People v. Bristol

• Citation: 20 Mich. 95
• Court: Supreme Court of Michigan
• Decision Date: 05 April 1870
• Parties: The People ex rel. Ira C. Bristol et al. v. The Board of Supervisors of Ingham County

20 Mich. 95

The People ex rel. Ira C. Bristol et al. v. The Board of Supervisors of Ingham County

Supreme Court of Michigan

April 5, 1870

Heard January 8, 1870 [Syllabus Material] [Syllabus Material] [Syllabus Material]

Certiorari: To The Board of Supervisors of the County of Ingham.

In 1849, certain Commissioners appointed by the Legislature of 1848, (Laws of 1848, p. 220), laid out and established a State Road from Marshall, in the County of Calhoun, by the way of Duck Lake and Eaton Rapids, (in Eaton County), to Lansing, in the County of Ingham. The road passing through the townships of Delhi and Lansing in the last named county.

The road is alleged to have been opened and worked and used as a public highway for over fifteen years.

On the 15th day of October, 1867, the Board of Supervisors of the County of Ingham, by resolution purported to discontinued so much of this road as runs diagonally across the east half of the northeast quarter of section 32, in the township of Lansing.

The only petition presented to the Board for this discontinuance was that of eighteen freeholders of the township of Lansing. The Commissioners of Highways, however, certified to the board that this part of the road was unnecessary, and recommended its discontinuance, and that the survey should be so changed as to run around the southwest corner of said eighty acre lot "on the line of the present highway."

The board did not, before passing the resolution of discontinuance, adopt any resolution authorizing the Commissioners of this or any other township, to cause the line of the state road to be surveyed and located in such township; nor do they appear to have had any report of such survey before them.

The writ of certiorari was issued from this Court, February 24, 1869, at the instance of the plaintiffs in error, who do not claim to own any land along that part of the road thus discontinued; but they describe themselves as of the County of Ingham, and as owners of property on the line of the road, and having occasion to travel it almost daily. They allege that the road is one on which there is a large amount of travel, and that the discontinuance of this portion of it works a great hardship and inconvenience, imposing unnecessary travel on all persons using the road, and that it materially depreciates the value of the petitioners' property by depriving them of a direct road to the city of Lansing.

On the 30th of March, 1869, after the issuing of the writ in this case, the Legislature (Laws of 1869, vol. 3 p. 1082), passed the following act: "That the action of the Board of Supervisors, of the County of Ingham, in discontinuing that portion of the Lansing, Eaton Rapids and Marshall State Road, running diagonally across the east half of the northeast quarter of section thirty-two, in the township of Lansing, be and the same is hereby legalized," and this act is declared to take immediate effect.

Discontinuance affirmed. Proceedings sustained, respondents entitled to costs.

Longyear & Serger, for relator.

I. From the record it does not appear that proper petition was ever filed. The statute requires the petition of at least twelve freeholders of each of the townships through which the road passes. C. L. vol. 1. p. 365, § 2.

This road passes through nine different townships. The reason for this requirement is obvious. These roads are built under the supervision of the State authorities, for the benefit of no particular locality, but of the State at large.

If, however, the Court should hold that a more limited interpretation is to be given to the language of the statute, and should construe it as requiring the petition to be signed only by freeholders of the townships of that county to whose Board of Supervisors it is presented, the petition in this case is still insufficient. The road passes through two townships in the County of Ingham--Lansing and Delhi--but the petition is signed by the freeholders of Lansing only. We contend therefore, that the Board never had jurisdiction of the subject matter.

II. There was no reference to, or report by the Commissioners of Highways for the township of Lansing; there was no declaration that the discontinuance was for public interest.--Bergen Turnpike Co. v. State, 1 Dutcher 554; Keenan v. Comr's Court of Dallas Co., 26 Ala. 568.

III. But the most important question in the case arises under Act No. 383, Session Laws 1869.

a. Retrospective statutes have, even when upheld, always been construed by the courts with great strictness. Their operation must not be enlarged by implication or intendment.

b. But if it be held that the Legislature attempted to confer jurisdiction where none existed at the time of the action complained of, then the statute is clearly an excess of legislative power. Irregularites in proceedings may possibly be cured, as the proceedings would not be void, but only voidable. Failure of jurisdiction cannot be supplied. The rule as adopted we understand to be this:--If the proceeding is voidable merely, a healing statute may render it valid, but if absolutely void, it cannot be affected by any subsequent legislation.--McDaniel v. Correll, 19 Ill. 226.

c. Retrospective statutes touching subject matter, cannot affect actions pending at the time of their passage, though statutes applying only to the remedy or to rules of evidence may.--Denny v. Matoon, 2 Allen 377; Taylor v. Place, 4 R. 1. 337; Gaines v. Gaines, 9 B. & M., 300-1-2.

In any event petitioners should have costs, as at time action was commenced proceedings were irregular. They should not be charged with costs on account of legislation taking away their cause of action.

H. B. Carpenter and F. A. Baker, for respondents.

I. The Marshall and Lansing State Road was established under an act of the Legislature, approved April 1, 1848. (S. L. 1848, 220.) The Board of Supervisors have full control over the opening, altering, and discontinuing of State and Territorial roads.--Comp. L. §§ 1081, 1085; Comp. L. §§ 359, 363; People v. Nankin, 15 Mich. 347.

We insist that, independant of any petition by freeholders, as provided for under sections 360 and 1082, of the Comp. Laws. the Board of Supervisors possessed the power, under § 11, Art. 10 of the Constitution, and §§ 359 and 1081, of the Comp. L., to discontinue on its own motion, any portion of the Marshall and Lansing State Road, lying within the County of Ingham.

The resolution does not declare that the Board deemed it for the interest of the public to discontinue the road; but that will be presumed.

II. By the points raised in the petition, it would seem that the counsel for the relators consider that the legality of the action of the Board of Supervisors, depends entirely upon the fact whether or not there was a strict compliance with the provisions of §§ 360 and 1082, of the Compiled Laws.

But by a careful examination of §§ 360 and 1802, of Comp. L., it is evident that they relate entirely to state roads that have been authorized by the Legislature, and have not been surveyed and located; it being provided that upon the coming in of the report of the Highway Commissioners, the Board of Supervisors may declare such road or roads as surveyed and located by the Commissioners, duly laid out, established, discontinued, opened, or altered, the word "discontinued" being used to give the Board power, not to discontinue a road that has been declared duly laid out and established, but to discontinue the survey and location determined upon by the Highway Commissioners.

III. In the case at bar, the action of the Board of Supervisors was legalized by the Legislature by an act approved March 30, 1869.--3d vol. S. L., 1869, 1082.

We submit: 1st. That this act cures any supposed illegality in the proceedings. 2d. That it may be considered a discontinuance of the road by the Legislature itself. The Constitution does not prevent the Legislature from discontinuing state roads.--Art. 4 § 23.

OPINION

Christiancy, J.

If the action of the Board of Supervisors under the then existing law, constituted of itself, or with the aid of the subsequent act of the Legislature of March 30, 1869, (ratifying and legalizing that action), a valid discontinuance of part of the state road in question, then there is no ground for maintaining this certiorari, and the discontinuance must be affirmed, otherwise reversed.

By the act of May 16, 1846, (Laws of 1846, p. 240), it was enacted, Section 1, "That the Board of Supervisors of the several counties within this State are hereby authorized and empowered to cause to be laid out, established, altered, discontinued or opened all State and Territorial Roads, heretofore or now laid out or hereafter to be laid through or within their respective counties, whenever they may deem it for the interest of the public."

Section 2. Whenever the Board of Supervisors of any county are petitioned to by at least twelve freeholders of each of the townships, through which any such road or roads may pass they shall upon...