Slum Clearance in City of Detroit, In re, 28

• Citation: 50 N.W.2d 340,331 Mich. 714
• Decision Date: 03 December 1951
• Docket Number: A,No. 28,28
• Parties: In re SLUM CLEARANCE IN CITY OF DETROIT. pril Term.
• Court: Supreme Court of Michigan

Page 340

50 N.W.2d 340

331 Mich. 714

In re SLUM CLEARANCE IN CITY OF DETROIT.

No. 28, April Term.

Supreme Court of Michigan.

Dec. 3, 1951.

Paul T. Dwyer, Acting Corp. Counsel, Vance G. Ingalls, Asst. Corp. Counsel, Detroit, for City of Detroit.

Shapero & Shapero, Detroit, for respondents, American Pipe & Supply Co.

Leemon & Leemon, Detroit, for respondents Benjamin Assik and Anna Assik, Minnie Weider, Madison Realty Co., and Dwellie Paschal and Sarah Paschal.

Marcus, Kelman & Loria, Detroit, for respondent Anna Reich.

Irwin Friedman, Detroit, for respondents Sarah Friedman and Betty Friedman.

Before the Enfire Bench.

REID, Chief Justice.

The petition in this matter was filed to institute condemnation proceedings to take private property for the public use or benefit, for the purpose of eliminating housing conditions detrimental to the public peace, health, safety, morals and welfare, and to aid in replanning and reconstruction of the area involved, in accordance with P.A.1937, No. 293, as amended, C.L.1948, § 125.601 et seq., Stat.Ann.1949 Rev. § 5.3057(1) et seq., P.A.1933, Ex.Sess. No. 18, as amended, C.L.1948, § 125.651 et seq., Stat.Ann.1949 Rev. § 5.3011 et seq., with the provisions of ordinance 262-C, and title 8, chapter 1, of the charter of the city of Detroit.

From judgment on a verdict determining the necessity for the taking of their property and award of damages, several owners of property involved, appeal.

A ground of appeal common to all appellants (defendants), is the order and decision of the court allowing defendants six peremptory challenges collectively and not five peremptory challenges to each defendant property owner, separately.

The proceeding was brought under the provisions of the Detroit city charter and the trial court (recorders court for the city of Detroit) followed the provisions of said charter in allowing six peremptory challenges to defendants collectively. The provisions of the charter in that regard are stated in title 8, chapter 1, sec. 6, as follows: 'The city on one side and the respondents and taxpayers on the other, shall have the right to challenge peremptorily three persons called to serve as jorors in each such proceedings; in the discretion of the judge of said court the number of peremptory challenges may be increased to not exceeding six on each side.'

Defendants claim that such charter provision is void as contravening the State statute, C.L.1948 § 618.40, Stat.Ann. § 27.1020, which is in part as follows: 'In all civil cases each party may challenge peremptorily 5 jurors'.

Defendants cite People v. Welmer, 110 Mich 248, 68 N.W. 141, which, however, was a criminal case governed by a statute differing from the statute and charter provision involved in this case.

C.L.1948, § 213.88, Stat.Ann. § 8.60 and C.L.1948, § 213.94, Stat.Ann. § 8.66, are sections of P.A.1883, No. 124, as amended, which is an act to provide for the condemnation by cities, villages and counties of private property for the use or benefit of the public, etc.

'The practice and proceedings of the recorder's court of the city of Detroit under this act relating to the summoning and excusing of jurors and talesmen and to imposing penalties upon them for nonattendance, shall be the same as the practice and proceedings of said court relative to petit jurors for the trial of criminal cases, but no peremptory challenges shall be allowed.' Stat.Ann. § 8.60.

Cities and villages now authorized under existing acts of incorporation or other special acts to take private property for public uses, may severally proceed under the provisions of their respective local charters or other special acts, or under the provisions of this act; and this act shall not be construed as in any way affecting or impairing the provisions of such local charters or special acts on the subject of taking private property for public use.' Stat.Ann. § 8.66.

C.L.1948, § 213.76, Stat.Ann. § 8.48, a section of the above cited act, does not allow any peremptory challenges in condemnation proceedings brought under that act.

The court was not in error in limiting the defendants to six peremptory challenges collectively, under the charter provision. Defendants are incorrect in relying on provisions for challenges in statutes which are not applicable in the instant proceeding.

Defendants further claim that the slum clearance condemnation proceeding is unconstitutional because the real estate, while taken for a public use, is, after objectionable buildings are razed, to be sold for redevelopment by private persons and that, considering the purposes of the condemnation as a whole, the proposed action is improper and unconstitutional, as condemning the lands of one private person to be devoted to the uses and purposes of another private person. Defendants cite Board of Health v. Van Hoesen, 87 Mich. 533, 49 N.W. 894, 14 L.R.A. 114. In that case we held irrelevant, incongruous and void, an amendment to an act, How.St. §§ 4763-4777, which as it originally stood was an act to encourage formation of private cemetery corporations, but the later amendment undertook to confer on boards of health, public corporations, the power of condemnation of lands for public purposes. However, in that case we did not say that a properly drawn suitably entitled act, could not be upheld which would confer on the public corporations the right to maintain condemnation of lands for the public purposes involved.

The provisions of the Detroit city charter involved in the case at bar are not subject to the objections raised in the Board of Health Case above cited.

In Berrien Springs Water-Power Co. v. Berrien Circuit Judge, 133 Mich. 48, at page 52, 94 N.W. 379, we held, that the water power sought to be developed by condemnation was private in its character and land cannot be condemned for the purpose of creating it. The question to be sumitted to the condemnation authority in that case is stated 133 Mich. on page 55, 94 N.W. on page 381 as, 'Does public necessity require that the land specified in relator's petition shall be taken to so improve the navigability of St. Joseph river that relator can operate thereon a transportation business and can obtain thereby the water power it desires?' The question of necessity in that case embraced at one and the same time, navigability (a public use) and water power (a private use). The act authorizing a determination that public necessity requires a taking for private purposes, was held unconstitutional, in that Water-Power Co. case.

In General Development Corp. v. Detroit, 322 Mich. 495, 33 N.W.2d 919, a suit instituted by a taxpayer, we held slum clearance to be a public purpose, and held to have been properly dismissed a taxpayer's bill which failed to show how the taxpayer would be prejudiced by a subsequent sale of the lands (after clearance). But in contradistinction to a case involving interests of a taxpayer, who shall pay less taxes because of the subsequent sale of the land and deduction from the general fund necessary to be raised for the slum clearance, in the case at bar, on the objection of owners of lands sought to be condumned, we are called upon to decide whether the provision authorizing a sale subsequent to clearance is a comingling and combination of a private purpose with a public purpose.

It seems to us that the public purpose of slum clearance is in any event the one controlling purpose of the condemnation. The jury were not asked to decide any necessity to condemn the parcels involved for any purpose of re-sale, but only for slum clearance. The one purpose of the instant proceeding (a public purpose) then is different from the two purposes in the Water-Power case, supra, in which the two purposes were concurrent; the height of the water to be attained and consequent area and extent of lands to be condemned was decisive of both the amount of power, a private purpose, and nevigability, a public purpose.

In the instant case, the resale [abating part of the cost of clearance] is not a primary purpose and is incidental and ancillary to the primary and real purpose of clearance. Reconstruction was asked for in the petition and resale is necessary for such purpose, but the resale is not for the purpose of enabling the city nor any private owner to make a profit.

The Supreme Court of Tennessee in Nashville Housing Authority v. City of Nashville, Tenn.Sup., 237 S.W.2d 946, say on page 948: 'To remove health, crime and fire hazards by slum clearance, is clearly a proper and reasonable exercise of the police power. This removal is effected by slum clearance simpliciter and the fact that under the subsequent rehabilitation or restoration, the cleared area under a...