Campau v. City of Detroit

14 Mich. 276 | Mich. | 1866

Cooley J.

We do not think the resolution of the Common Council for the opening of Russell Street, is open to the objection made to it. The resolution can properly require an apportionment of the damages among the premises benefitted, only in those cases in which such apportionment can actually be made under the Charter. But in the case of opening a street the Charter expressly provides that the damages shall be payable out of the city treasury, and the means therefor raised with the general city taxes.— Charter, ch. 7, § 11.

Nor can the proceedings be held void because notice of the resolution was not served earlier. The resolution was adopted August 8th, and the hearing fixed for September 18th. Notice was served on the last of the parties September 9th. The Charter requires it to be served “ as soon as practicable,” and return to be made at least six days before the time appointed for the hearing. There is nothing before us to show that an earlier notice was practicable in this case, and no question of law can therefore arise in respect to it. The return appears to have been made within the time required. The principle question in the case is, whether there is now any provision of law under which streets can be opened in the City of Detroit. The question arises upon legislation which is supposed to be unconstitutional. The Constitution, Art. 18, § 2, requires that “ when private property is taken for the use or benefit of the public, the necessity for using such property, and the just compensation to be made therefor, except when to be made by the State, shall be ascertained by a jury of twelve freeholders, or by commissioners, etc.” Another section requires a jury in all'cases where property is taken for public improvements in cities and villages. Art. 15, § 15. An addition was made to this section, 2 of Art. 18, by amendment submitted to the people by the Legislature of 185 9, which exempted “ the action of commissioners of highways, in the official discharge of their duty as highway commissioners,” from its operation. This amendment cannot be held to include the municijjal authorities of cities under the designation of “ highway commissioners.” The amendment plainly refers to the officers designated elseAvhere in the constitution and statutes by that name, and Ave are not warranted in extending it to include-other officers or authorities on the ground, simply, that the duties performed by them are analogous. The question under the Constitution is therefore the same since the amendment, as before.

The Charter of 1857, oh. 7, §§ 5 and 6, required the summoning of twenty-four persons in these cases, of whom twelve should be sworn as jurors. — § 9. But the Legislature of 1865 attempted to amend these three sections by reducing the number to be summoned to twelve, and the number to be SAVorn as jurors to six. The Common Council have treated these amendments as void. It is suggested for the plaintiff in error that they may all be sustained, on the ground that parties may waive their constitutional right to a jury of tAyelve, and whenever they do so, the verdict of six Avill be valid; but the provision is one for the taking of private property in invitum, and if it has no Aridity for that purpose, it cannot be important to consider whether parties might not laAvfully consent that their property be taken in. the mode which it undertook to establish. We think the Common Council correct in treating the provision for a jury of six as unconstitutional.

But it is further argued that sections five and six, as amended, may stand, even if the provision for a jury of six is unconstitutional; since those sections provide for summoning twelve persons, and would be consistent with other provisions by which the whole number should be required to serve on the jury. Whether the amended sections five and six, can stand by themselves, if the ninth fails, must depend upon whether by the amendatory law it is apparent that the Legislature intended them as inseparable parts of the same system, mutually dependent upon each other. Of this we think there is not the least doubt. The former provisions required the summoning of twice the number to be sworn, and the only change here made is in reducing the number of each one half. A single section of the Act of 1865 attempts to amend all three of these; and we know of no principle which would warrant us in selecting out portions of the section to stand unaffected by the constitutional infirmity of the remainder, Avhen all parts relate to the same subject matter, and provide the successive steps to be taken in perfecting a single proceeding. — See Quinlon v. Rogers, 12 Mich. 168; Groesbeck v. Seeley, 13 Id. 329.

It only remains to consider whether the amendatory section being found invalid, the original provisions remain in force.

The Act of 1865 contained many other provisions, the validity of which is not disputed, so far as we are informed; and the last section repeals all acts and parts of acts inconsistent Avith its provisions. The plaintiff in error contends that, even if the sections which relate to a jury are invalid, the last section must still have the effect to repeal the original sections.

If the repealing clause had in express terms repealed certain acts and parts of acts byname, and the act had then gone further, and attempted to substitute unconstitutional provisions, the argument which has been made would be more plausible than it seems to us now. But the repealing clause here in question is distributive in its application to each section of the act, and neither in words, nor in apparent design undertakes to repeal any acts or parts of acts, except those which would come in conflict with the provisions it attempts to substitute. The repeal was simply to displace all conflicting provisions, so that these could have full effect. But nothing can come in conflict with a nullity, and nothing is therefore repealed by this act on the ground solely of its being inconsistent with a section of this law which is entirely unconstitutional and void.—Sullivan v. Adams, 3 Gray, 476; Shepardson v. Milwaukee and Beloit R. R. Co., 6 Wis. 605 ; State v. Judge of County Court, 11 Id. 50 ; Tims v. State, 26 Ala. 165.

The case of Ely v. Thompson, 3 A. K. Marsh, 70, is too blindly reported to enable us to determine whether it conflicts with the cases cited, and we have not the statute there in question before us, so that we may see in what terms the repeal was made; but if the decision is what is claimed for it, it stands by itself, and we are unable to yield it our assent. But as reported it does not necessarily go to that extent; and we quite agree with the learned Judge that it is competent for the Legislature in the same act to repeal any former one within its purview, although every other provision in the repealing act was unconstitutional. The question is one of legislative 'intent, and it is only requisite that words should be used which show an intent to repeal, irrespective of the unconstitutional portions. In this case it is not claimed that the repeal is accomplished without making use' of the void provisions for the purpose.

We are therefore satisfied that the provisions for juries as they stood before the Act of 1865, remain unaffected by that act, and the proceedings must be affirmed.

The other Justices concurred.