92 Mich. 372 | Mich. | 1892
Lead Opinion
The petitioner is county drain commissioner
We think the probate judge in error in his construcción of this statute. Section 2, art. 18, of the Constitution, provides:
“When private property is taken for the use or benefit of the public, the necessity for using such property, and the just compensation to be made therefor, except when to be made by the State, shall be ascertained by a jury of twelve freeholders residing in the vicinity of such property, or by not less than three commissioners, appointed by a court of record, as shall be prescribed by law: Provided, the foregoing provision shall in no case be construed to apply to the action of commissioners of*374 highways in the official discharge of their duty as highway commissioners.”
The proceedings for the construction of the drain were had under the drain law of 1885 (Act No. 227), as amended by Act No. 187, Laws of 1891. This act provides for the impaneling of a jury of 12 freeholders in a court of record upon the application of any person whose estate or interest is to be affected by the proceedings. This act amends only certain sections of the act of 1885. Section 12, chap. 3, of the act (3 How. Stat. § 1740c 6), is not affected or amended by the act of 1891. That section provides:
“In case the special commissioners or jury shall decide such drain to be unnecessary, they shall so state in their return, and the drain commissioner shall thereupon dismiss the proceedings at the cost of the applicants, and no further application for the same object shall be-entertained within one year thereafter.”
It is apparent from this provision of the statute that the proceedings were to be ended only when the special commissioners or jury should decide the drain to be unnecessary, and not upon a disagreement of the jury.. When the special commissioners or jury should find the drain to be unnecessary, no application could be made or entertained for the period of one year thereafter. There is no provision of the statute as to what the proceedings shall be upon a disagreement of the jury; but from the provisions of section 12, above quoted, we are satisfied that it was the intent of the Legislature that, upon the disagreement of the commissioners or jury, proceedings might at once be had, upon the application of the drain commissioner and parties interested in lands-to be affected, for the impaneling and striking of a new jury. It is when the commissioners or jury determine the drain unnecessary that no further application for the
The writ must issue as prayed.
Dissenting Opinion
Morse, O. J.
(dissenting). The relator is drain commissioner for Jackson county. Begular proceedings were instituted by him to construct a drain, and were regularly continued to the striking of a jury of 12 freeholders, demanded by one John Cogswell, whose estate or interest was affected by the proceedings, to ascertain and determine the necessity for using or taking the lands required for said drain, and to appraise and determine the damages and compensation therefor. This jury reported that'they were unable to agree that it 'vjas or was not a necessity to establish said drain, and were discharged, April!. 12, 1892. On the same day of their discharge, but after-^ wards, one Tupper, whose estate was to be affected by the proceedings, filed a written demand for a jury in the premises, which was refused by the probate judge. Thereupon relator also made such demand, which was also refused. The probate judge also denied the petition of relator that all the proceedings subsequent to the filing of the petition for the appointment of commissioners be set aside, and new proceedings upon said petition be instituted. The probate judge was of the opinion that the statute did not provide for a second jury, and consequently he had no authority to order one.
The writ should be denied.