1 N.W.2d 553 | Mich. | 1942
The board of county road commissioners of the county of Wayne filed a petition to condemn land in the city of Hamtramck for the opening of Gallagher avenue. The street as opened would occupy a portion of appellant's dairy plant property. The petition was predicated upon Act No. 149, Pub. Acts 1911, as amended (1 Comp. Laws 1929, § 3763 et seq. [Comp. Laws Supp. 1940, § 3763 etseq., Stat. Ann. 1941 Cum. Supp. §
The appellant Johnson moved to dismiss the petition upon the grounds that in conformity with Act No. 352, Pub. Acts 1925, as amended (1 Comp. Laws 1929, § 3884 et seq. [Comp. Laws Supp. 1940, § 3884 et seq., Stat. Ann. 1941 Cum. Supp. § 8.171 etseq.]), the authority of the board to acquire lands for highway purposes was dependent upon the approval of the board of supervisors, and that the act further provided an exclusive procedure for condemnation by the board of supervisors for highway purposes. From the denial of this motion, appellant was allowed leave to appeal in the nature of certiorari.
Appellant does not question that the procedure required by Act No. 149 was followed, but contends that this act was qualified and impliedly repealed by Act No. 352. Act No. 149, Pub. Acts 1911, as *312
amended by Act No. 235, Pub. Acts 1937, is not impliedly repealed by Act No. 352, Pub. Acts 1925, as amended by Act No. 237, Pub. Acts 1937. Repeals by implication are not favored; there is no presumption of an intention on the part of the legislature to repeal a law where no reference is made to it in a later act, unless the intent is clear. Hopkins v. Sanders,
The acts are not inconsistent, as Act No. 149, Pub. Acts 1911, as amended, provides for the taking of private property for a "public improvement" where "necessary" for the "use or benefit of the public," while Act No. 352, Pub. Acts 1925, as amended, is entitled "An act to provide for the purchase and condemnation of private property for public highway purposes" and includes purposes upon which the legislature manifestly had doubt that these were public improvements within the first statute, and quite apparently the latter statute was an attempt to broaden condemnation power and not to limit the method nor make the latter act exclusive within its scope.
Act No. 352, Pub. Acts 1925, does not set forth an exclusive procedure to be used by the board of county road commissioners in condemnation for highway purposes. A very similar and quite analogous question arose as to the exclusiveness of the condemnation provisions under the county road law, specifically, Act No. 283, chap. 4, § 11, Pub. Acts 1909, as amended (1 Comp. Laws 1929, § 3986 [Stat Ann. § 9.111]), as opposed to the general condemnation statutes, Act No. 124, Pub. Acts 1883, as amended (1 Comp. Laws 1929, § 3784 et seq. [Stat. Ann. §
Effect should be given to each of two acts upon the same subject matter, if, by reasonable construction, it may be so done. Rorabacher v. Nichols,
Further, as bearing on the intent of the legislature, it is significant that at the very session when Act No. 352, Pub. Acts 1925, was passed, the section of Act No. 149, Pub. Acts 1911, dealing with public corporations was amended (see Act No. 37, Pub. Acts 1925). While Act No. 37 was passed before Act No. 352, it did not go into effect until afterwards. In so dealing with both acts at the same session, it is quite evident that the intent of the legislature was that both should be available to road commissioners seeking condemnation of lands in cities for highway purposes.
The order of the trial court denying the motion to dismiss is affirmed, with costs to appellee.
BOYLES, NORTH, STARR, WIEST, BUTZEL, BUSHNELL, and SHARPE, JJ., concurred. *314
