80 Mich. 328 | Mich. | 1890
This is a certiorari to the circuit court for the county of Shiawassee, to determine the validity of certain proceedings taken before a justice of the peace, for the purpose of establishing and opening a street, and condemning the lands of defendant and others for the use thereof.
The common council passed a resolution declaring that they deemed the establishing and opening of the street a necessary public improvement, describing the proposed street by metes and bounds, and fixing the time when the council would apply to Newton Baldwin, one of the justices of the peace,—
*330 “For the drawing of a jury to ascertain the necessity for using the property so as aforesaid intended to be taken for such improvement, and to ascertain the just damages and compensation to be paid to the owners.”
The resolution further provided for publication of the-resolution.
Application was made to said justice September 26, 1889, • the day fixed by the resolution. Nine persons owned the different parcels of land proposed to be taken; Richfield owning lots F. and G. The marshal of the city made service upon the different owners. Richfield was a nonresident, and could not be found. The marshal returned that fact, and that he made service “by posting notice on premises.” The marshal was directed and sworn by the justice to summon 24 disinterested persons, residing in the city of Owosso, and qualified to serve as jurors, wherefrom to form a jury. A jury was selected, and were sworn—
“ To faithfully, impartially, and to the best of their ability, discharge the duty imposed upon them in ascertaining the necessity for the taking of private property for public use in the intended improvement,' deemed necessary by the common council of the city of Owosso, in the resolution adopted August 19, 1889.”
The jury made their report laying out the street and awarding damages, which report was confirmed by the justice. Richfield thereupon appealed to the circuit court, in accordance with the provisions of the charter, and that court affirmed the proceedings.
The proceedings were absolutely void for various reasons.
“ When private property is taken for the use or benefit of the public, the necessity for using such property, and the just compensation to loe made therefor, * * * shall be ascertained by a jury of twelve freeholders residing in the vicinity of such property, or by not less than*331 three commissioners, appointed by a court of record, as shall be prescribed by law.”
The charter of the city of Owosso (section 109) provides that the jury shall be composed of inhabitants of the city qualified to serve as jurors in courts of record in this State. Jurors are not required to be freeholders.
The judgment of the court below must be reversed, and the proceedings quashed.
See How. Stat. § 7555.
The charter provided for posting the notice in some conspicuous place upon the property intended to be taken.