People ex rel. Bristol v. Board of Supervisors

20 Mich. 95 | Mich. | 1870

Christiancy, J.

If the action of the Board of Supervisors under the then existing law, constituted of itself, or with the aid of the subsequent act of the Legisla!ure of March 30, 1869, (ratifying and legalizing that action ), a valid discontinuance of part of the state road in question, then there is no ground for maintaining this certiorari, and the discontinuance must be affirmed, otherwise reversed.

By the act of May 16, 1846, {Latos of 1846, p. 240) it was enacted Section 1, “That the Board of Supervisors of the several counties within this State are hereby authorized and empowered to cause to be laid out, established, altered, discontinued or opened all State and Territorial Roads, heretofore or now laid out or hereafter to be laid through or within their respective counties, whenever they may deem it for the interest of the public.”

Section 2. Whenever the Board of Supervisors of any county are petitioned to by at least twelve freeholders of each of the townships, through which any such road or roads may pass, they shall upon such petition authorize the Commissioners of Highways of such townships, to cause the line of said road or roads within their respective townships to be surveyed and located therein, and such Commissioners shall report such survey and location to the Board of Supervisors of their county; and upon examination of such survey and report, said Board may declare such road or roads duly laid out, established, discontinued, opened or altered as the case may be; provided that such Board shall deem the laying out, establishing, altering, discontinuing, or opening said road or roads for the interest of the public.”

These two sections (and two subsequent sections not necessary to be here noticed), were inserted and re-enacted verbatim in the act of April 8, 1851, “to define the powers and duties of Supervisors, &c.,” with the omission only of the proviso at the end of the second section.

It is insisted by the plaintiffs in error that the Board could acquire no jurisdiction of the question of discontinuance, without a petition of twelve freeholders of each of the townsnips of Delhi and Lansing, in the County of Ingham, through which the road runs; and this objection is well taken if the Board derive all their authority to act from the second section.

But after a careful examination of the act, I am inclined to think that plenary jurisdiction of the question was conferred upon the Board by the first section of the act; and that under this section they have full power to act, without any petition, upon their own motion, and. without any restriction from the provisions of the second section; that the second section was intended not to confer a poiuer, but to impose the duty of acting when the petition there mentioned should be presented; in other words, that the first section confers the power without any restriction not mentioned in it, while the second imposes a duty under certain circumstances, and provides how that-duty is to be performed. This view may account for the omission in the act of 1851, of the proviso contained in the second section as passed in 1846. The Legislature of 1851 would seem to have rejected the proviso in the second section, with the idea that the power or jurisdiction was conferred by the first section, which already contained a similar provision, which they thought unnecessary to be repeated in the second, as this imposed a duty subject to the jurisdictional limits only of the first section. If this be not the true interpretation — if the Board was intended to possess no. power over the subject except that contained in, and limited by the second section — then the first section can have no effect whatever, and must have been inserted with no intelligible purpose;-^, supposition we are not at liberty to indulge, while the act will admit of any other rational interpretation.

But is objected that, if this construction be correct, it was still necessary that the Board should have found expressly that the discontinuance was for the interest of the public. Whether this would be presumed, or whether its omission would constitute error, it is unnecessary here to decide, since, if the Board had jurisdiction, this omission would at most constitute an error in its exercise, and not a want of jurisdiction. And it is admitted that if the Board had obtained jurisdiction, a mere omission like this or other irregularity, might be cured by the Legislature, and that the act of March 30, 1869, would have this effect.

But I think the same result must follow whether this Board had jurisdiction or not.

The parties who seek to reverse the action of the Board are not the owners of the land through which the discontinued portion of the road passes. They show no rights affected, but such as are common to all other owners of property anywhere along the line of those portions of the road not discontinued; if, in fact, they show any thing more than the mere right of travel, common to all the people of the State. The whole burden of their complaint is that they are deprived of a direct road to the city of Lansing, and as far as we can judge from the case, will be compelled to travel from a quarter to half a mile further in going to and returning from' that place. They complain of this, it is true, as depreciating the value of their property. But this, if there 'be any such damage, being a mere incident arising from the interference with the general public right of travel, common to all the people of this State, can hardly be looked upon as a vested right of property, which it would not be competent for the Legislature to take without compensation; and, if they are entitled to compensation, the fourth section of the original act and the twenty-eighth section of the act of 1851 ( Oomp. L. § 362) make lull provision for obtaining it.

The legislative power is every where recognized as the proper guardian of all such public rights, as the right of travel upon the highways, and , as having as the proper representative of the public, full power • over the whole subject of laying out, opening, altering and discontinuing highways. And this power they may, so far as they have not been restrained by the Constitution, exercise directly without delegating it to any other tribunal.

Our Constitution has expressly taken from the Legislature the power to “vacate or alter any road laid out by the Commissioners of Highways.” ( Art. b, § 28.) But this is equivalent to an express affirmation of the power to vacate or alter a state road like that here in question, laid, out by the Legislature itself. And there is a manifest propriety and consistency in placing the power to discontinue such roads in the same body which exercises the power to lay out.

The Legislature, then, having complete power to discontinue this road without the intervention of any other officers or board, might, if they saw fit to delegate it to such officers or board, have prescribed in advance such terms, conditions, or special proceedings as they chose to prescribe; or they might have conferred the full power upon such board or officers without any restrictions or conditions. In short it would have have been clearly competent to have authorized the Board of Supervisors in advance in this very instance, to have discontinued this road by the very proceeding which the Board in fact adopted. And if they could have authorized this in advance, they can equally ratify and legalize the act when done, and that without any reference to the question, whether the Board had jurisdiction at the time of doing the act.

It is upon this principle alone, that various taxes for township bounties to soldiers could be sustained, based upon votes of the inhabitants or the action of township officers wholly unauthorized by law at the time of such votes or action; as in the case of Crittenden v. Robertson, 13 Mich., 58 ; Miller v. Grandy, id. 540; People v. Supervisor of Blackman, 14 Mich., 336; People v. Supervisor of Onondaga, 16 id., 254. But in the case of all these taxes the Legislature, as in the present case, - might itself have authorized in advance the proceedings subsequently ratified, or might themselves have done the act in question, without any such proceeding. There are cases in which the act in question, is, in its nature, such as cannot be done directly by the Legislature itself,- but is required to be done, or considered and determined upon, by some tribunal or officer, in which it has been properly enough held that such tribunal or officer must have acquired the jurisdiction to act, before it would be competent for the Legislature by a retroactive statute to cure any defects or irregularities in their action.

But these are cases in which the Legislature could not themselves have done the act in question, or could not in advance have given the jurisdiction to do the act, in the manner in which it has been done. If any cases have gone beyond this in requiring jurisdiction for such a purpose, I see no sound principle upon which they can rest. See Cooley Const. Limitations, 881 to 888, and id. 871.

I think, therefore, the act of March 10, 1869, legalizing the action of the Board in discontinuing the part of the road here in question must have the same complete effect in this case as if it had been previously passed, and authorized in advance the very course of action adopted by the Board; and that it renders the action legal and valid.

I think also that this act is in principle equivalent in its operation to an act of the Legislature directly discontinuing the road by their own authority, which they had a clear right to do.

The circumstance that the act was passed after the institution of this suit, and while it was pending, though it may show an exercise of the legislative power not generally to be commended, has not been recognized by the authorities as sufficient to invalidate the act. See the work of my brother Cooley on Const. Limitations, (p. 381), where the authorities are collected.

In any view, therefore, which I have been able to take of this case, the discontinuance must be affirmed. But as the respondents saw fit to. apply to the Legislature, pending this suit, to cure the errors in the proceedings, and we have sustained the proceedings mainly upon this ground, we think the respondents are not entitled to costs.

The other Justices concurred.