Specht v. Detroit

• Decision Date: 12 April 1870
• Citation: 20 Mich. 168
• Court: Michigan Supreme Court
• Parties: Ferdinand Specht v. The City of Detroit

20 Mich. 168

Ferdinand Specht v. The City of Detroit

Supreme Court of Michigan

April 12, 1870

Heard April 8, 1870 [Syllabus Material]

Certiorari: To the Recorder's Court for the City of Detroit, to review the proceedings for opening and extending an alley between Lafayette avenue and Howard street, from the west line of the Woodbridge Farm to Twelfth street, in the Ninth Ward of the City of Detroit.

On 18th May, 1869, the Common Council passed a resolution, as follows:

"Be it resolved, by the Common Council of the City of Detroit That it is necessary to open and extend an alley between Lafayette avenue and Howard street, from the west line of the Woodbridge Farm to Twelfth street, in the Ninth Ward, described by metes and bounds, courses and distances as follows: All that part of Lognon and Thompson farms bounded and described as follows: Commencing at," &c., [describing the premises.]

"And be it further resolved by the said Common Council, That the City Attorney be and he is hereby directed to apply to the Recorder's Court for the drawing and empaneling of a jury required in such cases, and to give notice in accordance with the city charter."

The notice given by the City Attorney in pursuance to the direction of the Common Council is in the following terms:

"Alley in the Ninth Ward.--Notice is hereby given that the Common Council of the city of Detroit have determined to open and extend an alley between Lafayette avenue and Howard street, from the west line of the Woodbridge Farm to Twelfth street, in the Ninth Ward, which said improvement is described as follows: All that part of the Lognon and Thompson farms, bounded and described as follows: Commencing at," etc., description as in the resolution "and to take therefor such private property within said limits as may be necessary for said improvement, and that on Thursday, the 8th day of July, A. D. 1869, in accordance with the instructions of said Common Council, I shall apply to the Recorder's Court of said city, at 9 o'clock in the forenoon of that day, to have a jury of twelve freeholders drawn and empaneled, to determine the necessity for using said property for said improvement, and to apportion and assess the compensation to be paid to the several owners or persons entitled to receive the same, to and upon all lots, premises or subdivisions thereof which will be benefited by the proposed improvement.

The jury was empaneled on the 8th of July,--the day appointed in the notice. The report of the jury was filed on the 19th of July, and on the 5th of August it was confirmed in the Recorder's Court. In the award of benefits and damages, as found by the jury, Ferdinand Specht was assessed for benefits over his damages, the sum of $ 118.41. Specht, in his affidavit for the allowance of a certiorari, states that he had been informed before the confirmation of the proceedings by the Recorder's Court, that the proceedings were in many respects irregular and insufficient; some of these defects, he states, were pointed out to the City Attorney and City Counsellor; and that he received the impression, from what was said by these officers, that these proceedings would be withdrawn, or not confirmed. They were however confirmed by the Common Council; who, on the 17th of August, ordered the alley opened; and on the 27th he obtained the allowance of a writ of certiorari to remove the proceedings to this Court.

Proceedings in the Court quashed with costs.

G. H. Prentis and T. Romeyn, for plaintiff in error.

J. J. Brown, City Attorney, for defendant in error.

OPINION

Graves, J.

It is objected by the city that this proceeding by certiorari is not warranted, because the plaintiff in the writ had a complete remedy by appeal, of which he neglected to avail himself, and thus having suffered the time for appealing to pass without an effort to resort to that mode before suing out the certiorari, the judgment of the Recorder's Court became conclusive.

The authority to award the writ in this class of cases results from the Constitution and cannot be taken away by legislative enactment. It is true that legislative provisions in given instances, may supersede the necessity for reviewing questions in this form, but the propriety of proceeding by certiorari in those cases, to which by the principles of the common law it is rightly adapted, must depend upon a sound judicial discretion. Upon this point we reiterate what was said in Farrell v. Taylor, 12 Mich. 113, that "the power is one which should be exercised sparingly in cases where other adequate remedies can be had; and when a decision can be taken up by appeal, and on that appeal the jurisdictional questions as well as those arising on the merits can be fully disposed of, a certiorari should not be allowed, unless circumstances exist, which show that a failure of justice will result from denying it."

The proceeding now sought to be reviewed was one promoted by the city to condemn the property of Specht to a public use, and it is materially different in its nature and course, as also in its consequences, from an ordinary litigation between party and party, and the courts in such cases have never been accustomed to make rigid application of the rules recognized in ordinary actions, under the head of waiver. Indeed the legal tribunals have generally found it necessary to the ends of justice, in matters of this kind, to incline somewhat towards indulgence, and, without enlarging their jurisdiction, to amplify the...