Shizas v. City of Detroit

• Decision Date: 07 April 1952
• Docket Number: No. 72,72
• Citation: 52 N.W.2d 589,333 Mich. 44
• Parties: SHIZAS et al. v. CITY OF DETHOIT.
• Court: Michigan Supreme Court

Page 589

52 N.W.2d 589

333 Mich. 44

SHIZAS et al. v. CITY OF DETHOIT.

No. 72.

Supreme Court of Michigan.

April 7, 1952.

Irwin I. Cohn, Detroit (Avern L. Cohn and John Sklar, Detroit, of counsel), for plaintiffs and appellants.

Paul T. Dwyer, Acting Corp. Counsel, Vance G. Ingalls, Asst. Corp. Counsel, Detroit, for defendant and appellee.

Before the Entire Bench.

CARR, Justice.

This suit was brought in circuit court to enjoin the condemnation of certain property in the city of Detroit, the area in question being described as bounded by Monroe, Randolph, Bates and Farmer streets. The bill of complaint alleged that the proceeding was being taken by defendant pursuant to and in reliance on P.A. 1947, No. 286 ¹, that said act is for various reasons unconstitutional, and that resolutions adopted by the common council of the city in accordance therewith are likewise invalid. It was further set forth in the pleading that plaintiffs were residents and taxpayers of the city of Detroit, and that they were doing business in leased premises on Monroe street. They asserted that irreparable injury would result to them if the property is condemned.

Defendant filed its answer to the bill of complaint denying the invalidity of the statute and of the proceedings taken thereunder and that plaintiffs were entitled to the relief sought by them. A motion to dismiss on the ground that the facts pleaded were not sufficient to establish an equitable cause of action was incorporated in the answer. Subsequently, on hearing, such motion was granted, the trial court concluding that the statute is constitutional and that the proceedings taken thereunder were not invalid for the reasons urged by plaintiffs. An order was accordingly entered dismissing the bill of complaint, and plaintiffs have appealed.

The statute in question, P.A. 1947, No. 286, is entitled: 'An Act to authorize cities to acquire and operate automobile parking facilities for the use of the public; to provide the manner of acquiring and financing the same; and to authorize the leasing of space therein for other uses.'

The first section provides, in accordance with the object indicated by the title, that any city may acquire, extend and operate, automobile parking facilities for the use of the public, and that any such project may be financed by the issuance of revenue bonds as provided in P.A. 1933, No. 94, as amended. ² Provision is made for the acquiring of property by purchase or condemnation, and for the operation of any parking facility jointly with such facilities at other locations within the municipality. The establishment of such facility for the public use is authorized without the approval of the electors, notwithstanding any statutory or charter provision to the contrary. Section 2, which is of particular moment in the instant case, reads as follows: 'The legislative body of the city may lease for purposes other than the parking of automobiles, upon such terms and for such periods as it shall deem advisable, any portion of the ground and basement floor space in any structure acquired hereunder, but not to exceed 25 per centum of the total floor area of the entire structure, if it shall deem such leasing to be beneficial in connection with the acquirement and/or operation of such facilities. If a structure is designed for the parking of automobiles on the roof, such roof area shall be considered as a part of the floor area of the structure. The income from any such lease shall be deemed a part of the revenues of the facilities: Provided, however, That no business involving the servicing, repairing or the furnishing of supplies for motor vehicles other than the parking of such vehicles and the delivery thereof shall be dispensed or furnished at or in connection with any municipal parking facility.'

Following the enactment of the statute, the common council of the city adopted ordinance 213-E, effective January 1, 1948, providing for the creation of a municipal parking authority for the general supervision of all municipal facilities for the parking of automobiles and to make recommendations to the common council and the mayor pertaining thereto. The bill of complaint averred that on November 4, 1949, the municipal parking authority created pursuant to the ordinance submitted to the council its report, accompanied by recommendations and a suggested ordinance. This report proposed, among other things, that the site above referred to be condemned and a structure erected thereon containing space for the parking of 780 motor vehicles and also for 22 retail stores on the ground floor. It was estimated in such report that the total cost of the facility would be $3,221,000, with an annual gross revenue of $553,900 consisting of $183,000 by way of store rentals and $370,900 from parking fees. The total operating cost was estimated at $293,800 leaving a net revenue in the sum of $260,100.

It does not appear that any action was taken on the proposed ordinance, which set forth in detail provisions for financing the project in accordance with P.A. 1933, No. 94, as amended, above cited. However, on February 14, 1950, the common council adopted a resolution directing the corporation counsel to prepare a resolution for the condemnation of the property bounded by Monroe, Farmer, Bates and Randolph streets 'for a parking structure as outlined in the report submitted by the municipal parking authority', and to submit such resolution for consideration. Apparently this was done, and under date of May 16, 1950, the council adopted a resolution providing for the acquision of the property in question for 'off-street automobile parking facilities and other municipal purposes.' Said resolution referred to the prior action taken on February 14 whereby approval had been given to 'the acquisitions of land for off-street automobile parking facilities and other municipal purposes.'

The resolutions of the common council, construed together, indicate the purpose for which it undertook to authorize and direct the condemnation proceeding of which plaintiffs complain. It appears that the project contemplated included the construction of a building as recommended by the municipal parking authority, in which there would be facilities for parking 780 motor vehicles, with 22 stores on the first floor of the structure to be rented for the purpose of producing revenue. No claim is made by plaintiffs that the aggregate floor space occupied by the proposed stores would exceed 25% of the total area. Neither is it claimed by defendant that such space could not be used for the parking of motor vehicles or that it would be, in any sense of the term, 'excess space.' It is not disputed that the demand for parking facilities in this section of Detroit greatly exceeds the provision made therefor under the plan of the municipal parking authority. It is defendant's theory, however, that since the total area assigned to the construction of retail stores is materially less than that set aside for the use of the public, and does not exceed the 25% limitation imposed by the statute, it should be regarded as merely incidental to the public use sought to be served. It may be noted also in this connection that while the revenue from the rents derived from the stores is to be credited to the facility, no claim is made that the public project cannot be effectuated without the obtaining of revenue therefor in the manner indicated.

The attack on P.A. 1947, No. 286, is directed in the main at the providions of section 2, above quoted. On behalf of plaintiffs it is insisted that the legislature has undertaken to authorize the condemnation of private property for two separate and distinct uses, one public and the other essentially private in character. The argument is advanced that this is inconsistent with the nature of the power of eminent domain. Such power is inherent in every sovereign government, and does not depend for its existence on constitutional provisions. It has, however, been repeatedly recognized by the courts that such provisions may limit and direct the exercise of the sovereign prerogative. It has been recognized generally also that under sufh restrictions, either expressed or implied, private property may not be taken for other than a public use. In 18 Am.Jur. pp. 657, 658, it is said: 'It is to be noted that few, if any, of the state Constitutions in terms prohibit the taking of property by authority of the state for uses that are not public. The characteristic provision found in the Constitutions of the several states, and in that of the United States as well, is to the effect that property shall not be taken for the public use without just compensation. Nevertheless, while the courts have not been in agreement on the precise meaning of the term 'public use,' it has been held, without a single dissenting voice, that the state does not have power to authorize the taking of the property of an individual without his consent for the private use of another, even on the payment of full compensation.'

And in 29 C.J.S., Eminent Domain, § 3, pages 781, 782, appears the following summarization with reference to the effect of provisions in the State and Federal Constitutions: 'As appears in § 2 supra, the right of eminent domain exists independently of constitutional provisions; it is not conferred, but may be recognized, limited or regulated, by the constitutions, which, aside from requiring that the use for which the power is exercised be a public one, or that compensation be made, or both, operate only on the mode of exercising the right.'

This Court has heretofore indicated its approval of the basic principles summarized in the above quotations. Hendershott v. Rogers, 237 Mich. 338, 211 N.W. 905; In re Brewster Street Housing Site, 291 Mich. 313, 334, 289 N.W. 493.

The language of the statute here in question undertakes to give absolute authority to the legislative body of the city to...