*1 required produc- part plaintiff have its would accepted were and record the deeds tion before opin- security made. In our him for the loans before he is not entitled ion, us, under the record com- to rule and his bill of stated, the benefit plaint dismissed, have with costs to should been appellant, providing here a decree so and entered. unnecessary renders it reached
The conclusion sufficiency allegations upon pass in the complaint nor entered, the decree bill of sustain delivery the effect of the of the as- do we consider being signments assignee without the name of the supra. O’Hair, Kurbel v. inserted therein. J., North,
Clark, McDonald, Potter, C. JJ., Wiest, Butzel, concurred. Fead, JAMES S. HOLDEN CO. v. CONNOR. Municipal Corporations Villages-—Ordinances—Police 1. — Power —Zoning Ordinance Void.
Village zoning pursuant ordinance Comp. enacted to 1 Laws 2633-2641, providing buildings setback §§ lots, certain corner apply equally not corner to all does in district, lots arbitrary, and which is discriminatory, and upon plan fairly based designed statutory to accomplish purpose, is invalid. Per North, JJ. Head, Wiest, Butzel, J., concurring in result. Potter, On building establish line, see annotation in 42 L. R. A. (N. S.) 1123; (N. S.) 44'L. R. A. As to constitutionality police regulations concerning buildings, see annotation 16 L. R. A. 400. On .validity and zoning building pro- _ construction ordinance hibiting or regulating subsequent alterations, addition, extension or substitution 920. existing buildings, -see- in 64 A. L. R. annotation v. Connor. James Zoning-Ordinance. Building Permit — 2. Mandamus — under in- owner building permit was refused Where compel granted to ordinance, mandamus is village zoning valid *2 JJ., J., Sharpe, Clark, and McDonald and C. its issuance. dissenting. Wayne; (Ormond F.), Appeal J. Sub- from Hunt (Calendar 35,859.) 1931. No. 27, mitted October April 1932. Decided
n Company, by a Mich- Mandamus James corporation, compel igan Eichard P. and Connor building Village commis- of Crosse Pointe others, permit. Judgment building for a sioners, to issue appeals. Plaintiff Eeversed. defendants. counsel), (Louis Wurser, Wurser C.
Wurser & plaintiff. Attorney Village (Beaumont, Meder, E. Albert counsel), for defendants. Harris, & Smith appealed (dissenting). has Plaintiff C. J. Clark, compel defendants, judgment in mandamus from building com- village Pointe and of Crosse building permit, re- to issue clerk, and missioners zoning ordinance. under a fused or- question the section whether The valid exercise -as a sustained dinance Comp. enabling Laws act, police under § ; ' prox- thqishore Clair, close St. On Lake municipalities, imity- number are-a Detroit, .of them, defendant-village, residential among- all village, contains defendant -character. nearly .population' It is 5,000-. has a
acres, important by-Mack an avenue, the north bounded highway by leading on the Detroit; out east Fisher road; Clair; on the south Lake St. and on southerly the west Cadieux road. Its most cross important high- street is avenue, Jefferson also an way leading out of Detroit. five other streets crossing important being east and west, most leading Kercheval, which, out of crosses the Detroit, village of Park, Grosse Pointe and the defendant village, village and to the of Grosse Pointe Farms. highway villages. It is a main of Detroit and village The defendant has several north and south being streets, the first east of Cadieux Notre Dame, being and the second Clair, St. which is the chief being north and 100 feet ex- street, south wide and tending between avenue Mack Jefferson avenue.
Under ordinance there are five zones. Three *3 nearly resident, are which take the whole area of village. the There is a small, narrow commercial along remaining zone Mack The avenue. zone is comprises district,” “local business which a narrow strip on each side of Kercheval near two and one- length beginning in half blocks at Cadieux. There a small also business district the southeastern village. part of the the local Within zone business are a few corner as lots, the ordinance provides: yard along a
“On corner lot there shall be a side the side street lot line all where cases such line substantially the continuation, without interven- ing streets, street lot line of ad- lots an joining adjoining residence or of district, in a lots yard local business district on which re- a front quired yard The herein. width of such side shall except be not less than 10 that where width feet, the passage of a corner lot of record at the time this ordinance is less than 50 the feet, width of the v. Connob. Jambs yard reduced to required on that lot side lot.” of such width one-fifth yard controversy setback. The is of side corner of on the southeast Plaintiff owns a lot St. has of Kercheval and Clair. the intersection frontage Kercheval. Plaintiff desires feet building. village occupy fully with a store applied, requires, here a ordinance as side under the yard along On the 10 feet wide St. Clair. setback building has corner a northwest intersection along having 10-foot St. Clair. been erected setback apply cor- The ordinance southeast does Kercheval, intersection of ner Cadieux Notre Dame and corner of nor to the southwest immediately of the business back for, Kercheval, and between Notre Kercheval, south district “intervening” street, there is an Cadieux, Dame and length, Place. called Kercheval block in one applicable north- now to the is not The ordinance corners of intersection and southeast east were as such corners Dame, and Notre Kercheval fully occupied buildings was when ordinance passed. will become The ordinance its terms buildings in case of new on such cor- effective there present application, has we ordinance ners. The corner lots in the record, to seven read the district. local business heavy including' traffic, motor
Kercheval lights traffic at There are its intersections buses. *4 Dame, Cadieux, and and'officers Clair, with St. Notre duty kept It is the chief in that busi- are on .district. village adjoining large of the and ness district public just territory. The the school is north site of and Notre between Cadieux Dame. Kercheval, community building just Kercheval, is north of Michigan Reports. yet paved near full St. Clair. St. Clair is not its pavement being 30 the now feet wide. width, requires, The ordinance in the residence district adjoining question, building- a front Dwellings line or setback 20 feet. were erected zoning on Clair ordinance, St. before the and those plaintiff’s property south and that street average have a mean or setback a little more than along 10 feet. The mean setback the street feet or more. open spaces
The evidence is that make for light better air, and that re- such a setback as plaintiff quired of makes less obstruction to view at public safety the intersections and makes for public use of the streets.
Appellant argues unnecessary, that setback is pavement only as the on St. Clair is now 30 feet zoning But it wide. must be remembered that plan today in a not for rooted but for the tomorrow. day fully paved. It looks It when St. Clair will be in Pritz Messer, is said 112 Ohio N. St. 30): E. problem
“This
must
viewed from the stand-
point
coming generations. Regarded
from the
easy
present,
outlook of the
limited
immediate
it is
degree
cogency
to claim with some
that there is
public
no relation between these
and the
measures
safety,
Taking
long
health,
morals.
view into
looking
past,
the future, however, back into to remind ourselves what detriment the unrestricted
city
congestion
housing,
of,
both
life,
traffic and
already
public
done the
welfare, we do see a real
relation
between
substantial material welfare
community
city
plan
effort
this
physical life.”
urged
zoning
these
restrictions are
purely
beauty, symmetry,
aesthetic
order.
reasons —
*5
S.
Connor.
James
present
restrictions
state,
that such
is
law,
grounds.
purely
In
aesthetic
sustained
are not
where the
said,
been
cases, it has
in some
deed,
grounds—
on orthodox
were sustained
restrictions
safety,
public
the fact that
that
morals,
health,
they
will not
aestheticbenefit
in incidental
also result
though
zoning
ordinance,
as
law
invalidate the
by resulting
handicapped
zoning
aesthetic
were
quotation
regard,
from American
In
this
benefits.
ap
journal, August,
p.
1922,
470,
Bar Association
pears
City
In
Outdoor Adv. Co.
in General
dianapolis,
L. R.
N.
72 A.
coming beauty of con into account as to take * # * universally conceded now sideration. beauty public in the constitute an element justify of condemna welfare which will * * * * * # the rec come to tion. we When beauty justify ognition element to the ex as an * * * police power the courts have ercise of the beauty justifica willing acknowledge as a not been they admitting more and without are tion, but giving weight fitness to the consideration of more propriety of his own.” in a man’s use police power the exercise of record, On this safety public sustained on consideration public attaching weight for health without to the re also tunate circumstance that aesthetic benefit Realty Village Co., v. Ambler sults. Euclid Sup. 54 A. L. R. U. Ct. urged owners of as between Discrimination is reasons, but lots, owners of inside corner lots and regards public side set- streets, travel on ap- have no lot, on corner can back on side street plication to inside lots. respect urged in of mean
Unfair discrimination
unequal
fixing
from
street
distances
setback
*6
buildings
for erection of
of the same character under
like circumstances.
have called
We
attention to
required
plaintiff
the fact that the
of
setback
less
than the
of
mean setback
houses
the street and
is fixed at the minimum of 10 feet. The contention
is answered
v. Fox,
Gorieb
“It is said, first, that the standard furnished is vague reality so and uncertain as in no be stand- cent, per ard at all, since the or 60 houses, of them, any may variety in block stand at a from distances in street, which event cannot it be determined cent, per from the ordinance whether 60 of the cent, per houses nearest to the street, or 60 of those from farthest the street or some other method of govern. present calculation tois But in the case this put (a) permit contention since aside, granted building was and the line fixed under the proviso priate appro- which reserved to the in council authority building cases to fix the line with- (b) out reference to this limitation, as to the existing question, houses in the block in the actual respect building upon differences lines cent, per which more than of them stood are so slight entirely upon negligible question as to be certainty. “The evidence shows that the variation in the cent, per existing location houses was only ignoring foot, one-tenth a and, this incon- sequential building difference, the established line slightly over 42 was feet back from the street. James S. Co. v. Connor. designated petitioner’s building line was sub- stantially being more favorable to Mm this, than more than feet seven nearer the street. Whether provision fixing of the ordinance, the line with cent, per relation to the location 60of of the exist- ing general, specific, houses, or in some other application vague is so as to amount a denial of process, question due is a which does not concern petitioner, present applied since, to the in the facts as. enough, any case, is definite since, excepted operation he event, been has from the provision; appear and it does not alleged unconstitutional feature of which he com- injured plains operated deprive him him * ** *7 any right under the Federal Constitution. proviso
“The
under which the council acted also
violating
equal protection
is attacked as
clause
ground
proviso
on the
that such
enables the council
unfairly
by fixing
to discriminate between lot owners
unequal distances from the
street
the erection
buildings
of the same character
cir-
under like
cumstances. We
cannot,
or-
course, construe the
may
meaning
power
dinance as
that
ex-
be thus
may
erted nor
;
we assume in advance
it
that will be
arbitrarily,
capriciously,
exercised
the council
or
inequality.
enough
complain
with
It will
time
be
to
power
if
when,
ever, shall be thus abused.”
Houghton,
State,
See, also,
ex
McKusick,
rel.
907);
permit
when a corner
10 feet
than
a setback of less
passing the ordinance
lot
of record at the time
say
it
sufficient
than 50
width,
is less
feet
we
record.
cannot so find on this
uniformity
have
should
course,
ordinance,
application.
classification,
But there
grounds,
suffi-
and it will be
if made on reasonable
uniformity
applies
if
in fair
cient
the ordinance
particular
particular
A
corner
all in the
class.
might require larger
corner
another
setback than
might be sus-
if reasonable,
and such classification,
fairly
applies
to the four
tained. The ordinance
plaintiff’s
Clair, where
corners at Kercheval and St.
only
corners, as
a few
There are
is.
apply.
It is
can
which the ordinance
stated, to
been
presumed
speaking
of width
council,
the common
purpose
and knew what
had a
record,
of lot of
produce
doing.
would
the ordinance
Whether
was
of Notre Dame
at the intersection
result
a different
say on this record.
we cannot
Kercheval
council intended in effect a
common
Whether
for that corner or
result or classification
different
say on this record.
can-
we cannot
We
corner
other
it is made to
invalid unless
hold the ordinance
clearly
affirmatively
appear
be unreasonable
operation. Building
oppressive in its
Commis-
*8
(Ann.
Judgment should be with costs. affirmed, JJ., Sharpe, McDonald concurred with J.C. Clark, James S. Holden Co. v. Connor. Comp.
Fead, J. Under the statute, Laws 1929, §§ authorizing 2633-2641 zoning inclusive, ordi- provided nances, it is that: regulations
“Such shall he made in accordance plan designed congestion with pub- a to lessen on the promote public safety gen- lic streets, to health, eral welfare.”
The ordinance at bar contains two conditions of operation within the small local business district: contiguous The corner lot must be to a res- intervening idence district without street. This ex- cludes south side of Kercheval avenue between Any Cadieux and Notre Dame. consideration of the statutory public purposes apply equal would with exempted force to the lots as to the in the others exemption arbitrary, district. The discrim- inatory, general and without basis of welfare. yard
2. The width of the side varies with the pas- width of the corner lot of record at the time of sage public of the ordinance. It is obvious that the purposes may reasonably only by be worked out yards. establishment of a definite standard of side The size of the frontage owned an individual can public purpose. have no substantial relation to such operation clearly The conditions of its render the arbitrary, discriminatory ordinance unreasonable, against plaintiff, upon plan fairly designed accomplish statutory purposes, and invalid. question constitutionality The of the statute is not raised. judgment will be reversed, and writ of man- prayed,
damus issued as with costs. JJ., concurred with Wiest, North, Butzel, J. Fead, *9 reversal). (concurring I in dissent J. Potter, opinion The
from the of Mr. Chief Justice Clark. passed quoted opinion, after was in his ordinance, question. plaintiff acquired The real estate my opinion, un- be sustained not, ordinance power. police under der It could be sustained just provided if for of eminent domain compensation plaintiff. this, not does do and void. is, unconstitutional therefore, deprived (a) property That one shall be just compensation process due law, without right, guaranteed fundamental both therefor, is a The fifth amend- Federal State Constitutions. pro- ment of the United Constitution States vides : * * * person deprived life, be
“No shall liberty property, process law; or without due nor property public private for with- use, taken shall out just compensation.” 14th Amendment to the Constitution of the The provides: United States any or
“No State shall make enforce law which abridge privileges shall immunities citizens or deprive any nor States; of the United State shall any person liberty property, life, or without due process of law.” provides:
The Constitution of this State property public “Private not be shall taken by any corporation public nor use, without the being just necessity therefor first determined and compensation being therefor first made secured prescribed Toy manner as shall be such law.” Sec- art. 13. tion property?
(b) What is idea of jurisprudence imperial in the was imbedded *10 James Connor. sought Rome. and Puffendorf Grotius the base agreement compact. .on idea Blackstone criticizes Barbeyrac, the views of Grotius, Puffendorf, Tac- property itus, and Locke, insists the of basis occupancy. is Blackstone’s views have been crit- Henry icized Sir Maine, Pollock, Chief Baron Spencer thought and others. Herbert and Lorimer property naturally was created the economic necessity Hegel of individual existence. conceived projecting it resulted from the individual will over objects. Ihering says, “Property external but periphery my things.” person the of extended to says, totality person’s proprietary Kohler “The of a powers property.” constitute his
(c) separation At the time of the the Amer- Carring- ican colonies from Great Britain, Ewtick just Trials, ton, Howell’s State had been speaking decided. Lord Chief Justice Camden, (1066): court, said great end, “The for which man into entered society, property.” was to secure their “ spoke
Madison, in Federalist, the tenth of: The diversity men, the faculties of from which rights property originate.” Gouverneur Morris, liberty in the constitutional said life and convention, property. were said to be of more value than “An view, accurate of the matter would nevertheless prove property object society.” that was main expressed Rutledge property view that
John society. object principal King sup- was the Rufus ' ported Pinckney same doctrine. C. Charles spoke government “A of this as instituted for protection property.” Pierce Butler called it, pro- government principally “A instituted for the property.” agree tection of James Wilson did object property primary govern- was the sole and ment. legal conception
(d) often teen considered and defined.
“Property thing than the mere more person right elementary owns. It includes acquire, dispose it. The Con use, prop protects attributes of these essential stitution erty. * * * Property use, consists of free acquisitions disposal person’s enjoyment, of a by the or diminution save law control without land.” Buchanan *11 (38 Warley, 245 U. S. 74 60, v. Sup. 1918A, Ann. 1918C, 210, L. R. A. Cas. Ct. 1201). merely
“Property thing in in its a consists ownership possession, in and but the unrestricted right disposal. Anything enjoyment and use, of destroys any property to these of which that of elements destroys property
extent the itself. The sub- right property If value of lies in its use. the stantial of property an- value of the use be denied, right. ownership nihilated and a barren becomes law the use of a certain Therefore a which forbids strips property it of an essential attribute of kind ownership.” prescribes actual result its and in City Spann 111 350 W. Dallas, Tex. S. of 1387). A. L. R. ‘‘ property practically of consist, does but as at- what Of recognized the law the incidents which tached to the idea of right property? of not the or Is title, apart,
property
title to
and
in,
lands,
from,
or
purely metaphysical
stripped
all
a
incidents,
of
to
abstraction, as immaterial and useless
the owner
dreams are made of?’ Is it not a
as ‘the stuff that
injury
injure
if it
him,
all,
him at
much less
to
can
deprive
in-
him this
than of the
abstraction,
to
cidents
of
practically
property,
render it
of
which alone
among
prop-
him? And
the incidents
valuable to
of
anything
right
erty
not the
to
in
or
land,
else,
Connor.
Jambs
enjoy
to
to control
far
nse,
its beneficial
so
beneficial,
most
use,
that
others from
exclude
property,
practicable idea of
one most real and
deprive
greater wrong
much
which it is a
mere abstract
idea of
than of the
man,
right
to control
incidents
or
use,
without
This
all
fact,
use, constitutes,
it with reference to its
that
except
right
ownership,
is beneficial
right
dispose
incident would
latter
it;of
and this
stripped
worthless,
barren and
be rendered
Rapids Booming
right
Co. v.
to the use.” Grand
“Property may as certain be defined things pertain persons, and which are rights law. are created and sanctioned right These right right exclusion and the user, Ed.), (3d disposition.” 1 Eminent Domain Lewis, §63. object,
“Property,
com
in a determinate
then,
posed
the un
elements, tb-wit,
of certain constituent
disposal,
right
enjoyment
use,
restricted
object.” City
Hill,
Louis v.
Mo.
St.
21 R.
861, L. A.
S. W.
any
‘property’
every interest
“The term
includes
any
everything
one
have in
that is the sub
*12
by
together
ject
ownership
right
with the
to
of
man,
freely
enjoy
dispose
possess,
of the
use,
same.”
Bailey
People,
(60
54 L.
98,
v.
“Property
nothing
in
itself
a
sense is
more
right
possessing, enjoying
the exclusive
of
than
thing
disposing of a
which of course includes the
Chicago
thing.”
& W.
v.
use of a
I. R. Co. Railroad
(4
Rep. 173).
Co.,
“The of in- Constitutions, in the Federal and State anties _ enjoy, protect, possess, right acquire, to cludes and p. dispose property.” 12 C. J. of such right property it the carries with “The own to right it. and control over dominion to exercise management of control, and dominion, When right away property to him, from taken one’s away private property the the To take is violated. property is to take and control over dominion right property property for the absolute itself, right and the man- dominion, control, includes City, agement v. thereof.” Fisher Bountiful Pac. Utah, ‘property’ in the tenth article of “The word rights, provides that ‘whenver bill of which any property public exigencies require that the public appropriated he uses, individual should be compensation therefor,’ shall receive a reasonable as to include have a liberal construction such should every enjoyed 'be valuable interest which can Colony recognized & as such.” Old Gray Plymouth, County River R. v. Fatt (80 Mass.), 155. (e) talcing property? What constitutes a - commenting Buccleuch In on the case Dulce Metropolitan Works, Public L. R. 5 H. Board Delaplaine Railway Co., L. 418, it was said Rep. 386): Am. Wis. applied proper
“The test to determine the mean- ing ‘injuriously giving words, affected’ as right compensation was whether the act done carrying question out the an works was act right given a if had would have action the works * * * parliament. not been authorized In other act of affecting if words, the act the land had been done an would be liable individual, he for the ’’ damages. *13 S. v. Connor. Co. James consequence injured of an act “If land'is subject action at of an which would have been the may- compensation statute, common law but for the required Eminent Do- be main and awarded.” Mills
(2d Ed.), § * * * constructing company railway “If a adjacent neighbor injurious to an road did an act original ing proprietor if for which done responsible at common he would have been owner compensate company be liable to should law, the injured.” proprietor & R. so Texas Sabine 3 L. R. A. Tex. 32 S. Meadows, 73 W. 565). injury, if “The would the caused a is, test authority person give
private without statute, against person? plaintiff If of action such a cause compensation then he is entitled to notwithstand so, legalizes ing damaging the statute work.” City Atlanta, Peel v. The Ga. 138 E. 582, 8 L. R. A. rights very “From the nature of these user and they exclusion, is evident cannot be mate- taking rially abridged ipso facto, without, ‘property.’ right owner’s If-the of indefinite user property is an element of absolute or com- essential plete ownership, physical whatever interference right ‘property’ although takes annuls this — may rights (in him owner still have left to valuable article) of a more limited and circumscribed nature. He has not the same that he formerly right; he had an unlimited Then, had. only right. limited absolute now, he has a His ownership qualified reduced to has been owner- ship. Restricting right using unlimited A’s right using of land to a limited the same acres greater injury work a far to A than to land, simple him acre, from the title fee to one take leaving right using the re- him the unrestricted Nobody maining 99 acres. doubts that the latter *14 Michigan Reports. ‘taking prop- transaction would of constitute a ” erty.’ 504, Eaton v. 51 N. H. Co., Railroad (12 Rep. 147). Am. appeal justice “It does not to one’s sense of to say right possessed that the exercise of a not of possessor taking as much benefit to the as the of right that passer.” from the owner would be to the tres- Township Stock v. 114 Mich. Jefferson, of 355). 357, 360 L. R. A. rights “Whenever the lawful of an individual to possession, enjoyment use and of his land are any degree abridged by destroyed reason exercise prop- of eminent domain his erty pro is, tanto, taken, and he is entitled com- to pensation.” (2d Ed.), 1 Lewis on Eminent Domain §56. always principle
It has been a basic of the law great public that “If pub- the work is of benefit, the pay can afford to it.” lic v. Eaton Co., Railroad supra, 518. say prop-
“To a man he that shall not use his erty pleases, as he under certain is to conditions, deprive pro enjoyment him tanto of such property.” Ronayne Loranger, v. 66 Mich. 378. enjoyment deprive deprive
“To him of such is to wholly, him of itself, or to the extent Township of the mischief.” v. Jefferson, Stock supra, quoting Koopman Blodgett, from Rep. Mich. 610 Am. St. transparent fallacy say “It is a this is taking property, a not of his because land itself utterly taken, he excluded from and it, nominally, because the title, still remains in him, and deprived merely he is of its beneficial use, property, simply prop- not the is erty. but an incident of proposition, though Such a in some instances very something by courts, like it been sanctioned respectable, cannot be rendered nor sound, even James-S. v. Connor. Rapids great authority Grand names.” the Booming supra, Jarvis, Co. v. deprive any land him use his
“To valuable pro deprive that, So land him of his tanto. is principle applicable where of his is as of the Constitution deprived partially uses the owner is land where Taking wholly deprived it. as he part is as much forbidden the Constitution taking Balliett, 65 Ohio the whole.” Mansfield *15 628). 451 E. 58 L. R. A. St. N. ‘taking’ used in an un-
“The term
should not be
not be
reasonable and narrow sense.
should
property, and
limited to the absolute conversion of
applied
only;
to land
but it
include cases
should
destroyed by the action
the
where the value is
of
injury
government,
property
the
inflicted to
or serious
is
exclusion
the owner from its
itself, or
of
enjoyment,
any
appurtenances
or from
of the
there-
taking
the
to. In either
these cases it
a
within
is
* * *
meaning
provision
the
the Constitution.
any
public
If the
take
action which becomes nec-
essary
rights
public
to
valuable
use,
subserve
and
thereby
with,
of an individual are
interfered
and
damaged
destroyed, he
to
or
entitled
the com-
is
gives
pensation
and
therefor,
which the Constitution
regarded
damage
a
destruction must be
as
such
”
Supervisors,
‘taking.’
Mich.
Pearsall
(4 L. R. A.
“Any
property
injury
the
of an individual
to
ordinary
deprives
it,
the owner
use of
which
taking,
equivalent
him
and entitles
to a
to com-
* *
*
any regulation
pensation.
And
which
profitable
prop-
any
deprives
person
use of
his
taking,
erty
him
and entitles
to com-
constitutes a
rights
slight
pensation,
the invasion of
so
unless
justified
permit
regulation
to
to be
under
as
Cooley’s
power.”
police
Limita-
Constitutional
(8th Ed.), pp. 1158, 1160,1161.
tions
Michigan Reports.
unsatisfactory
very
“It
be
would
a
and
curious
provision
construing
result, if
a
of constitutional
always
adopted
law,
protection
to
understood
have been
security
rights
to the
individ-
of the
against
government,
ual as
has re-
jurists,
ceived the
commendation
statesmen and
placing
just principles
of the
commentators
common law
subject beyond
power
that
ordinary legislation
change
them, it
or control
government
shall
held that if the
refrains from
the absolute conversion of real
to the uses
public
destroy
entirely,
it can
its value
can
irreparable
permanent injury
any
inflict
ex-
subject
tent, can, in effect,
it to total destruction
making any compensation,
without
narrowest sense of
because, in the
word,
taken for the
public
Pumpelly
Bay
use.”
v. Green
Co., 13 Wall.
S.)
(U.
principle
It seems to have
been settled
of univer
right
compensation
lawsal
that the
is an incident
to the
exercise
of eminent domain; the
inseparably
one is
connected with the other; and
they
separate
be said to exist, not as
and distinct
*16
principles,
parts
prin
of
but as
one and the same
ciple.
(17
Law)
2
Johnson,
Sinnickson v.
Har.
N. J.
(34
184), quoted
approval
Dec.
129
Am.
with
Pumpelly
supra;
Bay Co.,
v. Green
United States
Lynah,
(23 Sup.
349);
v.
of and it will not be impair to invade suffered erties or the fundamental lib- Cooley’s of citizen.” the Constitutional (8th Ed.), p. Limitations 1229. v. Connor. James ‘‘ legislature police power in this State of the guise omnipotent. of under the cannot,
is not arbitrarily destroy property rights regulation, and Rapids City v. Powers, without reason.” Grand Rep. 28 Am. A. St. 94, 498, 89 Mich. 276). L. R. police power yet prepared the to hold “I am legislature omnipotent; can and absolute 'arbitrarily in defiance of reason, without pass any right, power, fit under this see statute against provided ex- not run some it does provision press or Federal Constitu- our State Township Whitney Board, 71 Mich. v. tions.” 237. protect
(g) were framed to Constitutions rights to mark out the individuals; and liberties scope powers government; define the limits of the autonomy, into which neither the State of individual agency any governmental thereof nor subordinate may enter. adopted provision for the “The constitutional security rights
protection in- to, the of, and government.” against Pearsall dividual as Supervisors, supra, protections legal are the same
“The against against persons others, artificial municipalities, any of its itself, one State posses- deprive the owner of his more no private citizen.” than has the sions Burford Rep. Rapids, Am. 53 Mich. Grand sought to ascertain what We have constitutes upon property, taking property, limitations police power the State and the the exercise of the governmental thereof, subdivisions subordinate language meaning of the Constitutions *17 governments language when such and Federal State 600 257 adopted. by judicial Changing
was used and
con-
meaning
aptly
struction the settled
of words
used in
leg-
the Constitution is more than the exercise of
power.
private rights
islative
It wrests
from their
moorings,
lets down constitutional
barriers,
government.
alters the foundation of
wrong may
If the
Constitution is
be amended,
long
but so
as it remains unamended
are
courts
language
plainly
construe its
now to mean what it
adopted
meant when used
those who framed and
plaintiff
it. No one will contend
could
been
have
deprived
part
property by
police
of a
of his
a mere
regulation
give
language
then. We cannot
meaning
the Constitution
have;
it did not then
ex-
police
cept
pro-
exercise
from the
say
police
hibitions of
Constitution;
power may be exercised, not in accordance with the
provisions.
Constitution, but
violation of its
(h)
independent
judicial
It seems
clear,
deci-
elsewhere,
sions
this
ordinance is
violation
Michigan.
Constitution of
The best considered
position.
elsewhere
cases
sustain this
beyond
Building, lines
which the owner cannot
.
police power.
build
not be established under the
(130
Cooke,
Willison v.
SPENCER OF Negligence. Negligence Negligence Subsequent —Concurrent — parties, negligence of doctrine concurrent Where there is application. subsequent negligence has no Railways Negligence—Proximate 2. Street —Motor Vehicles — Negligence. Subsequent Cause — ear automobile onto street Where automobile driver drove his pass approaching street parked automobile, traek to in view of occurred, negli- car, on track until collision his continued accident, gence proximate cause of and doctrine of sub- was inapplicable; especially appears where it sequent negligence is one-half less than second and after collision occurred sa,w oncoming motorman first automobile. driving contributory negligence As to ahead of one vehicle L. along track, car or close to see annotation 63 A. toward street R. 33.