due process of law. Certainly nothing is served by saying that a citizen who is a private property owner can challenge on the ground of abuse of discretion under these kinds of circumstances.'

On July 14, 1971, the Oakland County Circuit Court entered an order granting respondents' motion for accelerated judgment. This order stated in pertinent part:

'1. * * * The court finds that Act 295, PA of 1966 is unconstitutional for the reason that said Act denies due process to respondents in that there are no standards stated within the Act, either specifically or by reference, to define the authority of the petitioner to determine the necessity of taking private property for highway purposes pursuant to said Act, so that respondents may exercise the right of review for abuse of discretion granted under Section 8 of said Act * * *.

'2. * * * The court further finds that Act 295 of PA of 1966 is unconstitutional for the reason that the Act fails to provide for the protection of the natural resources of the State from pollution, impairment and destruction as required under Article IV, Section 52 of the Michigan Constitution of 1963 * * *.'

This appeal, instituted by the Michigan State Highway Commission, followed.

Addressing ourselves first to the due process ² challenge of unconstitutionality regarding 1966 P.A. 295 as amended (M.C.L.A. § 213.361 et seq.; M.S.A. § 8.261(1) et seq.), the basic issue that presents itself is: What does the due process guaranty require when there occurs a granting of administrative discretion regarding the invoking of the power of eminent domain? It has become impossible for the Legislature to deal directly with the host of details involved in the varied and complex situations on which it legislates, and, consequently, it has increasingly found it necessary to leave them to the reasonable discretion of administrative officers. It is important to understand that the prohibition against the legislature's delegation of its lawmaking powers does not mean that it cannot confer a power of discretion in the administration of the law itself. 1 Am.Jur.2d, Administrative Law, § 107, p. 906. Osius v. St. Clair Shores, 344 Mich. 693, 698, 75 N.W.2d 25 (1956). It is said that the bestowing of such discretion does not become an unconstitutional delegation of a legislative function where its exercise is controlled and guided by adequate standards in the statute authorizing it. 1 Am.Jur.2d, Administrative Law, § 107, pp. 906--907. On the other hand, a statute which in effect reposes an absolute, unregulated, and undefined discretion in an administrative agency subjects men's rights to be determined not by the law itself but instead by the let or leave of administrative officers, thus passing beyond the legitimate bounds of delegation of legislative power.

It is fundamental to an understanding of this case to recognize that the right of eminent domain is founded on the law of necessity. 26 Am.Jur.2d, Eminent Domain, § 2, p. 639. If the object can be affected practically as well in some manner other than by appropriating private property then a taking cannot occur under the guise of eminent domain. The taking, however, need not be an absolute necessity; it is sufficient that it is reasonably necessary for public convenience or advantage. 39 C.J.S. Highways §§ 26, 99, pp. 946, 1035. Each of the two most recent Michigan Constitutions preceding the present constitution contained eminent domain provisions which required that the necessity for taking private property for the use or benefit of the public be ascertained either by a jury of twelve freeholders or by a commission of not less than three commissioners appointed by a court of record. (Const.1908, art. 13, § 2; Const.1850, art. 18, § 2). However, there is no statement in the 1963 Constitution regarding the manner in which necessity is to be determined. Chamberlin v. Detroit Edison Co., 14 Mich.App. 565, 165 N.W.2d 845 (1968). It simply provides:

'Private property shall not be taken for public use without just compensation therefor being first made or secured in a manner prescribed by law. Compensation shall be determined in proceedings in a court of record.' Const.1963, art. 10, § 2.

It is well-settled to the point of being conceded by defendants that such a provision places the determination of necessity in the Legislature, which issue it may determine itself or delegate the power to do so. Hendershott v. Rogers, 237 Mich. 338, 341--342, 211 N.W. 905 (1927); 39 C.J.S. Highways § 27, p. 946; 26 Am.Jur.2d, Eminent Domain, §§ 111, 112, pp. 767--769; Bragg v. Weaver, 251 U.S. 57, 58, 40 S.Ct. 62, 63, 64 L.Ed. 135, 137 (1919). In the instant case, the Michigan Legislature has adopted a statute (1966 P.A. 295, as amended (M.C.L.A. § 213.361 et seq.; M.S.A. § 8.261(1) et seq.)) granting to the State Highway Commission the discretionary power of invoking the right of eminent domain to acquire certain property for highway purposes. The Act, however, provides a means by which an aggrieved property owner can challenge the Commission's determination of necessity:

'Within 10 days after the notice required by section 6 has been given, A person claiming fraud or Abuse of discretion, or both, In the necessity of the taking of all or any part of the property for the purposes stated in the petition, and having a justiciable interest in the property involved, may file a motion in the same court and cause, Asking that such necessity be reviewed. He shall give at...