People ex rel. Goldsmith v. The Highway Commissioners of Nankin

• Decision Date: 07 May 1867
• Citation: 15 Mich. 347
• Court: Michigan Supreme Court
• Parties: The People ex rel. G. R. Goldsmith v. The Highway Commissioners of Nankin

15 Mich. 347

The People ex rel. G. R. Goldsmith v. The Highway Commissioners of Nankin

Supreme Court of Michigan

May 7, 1867

Heard April 25, 1867 [Syllabus Material] [Syllabus Material]

Certiorari to the commissioners of highway of the township of Nankin.

The commissioners of said township made an order discontinuing a portion of the Monroe and Pontiac territorial road, running through the village of Wayne. And this writ was brought to review their proceedings.

Proceedings of the commissioners reversed for want of jurisdiction.

H. M. & W. E. Cheever, for relator:

1. Admitting that all the proceedings are valid in form, we insist that highway commissioners have no power to discontinue a territorial road. If the power exists at all, without the intervention of a "jury" or "commissioners of a court of record," it is expressly delegated to the supervisors of the county. Under the old constitution no jury was required in laying out or discontinuing highways; and an act was passed giving to the board of supervisors power "to lay out, alter or discontinue all state or territorial roads:" Comp. L., p. 364; Sess. L. 1861, p. 261; Sess. L. 1867.

2. There is no power either in highway commissioners or the board of supervisors to act in any case under the constitution of 1851, without the intervention of either a "jury" or "commissioners appointed by a court of record:" Constitution, art. 18, §§ 2, 14; Id., art. 15, § 15; Id., art. 10, § 11; Sess. L. 1860; 4 Mich. 95.

3. If it be urged that in discontinuing a road no "private property" is "taken" for public use, we answer:

a. If the whole matter is committed to the board of supervisors by the constitution, no statutory enactment can give it to the highway commissioners.

b. The discontinuance of a road may be just as effectual a "taking" of private property as the opening of one. Whatever hinders or obstructs the use of property, virtually takes it away. The "taking" contemplated is not an annihilation, but a preventing of the use. So the discontinuing a highway by which access is obtained to land, depreciates, or wholly destroys, as the case may be, the value of the land. The value is in the use. The use gone, the value is gone.

We submit the proceedings of the commissioners are void, and should be set aside.

Moore & Griffin, for respondent:

It is contended by counsel for relator:

First. That the power of laying out highways is committed exclusively to the board of supervisors by the constitution: Art. 10, § 11.

Second. That, in any event, the highway commissioners can not act except through the intervention of a jury, or of three commissioners: Art. 18, § 2.

1. In 1856 this court decided the act of 1848 repugnant to the provisions of section two, article eighteen, of the constitution adopted in 1851.

Subsequent legislation demonstrates that, in the view of the law-making power, "the charge of this matter" was not committed exclusively to the board of supervisors.

Prior to the adoption of the constitution, in 1851, the power of the legislature to authorize highway commissioners to lay out a highway, is conceded.

Under the operation of the above decision, there was no law providing for the laying out of highways. At its next session of 1857, the legislature passed an act authorizing the highway commissioners to lay out, etc., a highway. Section eleven, article ten, of the constitution, was not considered by the legislature itself a limitation or restriction of its power to authorize highway commissioners to lay out highways, or we should not have the act of 1857; nor yet the joint resolution of 1859, recognizing the validity of such grant of power to the highway commissioners; nor the act of 1861.

Some respect is due to the opinion of a co-ordinate power of the government: 17 N. Y., 241.

2. This act is not repugnant to the provisions of section two, article eighteen, as amended in 1860.

The amendment removed all constitutional difficulty: Sess. L., 1859, p. 1102.

That it was the intention of the legislature which passed the joint resolution to clothe the highway commissioners with power to act without the intervention of a jury, is obvious from the whole history of legislation on this subject.

"The official discharge of their duties as highway commissioners," refers particularly to the official discharge of their duty in relation to the laying out, altering, and discontinuing highways.

All prior statutes had made it such--the subsequent act of 1861 made it such.

There are but few, if any, other acts of highway commissioners to be performed in the "official discharge of their duty," as provided by law, which conflicted with this provision of the constitution, prior to the amendment.

But granting that the act is unconstitutional so far as it authorizes highway commissioners to lay out a highway, may it not be constitutional so far as it authorizes them to discontinue a highway?

A law, unconstitutional in some of its provisions, may be valid as to the remainder: Cooley's Digest, 611, cases cited.

The constitution has not expressly given to the board of supervisors power to discontinue a highway. Neither is discontinuing a highway taking private property for public use, within the meaning of section two, article eighteen.

On opening a highway, the public take the use and not the fee.

For such taking, the law provides the owner shall be compensated in damages. If the owner is once compensated for the taking of his property, must he also be paid when it is returned to him?

It is of no consequence that such taking indirectly affects the value of the adjacent property: 4 N. Y., 205.

3. The act of 1846--Comp. Laws, § 1081--shared the fate of the act of 1848, and was annulled by the decision of this court, as repugnant to section two, article eighteen, of the constitution.

In the absence of any special act providing for the laying out, etc., of state and territorial roads, it was undoubtedly the intention of the legislature to grant such powers to the highway commissioners.

Cooley, J. Campbell and Christiancy, JJ. concurred. Martin, Ch. J. concurred in the result.

OPINION

Cooley J.:

The first objection to the jurisdiction of the commissioners in this case is a want of constitutional power. If the objection is valid, it must be so either, first, because power to lay out, alter and...