14 N.W.2d 140 | Mich. | 1944
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *482
This appeal is from denial in the circuit court of a motion by Warren township to dismiss the petition of the city of Detroit, Wayne county, for condemnation of private property for the purpose of constructing and operating an airport site in Warren township, Macomb county, Michigan. Our decision handed down herewith in Warren Township School District No. 7 v. City ofDetroit and Agar v. City of Detroit, ante, 460, is related to the same subject matter. This petition recites that it is filed under the law as provided in "1 Comp. Laws 1929, §§ 3763-3783, as amended by Act No. 296, Pub. Acts 1941 (Comp. Laws Supp. 1943, §§ 3768-3770, Stat. Ann. and Stat. Ann. 1943 Cum. Supp. §§
The reasons first assigned by the township in support of its motion are that plaintiff's (the city of Detroit) petition is fatally defective because "the proposed airport does not involve a matter of public health or safety," that it "proposes to vacate or alter public roads and highways which have previously been established," and that "it contemplates the establishment of an airport for private use and not for public use," in violation of the Fourteenth amendment of the Federal Constitution. We know of no constitutional provision which restricts the taking of private property for public use, as proposed in the instant case, to only such purposes as have to do with public health or public safety. Instead the field is broadened to include public welfare or public necessity. The right to exercise the power of eminent domain in the instant case is not limited by the restrictive provisions in article 8, § 22, of the Constitution (1908). The power of eminent domain is inherent in State sovereignty. Cityof Detroit v. Oakland Circuit Judge,
The township also urges in support of its motion to dismiss that granting the relief sought in the condemnation proceedings would be in "direct contravention and violation" of a township ordinance under the provisions of which "the use or occupancy of any lands or premises for an airport * * * is prohibited" in that portion of Warren township where the proposed airport would be located. This contention cannot be sustained. Such a township ordinance is unenforceable and void for the reason that it is in direct conflict with the following State statute: "The State administrative board or the legislative body of any city or village or township in this State is hereby authorized to acquire, own, control, lease, equip, improve, operate and regulate landing fields, seaplane harbors and airports for aeroplane and other aircraft either within or without the limits of said cities and villages," 1 Comp. Laws 1929, § 4829, as amended. See, also, People v. McDaniel,
The township further assigns as reasons in support of its motion to dismiss that plaintiff failed to obtain the appointment of a guardian ad litem upon *486
the filing of its petition, and also that plaintiff failed to comply with the soldiers' and sailors' relief act of 1940 as amended (54 Stat. at L. 1181, § 201). As to the appointment of a guardian ad litem, the circuit judge in his opinion properly stated: "It is the opinion of the court that since no minor, insane or incompetent persons were named as defendants, that appointment of a guardian ad litem as of the present time is a compliance with the act." (1 Comp. Laws 1929, § 3790 [Stat. Ann. §
Numerous other reasons are assigned by the township in support of its motion; among them are the following: (1) that plaintiff failed to join all parties interested, including the Federal government which advanced funds for the construction of public improvements in the territory sought to be condemned, and holders of revenue bonds issued incident to the construction of drains, sewers and water mains extending into the proposed site; (2) that taking the property sought to be condemned will deprive the township and the county of Macomb of taxable property of great value; (3) that this condemnation *487 proceeding was instituted in violation of the provisions of the Detroit city charter, which provides that condemnation proceedings to secure private property for a public improvementin the municipality shall be prosecuted in the recorder's court of that city; and (4) that the statute under which this proceeding is brought is void because the title does not expressly authorize petitioner to condemn private property for the purpose of constructing an airport. Each of the foregoing and other reasons urged by appellant in support of its motion to dismiss have been given careful consideration, but our conclusion is that each of them is without merit.
The order of the trial court denying the township's motion to dismiss is affirmed and the case remanded for further proceedings. Plaintiff will have costs of this appeal against Warren township.
STARR, WIEST, BUTZEL, BUSHNELL, SHARPE, and BOYLES, JJ., concurred. REID, J., did not sit. *488