New Products Corp. v. Ziegler

• Decision Date: 07 March 1958
• Docket Number: No. 41,41
• Citation: 88 N.W.2d 528,352 Mich. 73
• Parties: NEW PRODUCTS CORPORATION, a Michigan Corporation, Plaintiff and Appellant, v. Charles M. ZIEGLER, Michigan State Highway Commissioner, Defendant and Appellee.
• Court: Michigan Supreme Court

Page 528

88 N.W.2d 528

352 Mich. 73

NEW PRODUCTS CORPORATION, a Michigan Corporation, Plaintiff and Appellant, v. Charles M. ZIEGLER, Michigan State Highway Commissioner Defendant and Appellee.

No. 41.

Supreme Court of Michigan.

March 7, 1958.

Hartwig & Crow, J. D. Hartwig, J. T. Hammond, Benton Harbor, for condemnee-plaintiff.

Thomas M. Kavanagh, Atty. Gen., Joseph A. Sullivan, Deputy Atty. Gen., Samuel J. Torina, Sol. Gen., Lansing, Samuel D. Frane, Asst. Atty. Gen., for State Highway Com'r.

Before the Entire Bench.

CARR, Justice.

This case has resulted from proceedings by the State highway commissioner in a project involving trunkline highways US-31 and US-12, in Berrien county. As part of certain changes contemplated, the relocation of US-12 through the city of Benton Harbor was considered desirable. The plans for the project were intended to be carried out in accordance with the provisions of P.A.1925, No. 352, as amended. ¹ As required by section 1 of said act, as amended (C.L.1948, § 213.171 [Stat.Ann.1957 Cum.Supp. § 8.171]), the approval of the city commission of Benton Harbor was given by resolution adopted June 8, 1953, which resolution indicated the route of the relocated highway and also provided for the abandonment of a section of trunkline US-12 as it existed at the time. Further reference to this resolution will be hereinafter made in connection with certain questions raised by appellant.

Under date of April 13, 1955, the State highway commissioner, hereinafter referred to as the commissioner, issued notice of hearing 'on the necessity of the proposed construction and improvement, and on the taking of these particular interests in land therefor.' Attached to said notice was a statement containing the description of certain parcels of land owned by New Products Corporation, appellant herein. Reference was made in the notice to plans for the contemplated project, referred to in the record as No. 11-56(U), on file in the office of the commissioner. It was also recited that efforts to purchase the said interests in lands described in the statement had been unsuccessful, and that the hearing required by section 4 ² of the act of 1925, above cited, would be held before a deputized representative of the commissioner on Monday, May 2, 1955, at the courthouse in the city of St. Joseph.

The notice of hearing was duly served, and in accordance therewith the commissioner designated Edward J. Kremer to act as his representative, and to conduct the hearing on the question of necessity and of the taking of the lands described. Said hearing was held June 7, 1955. The commissioner on January 3, 1956, entered an order reciting the holding of the hearing, and determining that the improvement was necessary, that the taking of the lands referred to in the statement attached to the notice of hearing was likewise necessary, and that the amount of damages to be paid, as estimated by him, was $37,500.

Following the order of determination, New Products Corporation made application to the circuit court of Berrien county for a writ of certiorari to review the proceeding taken, with particular reference to the conduct of the hearing on necessity. The writ was duly issued, and the motion of the commissioner to dismiss it was denied. Thereafter the matter came on for hearing on the pleadings and the arguments of counsel. On November 26, 1956, an order was entered affirming the determination of necessity, and granting the motion to quash the writ of certiorari. On leave granted the New Products Corporation has appealed to this Court, claiming that the circuit judge erred in certain conclusions of law set forth in his opinion, and that the order entered should be reversed. On behalf of the commissioner it is contended that all constitutional and statutory requirements were observed in the proceeding, and that the action of the trial court should be affirmed.

In support of its claim that necessary requirements with reference to due process of law were not observed in the holding and conducting of the hearing on necessity, appellant insists that P.A.1952, No. 197, as amended (C.L.S.1956, § 24.101 et seq. [Stat.Ann.1952 Rev. & Stat.Ann.1957 Cum.Supp. § 3.560(21.1) et seq.]), prescribing requirements as to administrative procedure before State agencies, was applicable to the hearing on necessity, but was not followed. It is conceded that said hearing was conducted with reference to the expressed requirements of P.A.1925, No. 352, as amended, above cited. It is appellee's claim that said Act No. 197 does not apply, and that the circuit judge was correct in so holding.

The first section of the act of 1952, as amended by P.A.1953, No. 103, reads as follows:

'For the purposes of this act:

'(1) 'Agency' means any state board, commission, department, bureau or officer, authorized by law to make rules or to adjudicate contested cases, except the workmen's compensation commission, the employment security commission, the department of revenue, the public service commission and those in the legislative and judicial branches.

'(2) 'Rule' includes every regulation, standard, or statement of policy or interpretation of general application and future effect, including the amendment or repeal thereof, adopted by an agency, whether with or without prior hearing, to implement or make specific the law enforced or administered by it or to govern its organization or procedure, but does not include regulations concerning only the internal management of the agency and not directly affecting the rights of or procedures available to the public, nor such rules and regulations of the state department of health as may be necessary during emergencies, Floods, epidemics, invasion or other disasters; nor emergency rules, regulations and orders issued under section 16 of Act No. 61 of the Public Acts of 1939, as amended, being section 319.16 of the Compiled Laws of 1948; nor emergency rules, regulations and orders issued under section 22 of Act No. 326 of the Public Acts of 1937, as amended, being section 319.72 of the Compiled Laws of 1948; nor to the necessity hearings by county road commissions and the state highway commissioner which are required by Act No. 352 of the Public Acts of 1925, as amended, being sections 213.171 to 213.199, inclusive, of the Compiled Laws of 1948.

'(3) 'Contested case' means a proceeding before an agency in which the legal rights, duties or privileges of a specific party or specific parties are required by law or constitutional right to be determined after an opportunity for an agency hearing.'

Section 2 of said act further provides that, in addition to other requirements imposed by law with reference to rules, each agency subject to the provisions of the act shall adopt rules governing the procedures prescribed or authorized thereby. Such provision is significant in view of the obvious purpose of the administrative agency procedure act as set forth in the title and in the language of the legislature in the enactment of the requirements imposed, and also in view of the final clause of section 1 which was added by the amendment of 1953, above cited. It is clear that the legislature in adding the provision with reference to necessity hearings by county road commissions and the State highway commissioner intended that as to such hearings the adoption of procedural rules applicable thereto should not be required. The specific reference to P.A.1925, No. 352, suggests that it was the purpose of the legislature to leave necessity hearings to be governed by the provisions of the earlier act.

On behalf of appellee it is argued that a so-called necessity hearing does not involve the adjudication of a contested case, and that it is, as a practical proposition, in the nature of an inquest as the basis for a determination of the matters at issue, that is, the making of the improvement and the taking of specific property therefor. It is preliminary to the subsequent proceedings contemplated by the act of 1925, as amended. It is a fair inference that such was the view of the legislature in providing that rules of procedure as prescribed for administrative agencies subject to the act of 1952 were not required to be a adopted for use on necessity hearings conducted under the statute pertaining to construction and improvement of highways. Such conclusion is in accord with the general purpose and spirit of the administrative agency procedure act.

The statute makes provision for review of decisions generally. Obviously, however, a determination of want of necessity could scarcely, for practical reasons, have been intended to be subject to such review. Further discussion of this phase of the case is not required. The legislative intent and purpose clearly appear, and the courts must be governed accordingly. The trial court determined the issue in favor of appellee, and we are in accord with that conclusion.

The resolution of the city commission of Benton Harbor, above mentioned, was as follows, insofar as material:

'Whereas, the State Highway Commissioner of the State of Michigan has requested approval by the City of Benton Harbor, of the changes by him, of that part of State trunkline highway US-12, US-31 (shown on the attached sketch map), bearing State Highway Department approval and dated May 19, 1953, lying wholly within the corporate limits of the said City:

'Now Therefore, be it resolved:

'(1) That the approval and consent of the City of Benton Harbor be and is hereby given for the establishment as state trunkline highway, the location described as follows:

'Commencing on the east limits of the City of Benton Harbor at a point near the intersection of Fair and Waukonda Avenues; thence westerly in the City of Benton Harbor on or near Waukonda Avenue to Paw Paw Avenue; thence continuing westerly across the C. & O. Railroad and westerly on or near Klock Road to connect with the proposed new route of US-31. (/...