*1 225 v. Gоvernor. 1969] ok Pleasant RIDGE v. GOVERNOR. CITY OF PLEASANT COMMISSION. Di STATE HIGHWAY MATTEO OF VILLAGE v. DEPARTMENT CITY OF LATHRUP HIGHWAYS. STATE Court. n —Interstate Highways — — Law Statutes 1. Constitutional Proceedings. Municipalities — State Condemnation act, provides that public Constitutionality of the State board of route highway arbitration approval location highway depart- the State entitles an interstate necessary for acquire property to condemn or otherwise ment highway, eannot be con- proposed operation of the successful undertakes until the the Court sidered acquire property by proceedings (PA 1967 condemnation 12, Sess], No § [Ex [I] [3, [8] [9, [5] [6] [10] [II] [2, [18] [16] [19-21] [12-15,17,18] [19, 26 39 Am Jur 50 1 Am Jur 4] 35] 7, 50 Am50 Am37 16 Am 22, 23, 25, Am Am 16 Am Jur 26 Am Jur 35, Am 26 Am Jur 26 50 Am 1 Am Jur Am Jur 36, Jur Jur, Am Jur Jur, Jur Jur, Municipal Corporations Jur, Am 41, 2d, 2d, 2d, Highways, Jur, Statutes References 2d, Highways, 2d, 42] Administrative Jur Statutes §§ Statutes § 2d, Eminent 2d, 2d, 2d, 2d, Statutes § Am Jur Constitutional 26 Am Jur 50 2d, Highways, Eminent Eminent Constitutional Eminent Administrative Am §§ Domain 36-38. 39. 2d, Jur, for Points Streets and 170, 474. Domain Domain Domain Streets and 2d, Eminent Domain 11. Law 155. Statutes §§ 195. Law 112. Eminent Domain §§ Streets and Law' § Law 168, 169. §§ §§ § § Bridges 111. §§ §§ in Headnotes 45, 169. §§ Bridges 234-239. 77, 102-110. 36-38. 113. Bridges § §§ 116. § § 45. 206. 72. 204. Mich Highway Routes —Federal Aid. Statutes —Interstate providing disputes A for arbitration of in- volving highways the determination of routes for interstate municipalities through authorizing acquisition property *2 held, keyed by express significant therefor definition and refer- provides ences to the Federal act which aid to State con- structing highways purposes interstate so that of the Federal act be carried in could out this State and so that financing provided by the Federal act would be available to seq.; (23 Sess], et USC 101 PA 1967 No § [Ex Severability—Interstate Highway 3. Same — Arbitra- Location Acquisition. tion Board — statute, providing in- disputes Section of for arbitration volving highways through municipalities, routes for interstate highway approval which deemed location arbitration a,n designating board to be consent to the route as interstate highway empowering department highways of State proceed aсquire neeessary property condemnation or held, (CL 1948, 8.5; Sess], otherwise severable PA 1967 [Ex § 12, §7). No Validity 4. Same — oe Severable Section.
Validity highway location severable section of interstate highways empowering arbitration highway to condemn land for an interstate location arbitra- proceeding approved board tion route not determined yet involving acquisition 1948, 8.5; (CL not PA 1967 land § Sess], 12, §7). [Ex [28] [29] [30] [25] [24] [27] [31] [40] [35] [32] [38i 39] [33, 34, [43] [41, 42 1 Am Jur Domain 493. 26 Am Jur Jur 26 Am Jur Am27 1 Am 26 50 Am 39 Am 27 1 Am 26 20 Am Jur 36] Am Jur Am Am Jur 50 Am Jur Jur Jur Jur, Jur § References Am 2d, 2d, Jur, 2d, 2d, 2d, Highways, 2d, 2d, 2d, 2d, Statutes 2d, Administrative Law 2d, Administrative Jur Eminent Domain Eminent Domain Eminent Eminent Domain Eminent Domain Courts § Statutes Eminent Domain Administrative 2d, §§ Eminent for Points Domain 204. §§ Streets 37. 36-39. Law Domain §§ § Law § §§ § § 493. 473. §§ 169. §§ 7, 8, 113, 111-113. 113, 116, 111, Bridges §§ Headnotes §§ 15, 27 17,112, 116. Am 17. 116. §§ 147. Jur 200, 113. 2d, 201. Eminent Nidge of Pleasant v. Governor. Act- Law —Condemnation—Federal Same —Constitutional Validity Michigan Act. — Presumed acquisition by for providing the United statute The Federal property in private furtherance States system highway presumed to be interstate purpose of the provid- Michigan constitutionally valid, statute otherwise the constructing acquisition property to be used ing ancillary subsidiary highways which is interstate judicial might test for viola- not survive statute seq.-, et PA 1967 USC tion of the Constitution [Ex § 12, 7). Sess], No Highways—Interstate Route Deter- Law — Constitutional Deprivation of Local Control. mination — arbitration board location Approval the interstate binding whieh is final and route deprive municipali- municipalities such does on affected provisions of or violate the reasonable control ties vacating legislature from or prohibit the whieh Constitution street, alley, any publie utility any road, or from altering streets, jurisdiction roads, alleys, using under the such village, approval county, township, city, without 31; (Const PA 1963, art governing unit local §§ *3 12). Sess], No [Ex by Standards—-Incorporation Reference —Constitu- 7. Statutes — tionality. itself, aet, standing by no whieh contains standards within An rule, argument that the aet will withstand constitutional by of lack standards where because is unconstitutional scope brings provi- its adopts within the aet reference the operative aet whieh makes the a Federal statute sions of specific (PA standards statute sets forth the Federal 12). Sess], No [Ex by Incorporation Reference. Same — 8. statutes, whieh refer to other statutes and Reference statutes subject legislation by applicable the of the make them to repeal of earlier incorporation, are unaffected part referred to is as much a statute, since the statute length in though incorporated at the later later statute as statute. Administrative Law and Procedure —Statutes—Standards—
9. Legislation. Reference to Other appointed whieh an administrative tribunal is Standards creating up in statute to need not be directed act set 382 Mich guide performed
if the acts to the standards can be legislation incorporated by in found other reference. 10. Constitutional Review. Law —Statutes—Judicial providing not unconstitutional for the
It was act for highways of routes for acquisition arbitration property provide judicial to fail therefor review of determinations made location arbitration board, judicial prevent did not where undertake to review, judicial having provided in provision review been (Const 1963, 4, 28; of the Constitution art PA 1967 §§ Sess], 12). [Ex Highways 11. Eminent Domain —Statutes—Interstate —Federal op Power. Powers —Limitation acquire, upon, statute allows the Federal United States to enter possession pur- and take lands or in interests lands donation, condemnation, chase, or otherwise accordance with requests laws when a State the United States to acquire required by lands or interеsts lands the State for right-of-way purpose other connection with the con- struction, reconstruction, improvement of the interstate highway system, provided it is determined that the State acquire necessary is unable to lands or interests in lands promptness, agreed pay with sufficient and the State has acquisition (23 107). of the costs USC § 10% Supreme 12. Same —United States — Power. government
The United States is invested with the full and complete power carry purposes; thus, execute and out its necessary government if it the United States have higher eminent domain than that of the State in order to ' carry objectives purposes out Constitution, supreme power then the United States has of eminent Const, (US ]; domain art USC [2 — — Supremacy — Constitutional Same Law United States Clause. *4 operation supremacy of the clause of the Constitution of States, recognized the United so well in the area of commerce, applies equally well specific power provided by eminent domain as a valid con- enactment of gress (US Const, [2]; art 6 107). 23 USC § ok Pleasant Supremacy Appropriate Law — Clause — 14. Same —Constitutional op Recognition Rowers. making appropriate for Considerations it the Constitution States to deelare the Constitution and laws United supreme States to be the law of the land make the United power recognize appropriate of eminent domain as to supreme by congress equally within its con- when exercised (US 107). power Const, 6[2]; 23 art USC stitutional § Su- Law —Full Power —Constitutional 15. Sami —Federal preme to Other Governments. Power —Subordination Considering right of eminent domain to be less the Federal power supreme the Constitution a full would subvert than by enabling powers the constitutional of the United States congress of a be subordinated to the will State to Const, [2]; (US 23 USC city private citizen art or even §107). Legislative Function. Selection — Same —Site
16. power of eminent domain for which the Selection of a site 107). (23 legislative function USC will be exercised is § op State. Power —Power Same —Federal cannot, absent complete and power domain is of eminent Federal aet, enlarged statutory Federal limitation specific municipality, nor be conditioned a State or diminished local, rights by any State, municipal, private USC 107)'. § op op Secretary Com- Power —Discretion 18. Same —Federal merce —Limitations. interests condemn lands or or not to to condemn Decision system the sole discre- is within land for interstate commerce, provided secretary of United States tion of the by the secre- requested condemnation involved has the State or unable to aet with acquire land tary, is unable agreed pay of the has promptness, and sufficient 10% (23 USC the land acquiring eost — Regulations — Highways — Federal Govern- Statutes Department. Highway Highways — — State Interstate ment department, if allowing regulation law, final decisions make by State authorized agreements for relating to contracts in all matters necessary on behalf action other and to take projects regulations, and the law and comply with Federal State to lands allowing condemnation aet of the Federal tenor *5 Mich gives highway highways, the State interstate be used for carrying government’s Federal out the department a role highways by permitting department plan the for interstate secretary certify of commerce the State’s United States the 107, neeessary (23 302; inability acquire lands USC the §§ 1964, 286, §7[m]). PA No Law. 20. Same —Construction—Constitutional authority highway department has to build roads The Stale provision which according Constitution states to the State construction, laying out, im- legislature may provide for the 7, highways (Const art provement, and maintenance §16). Depart- Highways Highway Construction —State 21. Statutes — Acts. ment —Federal provision constitutional implementing the State State statute highway building roads, of State com- abolished the office for advisory powers, and transferred their and his board missioner anything neeessary proper to including power the to do comply provisions present and future Federal with the depart- acts, highway department so that the aid to the State Federally designated role and function in its ment could (23 107; USC Const compliance Federal statute § (cid:127) 286). 16; PA art § —(cid:127) Highways — — Interstate Aid Eminent Domain Federal Highways. highway construction relates providing aid for The Federal act secondary system, primary system, and separate areas, to 3 however, provision of system; eminent domain system with the second- to the interstate the act is restricted control; exclusively ary primary system under State left congress sought completion of the interstate thus, to insure by inability system being of the States to thwarted without 107). neeessary rights-of-way (23 USC obtain — — — (cid:127)— Request Domain Aid Eminent Federal 23. Same Highways. — Interstate oe Powers Limitation requires highway providing construction aid for Federal statute power of request of the Federal the exercise that a State indicating implementation of domain, thus eminent accomplished highway program be the States the interstate request however, required is not possible; to the extent invoked, upon power but as a limitation to be construed power to aid merely Federal is invoked the means program the interstаte USC § ok Pleasant Highways Highway 24. Same —Interstate —Federal Aid —State Department. department highway had the constitutional and has statutory authority provisions invoke since effective providing construction act aid department organization provi- date of the State neeessary anything do sion that eould *6 fully provisions present of or proper comply to any acts, subsequent without the aid of future Federal aid 107; 1964, (Const 16; 23 PA statute art TJSC § § 12). Sess], No 7[m]; PA No [Ex Highways — (cid:127) —(cid:127) — Arbitration Interstate Constitu- Same Department. Highway —Law State tional provisions disputes involving for of statute arbitration State highways through for interstate of routes determination thus, approval municipalities constitutional; of route are binding highway location arbitration board location department upon highway and is additional author- the State provisions ity invoking domain of the Federal for the eminent (23 highway for construction providing aid to States U.SC Sess], 12, §§1-6). No §107; PA 1967 [Ex Highway to Commission —Power 26. Same —Interstate—State Legislative Certify Intent. Domain — Route —-Eminent authority certify to highway to commission has The secretary determined route of commerce the States United certify inability highway State’s for an interstate to promptness public lands or to act with sufficient to condemn power acquire request implementation of Federal to and to system provision of Federal for the interstate under the lands 286). §107; PA No USC statute Corporations Injunc- Municipal — 27. Costs —Public Question — Highways. tion —Interstate appeal by eity from a denial of are on an a No eosts allowed sought prevent State from injunetive was relief whieh cities, through complainant constructing highway an interstate being public question involved. Dissenting Opinion
Adams, J. Highways Highway Location Arbi- — 28. Statutes —Interstate Dеlegation of Power. Law — tration Board —Constitutional approval providing the State statute for high- an interstate board a route arbitration location for 382 Miou 225. way provide any guidelines adjudica- standards or fails for tory board; thus, action arbitration the act is invalid delegation legislative power unconstitutional cannot adopts be saved as a provisions statute that reference implement operation (23T7SC law to its own §101 seq.; (PA Bess'], 12). et No [Ex — Highways (cid:127)— — 29. Same Interstate of Routes Determination Arbitration. purpose providing the State statute arbitration for disputes involving high- determination routes interstate for ways through municipalities Icey has as its a means function determining highways routes within this State for proposed, by where the route lies wholly partly city village within the boundaries proposed objected municipal route has been authorities, property owners, (PA Ress], others 1967 [Ex 12). No Sovereignty—Constitutional High- 30. Eminent Domain — Law — way Routes. sovereignty, right Eminent domain is inherent in State but the public highways subject the State to establish routes restriction or limitations in the State Constitu- found (PA tion Sess], [Ex *7 Highways —Statutes.—Interstate Routes —Arbitration. provides disputes State to related route location by highways arbitration, are interstate to be resolved but of arbitration used in this act a does mean determination by parties person persons agreed by upon par- between a or the ties, governor may select arbitrators an mu- for if affected nicipality days within 30 to 3 arbitrators a select list fails from by governor by submitted and him furnished (PA Ress], American Arbitration Association No [Ex Interstate—Highway 32. Same — Location Arbitration Board— Approval of Location. highway determining Interstate location arbitration board in a highway an route interstate must convene at the time and for place by governor, maps set consider and in- submitted formation, representatives department hear of of highways municipalities parties other affected interest, in the executive and malee determina- office function by by majority vote, tions authorised statute and within 60 Ridce Pleasant ok high- convening approve 1 location the interstate days for of binding upon department and way mu- which is affected 13). (PA Sess], nicipalities No 1967 [Ex Interstate—Highway Arbitration Location Board- 33. Same — Approval —Consent—Condemnation. Route by highway Approval location arbitration board .a route of highway designat- is considered consent an interstate for ing highway, notwithstanding an interstate a the mite as any law, contrary provision and the highways may proceed acquire property, forthwith necessary otherwise, provide deemed condemnation completion operation high- the interstate successful for way (PA appurtenant Sess], 13). No [Ex facilities Interstate—Highway Location Arbitration Board— 34. Same — Character. Route Quasi-Judicial Determination — highway board, location arbitration whether constituted agreement appointment, executive this State’s effectuates regarding policy establishment and location route through city village highway an interstate a where a dis- desirability pute proposed location, a exists as to func- (PA tioning quasi-judicial Sess], manner No [Ex 13). Highways — — — Interstate Route 35. Statutes Determination op — —Law Arbitration Constitutional Enumeration Stand- ards. disputes involving providing The State statute arbitration for highways through determination routes mu- for nicipalities legally required contain the enumeration does not apрlied standards within our constitutional rule which can be of by arriving highway location arbitration board in at a (PA 13). Sess], determination No [Ex Highways Highway — Location Arbitration Board —Ad Hoc Determination. Each new location created to settle arbitration board dispute over the location an interstate route is constituted without sem- ad determination hoe continuity (PA Sess], blance 1967 [Ex by Reperence. Incorporation op 37. Statutes — Another Statute *8 Adoption by part provisions another all or the reference of of of legislative applicable en- statute to malee them to a current permissible. actment 382 Mich op Incorporation Statute Reference— Another Same — Adequacy. creating highway Incorporation in a statute interstate an interstate board a location arbitration of definition of system, “highway highway on route the interstate as a pursuant designated the Title United and to of defined wholly Code, prior this was date act” to States effective of guidelines inadequate incorporate any standards or for statute, appointed guidance under the State the arbiters of authority approve 1 arbiters had blanche where the carte proposed commission or the State the locations seq.; municipalities (23 101 et PA 1967 USC § affected 12). Sess], No [Ex Statutes —Effective Date. 39. Same —Reference a Federal act in a Slate act to date usable reference Cutoff may act became not be later than date effective 12). seq.; (2$ Sess], PA No et USC 101 [Ex Statutes —Limitations. 40. Same —Reference act is a act to the title Federal in a State Reference specific mentioned in Federal act limited to reference (23 seq.; Sess], 101 et PA the State act USC § [Ex 12). op High- Highways Objective Interstate 41. Same —Interstate — ways Highway Arbitration Location Board —Guidelines. — act, system,” Federal means national “Interstate as used in highways system and as described interstate defense act, na- in the Federal act and the statement the Federal completion objective, prompt policy tional existing high- highways, system interstate and defense ways be used to the extent route should on the interstate being given equal to local needs consideration feasible guidelines commerce, adequate no and interstate furnishes determining board in location arbitration the State 101[a], I01[b], 103[d]; PA 1967 interstate routes USC §§ Sess], No [Ex and Guidelines —Con- 12. Same —Reference Statutes —Standards Delegation Legislative Power. Law —Unlawful — stitutional pertain guidelines act which contained Standards highways design, specifications plans, construction for guidelines provide selection standards and do for highway, where the State route for disputes involving determination providing arbitration of *9 Eidge City v. Governor. ok Pleasant guidelines highways eontains no routes for only Federal aet which eontains no to one own hut its refers determining applied a route loca- guidelines could highway, the State act unconstitu- an interstate tion for legislative (23 delegation power VSC as an tional unlawful 12). Sess\, No 10S[6f\; FA 1967 $$I0I[a], [Ex and Guidelines. 43. Courts —Precedent—Standards involving foreign on a matter con- court State Decision of applicable guidelines and Federal State sideration of Court, acts where the and Federal State a case this before guidelines comparable no standards involved contain seq.; Sess], et No FA 1967 VSC 101 [Ex 11-23, 26. Seo headnotes (Arthur E.),
Appeal J., Oakland, Moore from prior Appeals decision. Submitted from March Court (Calendar Docket Nos. 19-21, Nos. 1969. May 52,352.) 1969. issued Order 52,047, 52,046, Applications August Opinions 5 and filed City Lathrup by plaintiffs rehearing, filed for September Village 3, 1969. Matteo, Di denied City Eidge, Matteo, Di Alfred Pleasant enjoin Lathrup Village City seek to and the Highway other Commission, and Governor, State persons representing offices officers highway through constructing an interstate from Lathrup Eidge municipalities Vil- of Pleasant prior appeal Complaints lage. dismissed. Plaintiffs Appeals. Affirmed. Court to decision City Lathrup Hayes, plaintiff for F. Everett Village. Foley, plaintiff Di Matteo. for Alfred
Patrick J. (John Attorney City E. S. Scott Slavens, S. John Cudlip, Wright, Dickinson, ds of coun- McKean Eidge. plaintiff of Pleasant sel), for 382 Mich Kelley, Frank J. Attorney Robert General, A. Derengoski, General, Solicitor Louis J. Caruso and Roche, John M. Attorneys Assistant General, defendants. and T. M. JJ. un- Alleging
Black Kavanagh, of PA (Ex constitutionality Sess), *10 (MCLA 1969 Supp 252.151-252.158, Cum Stat §§ Ann 1969 Cum Supp §§ 9.1095 —9.1095[58]), [51] plaintiffs sought enjoin to through construction municipalities Pleasant and Vil- Lathrup lage planned interstate 1-696. The cir- highway cuit court all 3 dismissed complaints prejudice. Previous in delays out the carrying declaration of policy in the appearing Federal-aid highways of 1958 USC 101 et con- seq.) having been sidered, we granted bypass of the Court Appeals February 6, 1969, pursuant to GCR 852. All 3 causes were consolidated and submitted March 4, 1969. Our judgment of affirmance, reciting that “An opinion opinions as soon as same have will.follow been considered and was signed”, May entered
The generally projected purpose of interstate
highway 1-696 has been and now is that of joining-
present
interstate
1-94 and
highways
1-75, from east
to west, across parts of Macomb and Oakland
counties. The route through the mentioned munic-
ipalities
been
having-
approved under Act
by
highway location arbitration
board,
the sole issue
brought up
review is whether that approval and
the statutory proceedings
up to
leading
are
same
valid as against plaintiffs’ constitutional attack. A
second question,
raised
by
Court
oral
during
submission (see Dation v. Ford Motor Co. [1946],
action taken be highways 7 of under section Act the reason being department yet, that the has not own its right, acquire property claimed undertaken to municipalities by either of the two condemnation “necessary provide comple- deemed for the to operation high- tion and successful the interstate way appurtenant facilities.” of which Section presently, more reads as follows: Approval by “Sec. 7. the board is deemed be designating consent to the route as notwithstanding provision and, any acquire contrary department may forthwith law, proceed property, condemnation necessary otherwise, deemed provide opera: completion for the and successful appurtenant tion of the interstate *11 facilities.” Validity
1. The Constitutional ok (Ex PA 1967 No 12. Sess), provide Act 12 is entitled “An to for act arbitra- disputes involving tion the determination of municipali- highways through for routes interstate acquisition property and ties to authorize the By significant express therefor.” and references keyed definition the act is to and an made effective adjuvant highway of the Federal-aid act of 1958 (Title seq.), particular § 23 et USC 101 section (a) subd 23.1 128, Title 1 When proceedings'were Aet 12 was 1-696 enacted these in-
stituted, (a) 128 section subd read as follows: hearings 128. Public Ҥ 382 Mich
238 op the Court. (d) subd of Act Section defines “inter- highway” meaning highway “a route on the state system designated pur- as defined in interstate prior code, suant to title of the United States to specific the effective date of this act.” Other tions, mistakable defini- appearing in section an un- 1, demonstrate
legislative intent resolve, admin- newly-created high- of a istrative action way arising board, all differences location respect high- to the “route location” of an interstate way sought highway it is to extend such a when through municipality.” The or an “affected thrust implementing by of the act is manifest. It is that of purposes the reference to the cited Federal statute financing only of and the latter. afforded provide through that, the after Sections pro- highway has reviewed the State commission plans for a “(a) Any highway department which submits State going of, highway project involving bypassing or the Federal-aid through, any porated, city, incorporated unincor- town, village, or or either certify secretary public hear- to the that it has had shall hearings, and has ings, opportunity for sueh or has afforded the Any high- State of sueh a location. considered the economic effects system project way plans department which submits for an interstate certify secretary public hearings has at a to the that had shall location, opportunity for sueh hear- or has afforded convenient through enabling persons in ings, purpose of rural areas or for the property pass express contiguous will to whose highway.” they may proposed objections lоcation of sueh have to 90-495, (a) public law 128 subd was amended Section reads, present: August effective It at Stat “(a) Any highway department plans which submits for of, highway project involving bypassing going Federal-aid or through, any city, town, village, incorporated unin- either or certify secretary corporated, publie shall to the that it has had hear- opportunity hearings, ings, for sueh or has afforded the and has location, the economic social effects of such a its considered environment, consistency goals impact and its with the on objectives planning promulgated by urban been such as has community. Any highway department plans which submits system project certify secretary an interstate shall for location, public hearings it has had at a convenient has afforded hearings, opportunity purpose enabling for sueh through contiguous property persons in rural areas to whose pass express any objections they may will have to the *12 highway.” proposed location of such Nidge ok Pleasant op the Court. posed interstate routes and has deemed necessary disputes concerning “to resolve routes through municipalities,” 1 more the commission proceedings designed provide shall institute notice representatives hearing to and the department, municipalities affected persons parties “such other all interest,” are as purpose arriving for the a final at administrative provision “of determination the route” with that such “ap- when determination made shall constitute proval” depart- binding upon is “final junc- municipalities.” ment and the affected At this compare purpose through ture of sections 2 congressional purpose quoted with the 23 U8C § (a). setting, 128, subd It is in this оf what is popularly known a “reference that we statute,” as important undertake questions decide constitutional respective plaintiffs which the raised have in the circuit court. See of reference discussion post p seq. at 249 statutes, et play
Section 7 of the far act, not thus called into project litiga- far so as concerns this 1-696 provides quotation per tion us, before ante ac- quisition property requisite com- deemed pletion highway operation proposed of validity
and the facilities thereof. The regard that section, which we within severable (Stat § 2.216), Ann 1948, 8.5 CL 1969Nev is not at present proceedings except before the Court. No leading approval up those to section 6 have thus far been For instituted. elaboration, see the second opinion. division of this purposes
For the of review of the constitutional questions posed argued accept below and here, we appellant city the statement thereof which the presented. Nidge Pleasant fairly representative has That statement questions
of all considered in *13 Mich 225. op Court. appellant parties has and original briefs pursuant attorney general accepted been 814.1. 1963, GCR (Ex Sess), [MCLA 12No PA 1967 “1. Does Supp 1969 Cum §§ Ann 252.151-252.158, Stat 7, art 9.1095(51)-9.1095(58)] 1963,
.§§ violate Const §§ its effect to: 31, in that 29, n appellant units “(a) Deprive local and other high- of their government control of the reasonable public places. ways, alleys and streets, alleys “(b) streets, and roads, alter or Vacate appellant jurisdiction places under government. local units other § provisions 252.52 “(c) 1961, of CLS Violate 9.1094[2]) § 194c3, (Stat and CL Ann 1958 Rev [i])? § (Stat 8.171, subd § 1958 Rev Ann 213.71 provides (Ex Sess), No which Is PA 1967 “2. disputes binding compulsory over arbitration for highways, unconstitutional location of interstate .thе as: power, improper delegation illegal “(a) An power delegation “(b) improper without An guidelines adequate setting for the up standards * * * granted power ? exercise of (Ex Sess), 12,No unconstitutional “3. Is PA 1967 right appeal, provide in that it fails agency whose decision is it an administrative § appealable pursuant 28? art to Const (cid:127) (Ex Sess), 12,No unconstitutional Is “4. PA 1967 jurisdiction away control of in. that it takes trunk- over all State commission .the responsibility of deter its as well as abdicates lines, necessity prior mining condemnation, violation 5, § 1963,art 28? of Const (cid:127) (cid:127) (Ex Sess), unconstitutional 12,No PA 1967 “5. Is equal pro- appellant citizens that denies its jection appel- property of and takes the the laws process of due without that of its citizens lant and Michigan art 1, 17, Const law in violation ok Pleasant v. Opinion op the Court. and Amendment 14 of the Constitution of the United States?” In view of our' determination that Act is hut
ancillary to the Federal-aid act of 1958,2it (cid:127) — n — appears definitely and we therefore find only posed questions appear of moment in stated questions 1, 2, and refine them to these: We deprive appellant municipal- Act 12 Does highways, ities of the reasonable control of their *14 alleys, public places in of streets, violation §7, 29? article road, Does Act 12 or alter street, vacate public
alley, place jurisdiction or under the 'appellant municipalities in of section 31 of violation article? same 12 it
3. Is Act unconstitutional in that undertakes delegate legislative power administrative req- having commission without included therein power granted of uisite standards for the exercise thereby ? pro-
4. Is 12 in Act unconstitutional that fails right judicial a of of action taken there- review vide under ? location arbitration board questions 1 2 is fore- Our answer to restated appears proceedings told that which above. designed public ways public property to condemn or municipalities in either of the have com- two been department highways. of menced may department Whether the with constitutional ways property or sanction condemn such serious question, 29 31 considered sections of article 7 spends implementation of Title 23. Aet its whole force in the way highway excepting eoming It deals with no the definition of those within constructed, highways constituting, part when System.” 101, (a). of the “Interstate '23. subd See IJSC § highway, Michigan, route of no of to or intrastate was intended thereby. could be affeeted or determined
'242 Mich Opinion op the Court. array quoted
in section 7 of 12.3 If Act it were not a fact that the cited statute, of which subsidiary, provides Act 12 is but what we must presume authority acquisition, is constitutional by property private the United States, as well as purposes furtherance inter- system (see 108), §§ state USC section 7 might judicial fail indeed to survive a test for viola- particular. tion section 29 and section 31 question That need not be decided now, however. presently validity pro- We are concerned with the ceedings through far thus taken under sections 1 proceedings Act and we find that those do not violate sections 29 and 31. The reasonable control appellant municipalities by reserved to the section pur- 29 has not been taken from them under or in legislature suance of Act 12, and the has not vacated any public way place or altered therein, viola- tion of section 31. When and if the highways should undertake to condemn public ways places, or both, within either munic- ipality, rightful will be the occasion for an article 7 doings. test оf its All that has been done far, thus upon authority entry Act of an *15 “approval” by highway board an interstate binding upon route or “location” which is “final and department municipalities.” and the affected approval That as entered doubtless will be forwarded secretary part to the of commerce as a of the de- partment’s quoted § certificate which 23 128, USC (a) requires. subd
paragraph: requested by Michigan under Title erty lying “The Our Court’s judgment within the 23, opinion US Code, of State boundaries of the and instituted affirmance, will is refrain empowered highways, distinguished entered specifically plaintiff to condemn May 5, secretary from municipalities.” includes public prop- of commerce from action determining this City v. ok Pleasant op the Court. questions disposes 1 and This restated We question; outstanding constitutional comethen to the guide- is Act devoid as it of standards 12, whether invalidly dele- thereof, four corners within the lines power gates legislative location hoard. standing by admittedly itself, contains no 12,
Act
rule.
Osius
within our constitutional
See
standards
(1956),
St. Clair Shores
apparent. Act 12 however such a refer is which it statute,4 ence and the Federal statute to upon operational purpose which its refers and dependent great plethora specific forth a
sets to which standards section “commission” all local functionaries defined “department,” 1 thereof, “board,” municipality,” and the “affected must financing penalty conform on of no and no construc enough tion of 1-696. That is to meet and argument “no which coun overcome the standards” forcefully presented. sel have so express examples For standards geared by incorporation, which Act 12 referential 101(b) see section and “definitions declaration policy”; 103(d) systems”; section “Federal aid sec- 106(a) “plans, specifications estimates”; tion 109(a) (b) “standards”, section 315 “rules, regulations recommendations,” 23, all of Title And, in connection with United States Code. section “Regulations, see thereof, Standards, Yol. IY poses and 38 and For a generally accepted validity, general pj> textual discussion of reference 58, 195, see 50 Am Jur, statutes, Statutes their §§ pur- 36, *16 Mich the Couet. of appearing Policy,” of in the Code of and Statements pt 1) cur- Regulations ch CFR, Federal rently compiled by of commerce roads. of the bureau issued statutory adoption incorpora principle or of The Michigan. stranger no is reference tion (1898), People prominently Malsch Beginning v. 112, 115: 119 Mich then-existing dis- law 1885 refers “The of repeating orderly substance its act, instead By pertinent provisions. reference, such such part 1885; and it is an estab- of the act of a
became
affected
a case it is not
in such
lished rule that
subsequent repeal
act referred to. See
of the
Interpretation
have
Statutes,
We
Endlich,
cases of Darmstaetter v.
this rule in the
followed
Moloney
versity
Mich
Regents
(1881),
Mich
Uni-
Michigan
(1896),
Auditor General
v.
134.”
through
carrying
Public Schools
(1929),
Kennedy
“In Darmstaetter it said: “ legislation piece for a ‘The that a rule general particular city adopts words which under general separate regulation specific in a reference a adopting prospectively law is not to be taken аs general provision in the future alterations appropriated, the intent therefor unless so law * ** implied.’ express strongly “ adoption wherein the form of ‘There is another part any particular statute not to is, reference governs generally the law statute, of a but to subject. particular in such case reference at time, from time law as exists means the exigency the law to arises which the time *17 City v. ok Pleasant 245 Opinion op the Court. Statutory applied.’ 2 Lewis’ Sutherland Con- (2d ed), § struction Wayne Judge (1895), “In v. Mich Cole Circuit 106 is 692, it said: “ [2 Stat] ‘Section 8307 How does not limit the of the procedure upon appeal provisions to the n justices’ they by provided act as then It existed. ajid general furnish, law, reference to another intended to is “always a rule for future to be conduct, when found, needed, it is reference- law existing at the time when the rule is invoked.” Interpretation Kugler’s Endlich, of Statutes, 493; n Appeal(1867), 55 Pa St 123.’”, principle recently was adhered to most County Haveman v. Kent Road Commissioners (1959), 356 Mich 18: 11, “It is an established rule that when one statute
adopts by reference a definition in a former statute
part
such definition becomes a
of the later statute
subsequent
and is not affected
amendment
repeal
containing
of the earlier act
the definition.
People
Rep 381); Wayne
(1898),
County
(75
v. Malsch
merit. understood, as is reference, employers’ liability April 1908, c 22, act of 35 .149, amendments. This is 65, Stat its ;recognized sys- incorporating mode one statute bring .tem of and serves to another, statutes into fairly into the the refer- latter all that is covered (37 (1838), 12 Pet ence. Kendall v. United States US) (9 1221); L In 1181, 625 Ed re Heath 524, (1891), (12 358); Corry 144 36 L 92 Ct Ed 615, US S 382 246 Mich op the Court. (25 297, Ct (1904), 477 S 466, 196 US Baltimore
v. R. Street Co. 556); Consolidated Interstate 49 L Ed (28 26, (1907), Ct 79, S 207 US Massachusetts v. 555).” Panama R. Co. Ann Cas 111,114,12 L Ed (44 (1923), Ct S 391, 375, 264 US v. Johnson 68 L 391, Ed adoption reference statute of an earlier “The though part as later act it much makes it had been length. incorporated v. Kendall full at (9 (37 US) (1838), L 524, 625 12 Pet United States (1891), 1221); 92, In Heath US re 1181, Ed 359) (12 Interstate Con ; 36 L Ed CtS (1907), 207 Massachusetts R. solidated Street Co. 114, 12 Ann 52 L Ed *18 79, 85 S Ct US brings 555). ‘all is later act that into the It Cas (Panama by fairly R. Co. v. the reference’ covered [44 68 391, Ct 375, S [1923], US Johnson L the say, provisions 755]); all the that is 748, Ed subject from the nature which, former act Engel applicable later act.” v. are to the matter, Davenport (1926), 33, (46 271 US S Ct L Ed quotation Following lengthy Mr. Justice People, opinion Drake, v. Ma- ex rel. Cooley’s supreme haney (1865), court of 13 Mich (1942), Washington Rasmussen in State Wash 320), went on to describe 2d 397 reference statutes P2d
as follows: “ make which refer to other statutes and ‘Statutes subject legislation applicable them object are incorporate “reference statutes.” Their is called they part a the act of which are into adop- provisions other reference and statutes frequent tion. Reference are of use to avoid statutes unnecessary repe- encumbering the statute books they recognized frequently have been tition, legislation, approved in the absence method * * * in one of constitutional restrictions. When existing in law, a is made to an statute reference 247’ ok Pleasant v. Governor. Opinion of the Court. prescribing thing particular the rule or manner in a purpose shall be or done, for the of ascertain- powers ing persons with which nаmed in the refer- ring not to generally statute shall be clothed, the effect to revive continue in force the statute referred purposes originally for which it was en- merely purpose carrying acted, but for the into execution the statute in which the reference is made.’ pp § 25 RCL Statutes, 160, 907, 908.”
Implicit supplemental one briefs received since allegation submission of these cases is necessary up standards must be set the act appointed which an administrative tribunal is respond quotation directed act. We of the text of 1 Am pp 2d, Jur Administrative Law, 116 920: guide “The standard which is to the discretion of agencies administrative need in all not instances be expressly stated in the statute or ordinance. It always necessary prescribe specific govern powers rule of action to the exercise of con- particularly implied ferred, where a standard is power. conferring the statute or ordinance guide particular standard to act which in terms is by any specific may not limited standard be found
within the framework of the statute under which the performed, may subject act is to be inhere in its purpose, clearly matter and a defined field may implicitly action contain the criteria which must *19 govern may Also, the action. a standard be found pertinent legislation, in other or an executive order, governing operation or in the field of law agency. impute legislature The courts will not attempt an an enact unconstitutional law, and reasonably possible will construe the act, when to do vesting powers may lawfully as so, which be exercised”, by applicable strikingly reference to a and well- decision
reasoned is, to which that refers, the text Mich 382 248 op the Court. Department League, Social Inc., v. Senior Citizens of (228 (1951), Security 38 2d P2d 142, 160 Wash question was now in discussion In case the that way: this decided 2 significance this declaration section “The legislative guide standard
of No 1785 as a apparent, matching fact Federal in well-known view of the only States are made available funds principles general is adherence to where there at the Federal level. formulated standards as 178, into No there must be read result is that legislative Fed of these standards, such additional eral principles must which and standards matching complied to obtain with order Security Morgan Department Social funds. See v. 699), (1942), 686, P2d 156, problem Wash 2d length.” at this dealt pointing question, The fourth last restated provision any Act 12 it does absence from high- judicial made review determinations Township Imlay way is answered board, location Primary Board No. 5 v. School District (1960), and Board 478, 359 Mich Education Rapids Tax Education Grand Commis- (1939), sion Act 12 not undertake Mich 50. does prevent judicial con- review, as did statute pages in the cited case. sidered last See report suggest 62 of to bar Nor intent thereof. does application for and means of an review grant which, writ under section constitutional may 4 of this article issue. hence Court There is point, 28 of no for elaboration of section need having complementing pro- the same article made appellants say vision for the these Act 12 review provide. does not
eh stitutional Sess Laws was 178 was 1951, eh approved the case initiative 1,—Beporter. which the proposal voters November amending quotation appears. 6, 1950, Wash Sess Laws and held con See Wash *20 v. Pleasant ok Opinion of the Court. the Federal 2. Condemnation Relationship. major question raised second now turn We subsequently arguments and
by oral at the Court (See parties. by Ford Motor Dation v. briefed 161.) Company 152, 160, [1946], 314 Mich by posed legal the Court issues The crus arguments and inter- construction involve the at oral part: pretation in which reads of USC secretary any “(a) case in which the In requested acquire by or interests to lands in (including term ‘interests within the in lands adjoining from thereto the control access lands’, right-of-way required by lands) such State prosecution purposes with in connection other any project reconstruction, or construction, for the system, improvement section the interstate secretary of the authorized, name in the prior approval title to States United upon, acquire, attorney general, enter possession in lands of such lands or interests take by purchase, condemnation, otherwise donation, States the laws United in accordance with February (including 26, 1931, the act of Stat 1421), if— secretary “(1) has determined either that necessary acquire or inter- lands is unable State ests acquire unable to such lands or lands, in or is promptness; and sufficient in with interests lands agreed secretary “(2) with the has the State may specified pay, tary as the secre- such time at equal per of the costs to 10 centum an amount secretary, acquiring such lands- incurred percentage lands, or such lesser or interests pro project represents share of the State’s rata subsection, in accordance determined costs as (c) of this title. of section granted authority this shall also-- section “The apply lands lands and interests received 382 Mich Opinion op the Court. grants of land from the United owned States and *21 by corporations.” held railroads or other inquire only authority
We must as to the of government acquire, by purchase the Federal required condemnation, lands interests in lands proposed for a successful of construction inter- highway, state but also whether there are condi- precedent, predicated upon tions invocation of law, to the power. In
this short, this Court must interrelationship determine the between the Federal act, the and relevant rules, Constitution and laws of this State. starting point analysis ques
The of of our these supremacy tions is the clause of the United States pragmatics Constitution, art 6. The of the situa applicability tion here involved and the supremacy clause were well stated Justice Brad ley (CC in Stockton v. Baltimore & N. Y. R. D Co. 1887), NJ, 32 9, 19: F argument upon “The based the doctrine that highest States have the eminent domain or domin- comprised
ion in the lands within limits, their that the United States have no dominion in such supremacy given lands, cannot avail to frustrate the government the Constitution of the United scope States in all matters within of its sovereignty. This is not words, a matter but of of things. necessary it is the United States If government should have eminent domain still higher may than that State, in order that it fully carry objects purposes out the may Constitution, it then has it. Whatever be the necessities or conclusions theoretical law as to anything eminent domain or it else, must be received postulate govern- as a of the Constitution that the ment complete power the United States invested full with carry pur- to execute and out its poses.” (Emphasis added.) ok Pleasant v. op the Court. supremacy recognize the existence of the we Once pervasiveness easy to understand its it is clause specific powers granted applicability either all to. valid enactments the Federаl Constitution Congress. supremacy operation clause, recognized commerce, area of interstate so well applies equal in the area eminent force domain. (1946), 329 States Carmack US
In United 209), 91 L the United States Su- S Ct Ed recognized preme explicitly fact of con- this Court (p 240): stitutional law appropriate for that made
“The considerations to declare that the the Constitution the United Constitution and the the United States States, laws *22 supreme pursuance thereof, made in shall be the recognize appropriate law land make it power domain, exercised that the eminent when powers, by Congress ivithin its constitutional supreme.” (Emphasis added.) equally power right of To of the Federal consider any less than a full and eminent domain to be supreme power subvert the United States would powers enabling the constitutional Constitution congress city ofwill a to be subordinated to the State private in Kohl As v. or or even a citizen. stated 449), (1875), (23 L Ed States United US (p 371): exist this situation cannot powers in the the “The vested Constitution general government for their exercise demand acquisition are of lands all the States. These navy- armories, for arsenals, for and forts, needed post- yards lighthouses, customhouses, for other uses. courthouses, for offices, may acquire right property such uses for If unwillingness right by the made a be barren property-holders sell, action aof 382 Míen -225. op the Coukt. prohibiting government, a sale to the Federal grants power may be constitutional rendered nugatory, government dependent and the its practical upon existence the will State, even upon private that citizen. This cannot be.” (Emphasis added.)
Focusing upon specifically proc- more thе selective power ess the exercise of the of eminent domain, Supreme recognized the United States Court has legislative that this is a function. In United States supra, designated Carmack, the Court stated that controversy officials selected the site out suggested, closely 22 sites of 2 out balanced (p 243): alternatives. The Court concluded n legislative power “It would have been within its representa- to exclude from the consideration of its might tives this or other sites, selection which governmental with local Such interfere functions. legislative exclusion would have been ah act of policy.” (Emphasis added.) n foregoing authorities in the area relationship compels Federal-State us to conclude power of eminent domain is com- plete specific statutory and cannot, absent some limitation in the Federal itself, be conditioned by private rights. local or The Court in supra, page ..Kohl, at 374, stated: power, “If the United States have the it must complete enlarged in itself. It can neither be nor *23 prescribe a diminished State. Nor can State . the manner. which it must The be exercised. n consent a State can never be a condition precedent enjoyment.” (Emphasis added.) to its , applies language .What to States, the the under equally apply Kohl (cid:127)of the decision, must municipalities. local 2,53 v. Governor. of Pleasant op Court. the §
Turning we 23 USC statute, to the Federal hy imposed limitations are some that there note may as the be summarized Federal law. These requirements: following three request action;
(1) (2) such involved must involved must The State acquire be unable to The State promptness; sufficient to with the land unable and pay agree (3) to must involved State 10% of the cоst. secretary’s limitations, the than these three to condemn Other solely with- is or not to condemn decision in his discretion. implementation understanding of the
For an workings of Federal- and the Federal act cooperation, of Federal turn the Code we to State January (revised Regulations, as of Title high- specifies “Each 1.3 State Section conformity way department, with maintained authorised, the laws shall be USC in all for the State State, make decisions to final relating on into, to behalf and enter to, matters proj- agreements for and all contracts State, behalf of the other actions on to such ects take comply necessary may State as regulations.” Federal laws regulation, particular from this We conclude supported tenor of this conclusion highway regulations, that the State act and Federal department carrying given role in out government’s program system.6 certify role is to Part of this 302(a), specifies that: especially, 23 See T7SC§ provisions of title “Any desiring to itself of the this avail adequate have which shall shall have discharge suitably equipped organized powers, and be secretary required by this the duties title. satisfaction organization secondary Among include a road things, the shall other unit.” *24 n 382 Mica 225.
254 Opinion of the Court. pursuant secretary 23 commerce, of USC inability acquire necessary § 107, the State’s lands where situation exists. such pertinent
Turning we must law,7 State department highway whether the State determine authority operative legislative to initiate the has the required condemnation,8 Federal mechanism federally designated its role. authority puts highway The basic the State department building the road business Const part: § 16, which art reads may legislature provide laying
“The for the оut, improvement high- construction, and maintenance ways, bridges, airports and and the state culverts townships may thereof; the counties and and charge authorize counties to take and control purposes.” highway within their limits such part implementation As constitutional provision, legislature PA 1964, 286,9 enacted (the organization act), which abolished the com- office advisory missioner and his board and transferred 7(m) powers this act their and duties. Section (MCLA Supp § [Stat Ann 1969 247.807 Cum §9.216(7)]) specified of the commission’s that one necessary powers anything do duties was “to fully provisions proper comply with the is consonant with the quire rights-of-way the regulation other way building program. Ann 1969 Cum [1]-9.216[16]). (Ex Sess), MCLA Our We note that construction, pertinent analysis deals with the §§ No 12 247.801-247.816 Supp regulations. proceeds operation CFR, (MCLA of such nature §§ 9.1095(51)-9.1095(58)]). tenor of both the Federal § normal course of events It independent 1.23(a) 1969 Cum (Stat Ann 1969 Cum independent maintenance states that “The State Supp extent consideration of §§ of 23 USC 252.151-252.158 of a as are in the State’s statute project.” Supp adequate for PA shall ac- 107 and §§9.216 and the [Stat high- This Nidge ok Pleasant op the Court. Michigan present Federal aid acts.” This or future only necessary desirable but statute was *25 requirements comply 23 USC, the of Title department functioning of the State the its (see supra). federally designated role problem invoking condemna- of the Federal This procedure has not new. It been resolved tion is of circumstances in several our sister under similar States. In Parcels Land States v. Certain United (SD 1962), County, Supp F209 Ill,
Peoria Illinois department public 483, the Illinois works authority property buildings, lacking to condemn the requested already use, secre devoted to the county park tary lands of commerce to condemn 107(a). provisions 23of under the USC request, suit was filed the Pursuant that The issues before the Court were States. United specific given had been whether the assembly request general authority by the Illinois municipally condemn this the United States highway purposes, publicly land for owned and and whether the Federal used power land in to take the request upon a valid the State suit conditioned through general assembly. trial its The Illinois opinion judge Certain in his in United States v. supra, County, Illinois, Parcels Land Peoria (p 486): stated ap-: seemingly “Defendant would have the court starting point proach lim- issue from the this the authority depart- upon of the itation State law the reject that as the ment to take the land in suit. I. point. starting contend that Defendant does by. congress- exercise, not a Federal valid being powers. valid act, its constitutional a. lavy supreme power, is exercise conflicting be limited of the land cannot 382 Mich of the Court. provisions Carmack law. United States v. (1946), 91 L Ed US S Ct question then, In short power itations we deal with a of the Federal lim- domain, uninfluenced of eminent department by imposed upon the Illinois power the laws of that if the of the United 107(a) properly States is invoked under section of the act.” necessity giving priority
Stressing the necessary, national if subordina- and, interest larger tion of local na- and intrastate needs purpose, judge effect of tional the trial discussed 489) 107(a) saying (p : section of USC, “Although separate areas the act relates to three secondary namely, of Federal-aid system, construction, sys- system primary provisions tem, the of section eminent domain *26 (a) system.’ The are restricted to the ‘interstate secondary obtaining rights-of-way for the of primary systems exclusively сon- left under State is comple- Congress sought trol. tion of inability to insure that Thus by system the be not thwarted the interstate States, reason’, the ‘for to obtain necessary rights-of-way.” (p 489):
He concluded that provision (a) requiring a re- “The of section 107 upon quest by the a is a conditional limitation power The act con- Federal templates of eminent domain. implementation high- interstate that the acquisition, way program, including right-of-way pos- accomplished by shall be the tó the extent States * * * may power Although Federal be sible. the by required upon request only a the State, invoked upon request limitation construed as a be merely power thereby means invoked, the the by but power Federal is invoked in which'exercise of the program.” aid of the Pleasant v. Governor. ok op the Court. proceeded to discuss whether the then The Court validly power had of eminent domain been Federal general assembly of Illi- noted that the invoked and things department “to all do had the nois authorized carry necessary fully and make effective out provided cooperation contemplated (p 490.) highway act.” to this Federal aid Pursuant secretary request made to the was authorization, of held eminent The Court that commerce. government power had been domain properly invoked. opinion appeal,
Upon court was the trial appeals adopted court of the United States Driveway United States v. Pleasure affirmed. See & Park District (CA 1963), 314 Peoria, Illinois F2d Land in United States v. Acres See, also, 20.53 County, (D 1967), Supp F Osborne Kansas Kan, authority grant dealing 694, secretary with a similar relates to the con- interior property owned the State of demnation of Kansas already being put usе; and United States v. Cemetery) (ED (Lawncroft Land Acres of 17.0098 Supp holding 1967), F for a similar Pa, government was asked where the United States n Pennsylvania to condemn Lawncroft the State of portion cemetery the inter- for construction of system, USC 107 state route under (cid:127) (a). (m) language of is to noted section 7 It department organization of the State statutory language substantially identical with *27 court, States the Illinois in United v. construed County, Illinois, Land in Parcels Peoria Certain supra, at p anything necessary proper' “to do 490, comply fully provisions present with the aid acts.” future'Federal 382
258 Mich op the Court. July at We conclude that since least 1, 1965,10the (art 16)§ State has had the constitutional 7, (MCLA statutory [m]), authority § 247.807 in- operative provisions § voke 107, the 23 USC un- Sess), by any (Ex provision aided PAof No today upheld constitutionality We have the (Ex Sess), first of PA sections No 12. Those provide disputes six sections for arbitration of in- volving the determination of routes for interstate highways through municipalities. Pursuant to these appointed, 6 sections, an arbitration board was hear- ings ap- were had, and route location made. The proval designated binding upon as final and municipalities. and the affected upon binding board, determination the de- partment, authority op- is additional invoke the provisions § erative of 23 USC 107. Having the State de determined
partment
authority
operative
had the
to initiate the
provisions
lacking any
specific
of 23
but
107,
USC
giving
highway department any
statute
the State
authority
public
lands,
condemn
and mindful of
applicable
prohibiting
decisions of this Court
condemning
the State from
lands absent a
legislative
contrary
clear
intent to the
Battle
—see
Sturgis
Tiffany (1894),
&
R.
Creek
Co. v.
99 Mich
Chicago
471;
&Kalamazoo Terminal R.
v. Grand
Co.
Rapids
(1908),
& Indiana R. Co.
686;
153 Mich
Township
Warren
7,
School District No. Macomb
County City
(1944),
Detrоit
Kavanagh, JJ. Kavanagh, [Ex (dissenting). Because PA 1967
Adams, J. guide- provide any Sess], standards fails adjudicatory highway location for lines action my un- act is an board, arbitration it is belief that the delegation legislative 'jfower and constitutional consequently agree
invalid. I am unable majority saved that the act can be Court scope adopts its1 a within as provisions reference statute op- implement its own of Federal- law to render I would which reach eration. Since result give unnecessary fur- me to invalid, the act questions on raised the other ther consideration to appeal. this Background
The Cases. legislature session,.un- extra while in in long-standing provide a dis- a dertook to pute solution portion of interstate a over the location of route planned 696. As freeway running department, across 1-696 will be from a west- Macomb counties southern Oakland and at 1-96 in Novi to an eastern terminus ern terminus Shores, at 1-94 Roseville St. Clair distance Mich by Adams, Dissenting Opinion J. approximately portion 28 miles. A'10-mile run- ning easterly from the western terminus Lahser already road Southfield has As been constructed. portion extending of 1967, the route of the eastern *29 point Royal approximately from a 1-75, Oak near agreed upon by high- miles 1-94, to had been way department and the affected communities and way. construction' under was location remaining route for the 7.4 miles became matter dispute, culminating appeal. in this Historically, freeway the need for an east-west through southern Oakland and Macomb counties was first documented as a result of the Detroit area traffic study purpose which was initiated in 1953. The study provide Federal, was State, local agencies planning guide data as a in estab- lishing highway metropolitan service for the area. highway Interstate 696 was conceived serve that purpose integral part freeway anas of the network for- the State and the Detroit area. In addition, highway eligible such would be for inclusion in the system highways national of interstate and defense recommendation of the State de- partment approved by for such inclusion was Federal bureau of roads 1955. Location begun completed studies for 1-696 were in 1958 and for from section 1-96 to Lahser road Studies for the remainder of the route, from Lahser completed gov- road 1-94, were in 1963. Local ernmental officials were told that a decision on a alignment necessary by January cbmmon was 19’64in order to maintain the then current program system. completion schédule for of the interstate agreement forthcoming,
"When was not Commissioner John Mackie1selected the C. so-called 1 The-present highways оriginated with the highway department organization act of PA 286. That office commissioner, act abolished the of State Pleasant ok Adams, J. Dissenting Opinion announced alternative 10-Mile-E-F-ll-Mile his anuary in J decision high- department of State on, that date
From predecessor ways has endeavored secure or its necessary approval. failed, all else resort When message legislature. to the In his had to the was governor made reference extra session existing of the over route selection stalemate remaining portion of 1-696 and said: project importance of the “Because power of the veto continued misuse because of the over urge I communities, certain its construction legislature one two actions: to take this binding form of arbi- “1. a reasonable Establish of local the State dif-' for the resolution tration freeway routes; or, ferences over existing power freeway “2. over Remove the veto popula- from of 30,000 locations communities route tion or less, do the cost of. not contribute to *30 freeway construction.”2 12Act resulted. 12. Analysis
An Act of purpose of 12 of the 1967 the Act extra What is provide as “An act to session?- Its title describes it disputes involving the for arbitration of determina- through highways mu- tion of routes for interstate in required by risdiction administrative transferring the ment to the 1967, No. Oct. of the commission, consisting the commission. The executive Journal of the powers, principal commission and control 380) duties the Constitution all control over the State tlie created departments and powers House, as head over all functions vested of State of 4 a and duties 74th department members of State State highways. 1963, Legislature, Pirst organization department,- trunkline art appointed by government, highway department tbe of State 5, the State office to a State highways was vested and transferred aet of highways Extra Session By named highway depart- governor and as one State (PA aet, ju- all as 382 Mich Dissenting by Adams, J. acquisition
nicipalities prop- and to authorize the erty key therefor.” The function of the act tois provide a means for “the determination of routes” highways Michigan for interstate within where proposed by highway department route lies whol- ly village partially city within the of a boundaries proposal protest such has met with and objections municipal property authorities, from own- dispute resulting in others, over ers, location. route right In view rule of the universal that the sovereignty,3 eminent domain is inherent impression appear would first that the it. proceed public high- could to routes for establish the ways right although a free However, hand. subject exists, its exercise restrictions found in the That limitations State Constitution.4 municipalities by are there claims constitutional concerning authority restrictions the State highways, streets, locations over municipal route within amply boundaries is demonstrated this appeal majority opinion. the recitals (That any municipalities pursuant claims such Michigan’s Constitution would subordinate to government’s power the Federal domain eminent proceedings by agencies in condemnation acquire land for the establishment of the route highway, part majority an 2 of see opinion appeal.) in this proposes disputes they
*31 Act resolve when to. highways route locations of interstate relate requiring inept “arbitration.” Arbitration description provisions of what occurs whenever the under are found 662, 665; Galvin, [3] Cf. the Inc., Hendershott exercise of the Bеndershott control of the v. the Constitution. Rogers v. v. (1928), Rogers power Rogers, legislature, 243 Mich of eminent domain is a matter (1927), supra Loomis v. Hartz subject [237] Mich to such restrictions 338; (1911), Fitzsimons entirely Mich & Rldgé o® Pleasant J. Dissenting Adams, by Customarily, arbitration is are invoked. of the act by dispute parties between the determination upon by agreed person persons them. chosen willing agree municipality “to to an affected If voluntary binding of route on the issue arbitration required (section 2), the under it is location conjunction (section 3) inor either alone select, municipalities, similarly 3 mem affected with other panel of a list of members of the national bers from by governor and fur arbitrators as submitted the American Arbitration Associa nished to him the then the tion. The members so selected constitute municipality If an or mu board. affected arbitration nicipalities agree within the do on arbitrators 30-day prescribed by governor period act, the the statute, the the shall choose the Under arbitrators. n executive board “shall function arbitration by majority officeand vote make determi shall (Section 3.) “The this authorized act.” nations place board at the time and set shall convene maps governor and submitted shall consider the representatives of hear information and shall department municipalities and shall affected hear such other * [*] * Within persons as days the date are1 parties if convenes, in interest. approval approve 1 of the locations. The board shall departmént qpon binding is final and (Section'd.) municipalities.” “Approval affected designating is deemed to consent to the board be highway., . the route as ah interstate notwith and,' contrary any standing provision to "in' law, procеed acquire department may the property, by forthwith deemed’by otherwise, condemnation or for,the necessary provide (cid:127)the completion operation of and successful the interstate appurtenant (Section 7.) highway and facilities.” *32 Mica-225. by Adams,
Dissenting Opinion J. foregoing it that the extracts, From the is obvious consti- board, location arbitration whether agreement appointment, by by tuted or executive effectuating perform does the State’s the function of policy regarding and location of the establishment city highway through or a the route interstate anof desirability village dispute a exists over where by performance proposed of a The location. adjudicatory pro- action. “The arbitration board is ceeding ordinary administration, con- is not one of governing a duties of formable the standards (p 479.) proceed- purely ing character.” “A. executive requiring taking weighing of this sort upon of fact based the con- evidence, determinations making' of an evidence, and the sideration order findings, quality supported by has re- a such sembling judicial proceeding. a Hence that of proceeding quasi- frequently judicial as described Morgan (p 480.) v. United character.” (1936), Ct States US S 906 L80 Ed or in Act Standards Guidelines n standing majority opinion The “Act states: admittedly our no within contains standards itself, agree majority I constitutional rule.” with the . ,.Act of standards 12 contains no enumeration guidelines applied by . board the arbitration to be
arriving such at The need for its determination. legis particular practical in this direction has a side high legal requirement. lation well as the as provided way Act 12 board location arbitration body continuing a fixed term with is not a board for a It is constituted '(cid:127)'оf' members.’ office its n as created A new board ad hoc determination. éach dispute loca route over municipality. As conceived in an affected tion arises Bidge Pleasant ok J. Dissenting Opinion Adams, any semblance board lacks arbitration Act continuity. Act 12 No Standards Guidelines Reference. majority opinion rule agree I *33 por- adoption a permits of all or reference provisions to make another statute of the tion legislative applicable enactment. a current them to properly has received done, when method, This many years, is approval as shown of this Court over Michigan appearing quotations in cases from majority disagree majority opinion. I with the guidelines adequate holding have standards powers the extent of from which established been and the can board be ascertained the arbitration of manner for such direction 23 only performance The source determined. 12 to'“Title reference in Act in connection with States Code” the United highway.” defining refer- words “interstate only appears 1 of in section Act once, ence 12, then as follows:
pursuant on the “Sec. “(a) ‘Board’ means “(c) means “(b) ‘Department’ “(d) interstate ‘Commission’ 1. As ‘Interstate to Title 23 of the used system highway’ in this act: means * as defined and United [*] * means * * * * * * States in Code, designated prior route the effective date of this act. to * * “(e) municipality’ ‘Affected means wholly regard to 23
I the above reference Title as incorporate any guide- inadequate to standards guid- 12 contained in Title into Act for the lines performance ance of of their du- the arbiters in Act 12 ties. Nowhere is there the least statement they follow or instruction the arbiters that .shall Aug. Míen 225. I Opiniоn by Dissenting Adams, .T. 23’guidelines. contrary, Quite Title the hoard given authority “approve is locations” as carte Manche 1 of the
proposed by commission municipalities; the affected ’"No or Guidelines in Standard’s Title 23. agree , I do that Act While contains a usable Code, reference to Title 23 of the sumption if US such an as- January then made, became the provisions cut-off date reference usable of Title 23 because Act 12 went effect into on that Furthermore, must be borne mind that (cid:127)date. cannot be made other title Reference US/Code since none is contained in Act Title contains .23 no of does definition, such, “interstate highway.” following appear However, the 101(a),: section system’ defense “The term ‘interstate means the national system highways described *34 (d)
in subsection 103 of section this title.” 101(b) Section contains these words: hereby prompt early “It is declared that the and completion system of the national of interstate and highways, defense primary so named because its importance to the national defense and hereafter re- system’, ferred to as the ‘interstate is essential to important (cid:127)the national interest and one of the most * * * objectives possible of this act. Insofar as objective, existing highways in consonance with this located on an interstate route shall be to the used practicable, extent that such use is suitable, being feasible, it the intent that local needs, to the practicable, extent suitable, and feasible, shall be given equal consideration with the needs of inter- (cid:127) state commerce.” foregoing
That policy the statement of national objectives application and the thereof to be made of Pleasant by J. Dissenting Opinion Adams, Michigan adequate guidelines to the no furnishes highway determining in board location arbitration self-evident. interstate routes seems 101(a) Proceeding in section to sec- directed as except 103(d), quote language full,' I the tion unimportant description: territorial system designated “(d) shall be The interstate * * * and shall iiot States within the United forty-one It miles in total extent. thousand exceed by as routes, to connect direct shall be so located as metropolitan practicable, principal areas, the as the centers, industrial to serve national cities, and greatest possible, con the extent and, defense points with of con nect at suitable border routes Canada'; importance Dominion of tinental in the system, Republic of this of Mexico. The routes possible,-shall-be greatest extent selected joint highway departments of action of the State subject adjoining States, each State and to the secretary5 provided approval as in subsection highways (e) All or routes included of this section. system finally, approved, if already added to said primary system, coincident with the shall be system mileagé regard without (b) forth of this section. limitation set in subsection system may be both in This rural urban located' n . . areas.” captioned “Standards,” Section 109 of Title nothing way guidelines which could contains applied in a route location the determination nearly Michigan board. The most arbitration in the the Federal [5453] partment of transferred secretary section tive At April 1, (1967). secretary 1655 of the time department of to and vested transportation‘act transportation 1967, by The of the effective date department of functions, commerce under Title executive order transportation as its in powers, transportation head, USC §1651 secretary of Act No. 11340. and duties had been of the (January et passage act. transportation theretofore seq.) *35 See, created, US Code 32 Fed made effec 16, 1968), with-'the vested were Reg -de [Aug-. Mich Opinion by Adams, Dissenting J.- provisions appear (a)
relevant as subsections and (b) are follows: as “(a) secretary plans approve The shall not and specifications aid proposed projects for on Federal- system they provide (1) facility if fail to for a adequately existing probable that will future traffic needs and meet the and a manner conditions con- safety, economy durability, ducive to of main- (2) designed tenance; that will be and constructed in accordance with standards best suited accom- plish particular foregoing objectives to conform to the locality. needs of each “(b) geometric and construction standards adopted system to be approved by for the interstate shall be those secretary cooperation with the highway departments. State applied standards, Such project, to each actual construction shall be adequate project to enable such to accommodate types anticipated volumes traffic for such project period twenty-year commencing for the on approval by secretary, date under section plans, specifications, title, of this of the and es- project. timates for actual construction such provide Such standards shall all cases for at least right-of-way four lanes of traffic. The width system adequate permit interstate shall con- projects system struction of standards. The on the interstate to such secretary apply shall such standards uniformly throughout all the States.” The underscored sentence was added Public Law September 89-574, effective 13, 1966. 80 Stat constantly It must be borne in mind that the stand- guidelines ards or we are in search in Title pertaining are those to the selection of the route highway. for an I The standards have quoted provide from Title 23 do not standards or guidelines selection of a route but rather plans, design, pertain specifications for con- *36 L969] 269 ok Pleasant Dissenting Opinion Adams, J. of the once a route struction has been The limited function of the loca- selected.6 tion board does not Nor arbitration involve these. might are able turn to the standards which well we adequate to be and which contained be considered in are quoted provisions from sections 1651and 1653 the transportation act, of of Title 49 23 the only 12 reference in Act is to Title USC, since the provisions appear title. and do not under that these majority opinion the in of the cited in One cases support 12 is a that Act “reference the conclusion Depart League, Inc., v. is statute” Senior Citizens (1951), Security 142 38 Wash 2d ment Social 478). Citizens, 10 individuals had In Senior P2d been types public recipients assistance of various provisions existing law, identified as of an under (chapter 6, Laws 172 initiative measure In favorably people on initiative voted 1950, the (2) 1651(b) language following of section Compare the (see act, Code footnote transportation department of Title US supra): policy special that hereby to be the national “(2) is declared It beauty country- natural of the preserve made effort should be lands, waterfowl public park recreation wildlife and and side and refuges, and historic sites.” regard expanded policy section national this further The USC, (f) which reads: of Title policy special hereby that to be the national “(f) It is declared beauty country- preserve natural of the made effort should be lands, waterfowl and public park and recreation wildlife of side and secretary transportation shall refuges, and historic sites. interior, housing cooperate and with the consult secretaries agriculture, development, and with the States urban programs transportation plans include meas- developing beauty of lands or enhance the natural tra- ures to maintain any 23, 1968, approve August secretary shall After versed. any project requires publicly use owned program or public park, area, or wildlife and waterfowl land from refuge recreation national, State, significance local as determined thereof, Federal, State, having jurisdiction or loeal officials national, State, significance land historic site of local from (1) there no feasible and as so sueh officials unless determined (2) land, program prudent includes such alternative the use such park, planning possible all to minimize harm to sueh rec- area, refuge, or re wildlife and waterfowl historic site reational from sueh suiting use.” 382 Mich Dissenting Opinion by Adams, J. which, comprehensive
measure No 1787 awas act re lating program to the statewide assistance amending respects prior in substantial 'law as appeared chapter of 1949. Laws Plaintiff- appellants brought claiming suit No 178 was uncon grounds, among on stitutional several which was the delegation legislative claim of an unconstitutional *37 power. Washington initiatory
The measure is substantial- ly Michigan’s majority different from Act The opinion Washington (pp of the court states 159) : objectives legislation “The of the are rather clear-
ly revealed when the entire act is read and considered together. objectives expressly Those are stated, also summary legislative in form, the declaration of policy which is set forth in section of No 178. That declaration reads as follows: “ purpose pro- ‘It is the and intent of this public by making vide for the welfare available, conjunction matching pub- with Federal such funds, necessary recipients lic assistance as is to insure the compatible thereof a reasonable subsistence with decency are recognizes and health. This act that there possibilities program of serious abuses of such a whereby fit at the deserving public those least aid will bene- expense deserving, of the and of the political and its subdivisions, and it is intended here- possible to make sufficient administrative control program of the of assistance to curb or at least minimize such abuses without at the same time de- qualified priving applicants recipients of the they rightfully assistance which are entitled.’ quoted “It will be observed that the declaration of policy lays following guides: down the standards or “(1) purpose provide public is to for the welfare. See footnote ante, p 2á8.—Beporter, v. ok Pleasant Opinion by Adams, Dissenting J. “(2) made assistance is to be available Public matching
conjunction funds. with “(3) public provided be assistance is to as Such necessary com- subsistence insure reasonable patible decency and health. way “(4) in such The act is to be administered whereby deserving of least those to avoid abuses Dublic expense the deserv- will benefit at the aid political ing, and of and its subdivisions. the State depriv- “(5) bе curbed without Such abuses are to recipients qualified applicants ing assist- rightfully they entitled. ance which are guides important of the most of these “One (2), provides that the as- standards is conjunction with’ Fed- available ‘in sistance made eral as that 1949, matching is not as broad funds. This direction chapter 2 of
contained in section Laws expressed to take ‘the where the intention was provisions possible advantage’ of the extent that the fullest security To act. Federal social governs, provision in No 178 are in conflict, two repeal. very theory implied under the At requires No 178 least, however, the declaration in *38 public program be so ad- that the ministered as assistance qualify in so receive,
to the to permits, far the fullest as the contribution State’s matching This funds. available measure Federal provision of section intent is further borne out the (not repealed 17, chapter 6, Laws of 178) inoperative declaring chapter to the extent security fails conform to the Federal social that it act.” para- quotation precedes precise
The extracted quoted Washington graph the ma- in from the case opinion jority of this Court. majority opinion AVashington that stated
The adequate stand- Court’s conclusion on the issue of (p 161): ards these words Alien 225. by Adams, Dissenting Opinion J. “Giving policy, declarations of we effect these opinion power upon are of the that the conferred department ‘ceilings’ subject to fix ‘máximums’and sufficiently guide legislative definite standards to permit judicial and to review specific, perti- individual To determinations. be legislative among assure,
nent things, standards other (1) ‘ceilings’ that the ‘máximums’ and shall high not be so or so low as to result in withdrawal matching (2) funds; Federal shall not so low resulting hardships that the compel and burdens in effect applicants recipients forego pub- they provide lic assistance should have to a reason- compatible decency able subsistence with health; (3) high and deserving shall not be so as to benefit those least expense aid at the of those most deserving. accordingly provisions ques- “We hold that the unlawfully delegate legislative tion do to the authority department.” Since neither Act 12 nor Title 23 stand- contains guidelines comparable ards or at all to the consid- guidelines erable State and Federal in Sen- involved opinion ior Citizens, detailed Court’s above quoted, applicable I fail to see how Senior Citizens is here. Majority Opinion. Part Second
Except dealing for the statements 12 Act con part majority opinion, tained in the second of the I agree part opinion acceptable that states principles may of law. It be further noted supremacy in the whole matter of interstate highways highlighted by case Road Review League, Boyd (SD 1967), Town NY, Redford Supp against 270 F 650. That case an action was Boyd, individually secretary Allan S. and as *39 transportation of the United Alexander States, ok Pleasant Dissenting Opinion J. by Adams, Trowbridge, secretary individually acting D. and as challenging States, commerce United de- highway administrator, termination of the Federal approved by secretary commerce, made under seq., regarding approved Title 23 route for a USC et portion highway. of an interstate Over objections by local authorities and conservation groups; judge upheld the district the final determina- tion of the Federal administrator and acting secretary of commerce for a route being arbitrary, capricious, neither nor otherwise with law.- accordance holding (Ex
I Sess), reverse, PA would delegation 12, to be unconstitutional as an unlawful legislative power. J., Kelly, did not sit.