*1 STATE COMMISSIONv HIGHWAY VANDERKLOOT op
Opinion the Court Discretion—Legis- 1. Administrative Law —Constitutional Law — Delegation. lative prohibition against Legislature delegating The constitutional its lawmaking powers prevent conferring power does not from law; conferring of discretion in the administration of a such a power of discretion is not unconstitutional where the exercise guided by adequate the discretion is controlled and standards authorizing it. statute Necessity. 2. Eminent Doman — right necessity, to eminent domain is founded on law of the taking necessity; the not but need be an absolute it is sufficient reasonably public it is for convenience or advan- tage. Necessity—Determination.
3. Eminent Doman —
private
provision
public taking
property,
The constitutional
for
regarding
which does not have
statement
the
manner
determined,
necessity
taking
gives
to
which
to
Legislature
power
delegate
determine
or to
(Const
2).
art
§
Necessity—Determination—Delegation—
4. Eminent
Doman —
Standards.
granting
Highway
The statute
to the State
Commission the
discretionary power
right
to invoke the
of eminent domain to
acquire property
highway purposes
providing
right
challenge
owner of the
taken the
the neces-
sity
taking
grounds
on
of fraud or
abuse
discretion
[4-6, 8,
[7]
[1]
[2,
Validity
3]
1 Am Jur
16 Am
without
26 Am
9]
26 Am Jur
Jur
of statute
prescribing a
Jur
2d,
References
2d,
Administrative Law 117 et
Constitutional
Eminent
2d,
ordinance
Eminent Domain 113 et
rule of
Domain
Points
Law §
action,
vesting
§
Headnotes
ALR 400.
et.seq.
etseq.
seq.
seq.
officials
y
Comm Vanderkloot
Legislature
compel
was intended
the commission to
determine the
the basis of all
applicable
thus does not
constitute an
factors
unconstitu-
Legislative power
delegation
seq.).
tional
213.361 et
*2
Necessity—Delegation—-Constitutional
5. Eminent Domain —
Law.
possibility
Highway
might
The
that the
Commission
abuse
discretionary power
property by
to take
its
eminent domain
legislative delegation
does not make unconstitutional
power
presumption against
there is a
because
this occur-
rence,
provided
sufficient standards for its exercise are
aggrieved
judicial
parties
exercise is available to
review of its
(MCLA
seq.).
213.361 et
op
High-
6. Eminent Domain —Protection
Natural
Resources —
.
ways —Constitutional
Law.
granting
Highway
The statute
to the State
Commission discretion
right
acquire property
to invoke the
of eminent domain to
for
highway purposes
not
unconstitutional because it fails to
provide
protection
of the state’s natural
resources as
constitution,
required by
since the constitutional
protection provision
require
natural
resources
does not
Legislature
problems
every
to deal with environmental
(Const
52).
eminent domain statute
art
by Targonski,
J.
Dissent
Delegation—Due
Law —
Process.
delegation
power
body
A
to an administrative
which does not
process
only
requirements
contain definite standards
due
meets
procedures
if
established for the exercise of the
furnish
adequate safeguards
by
to those who are affected
the adminis-
trative action.
Highways—Necessity—Determination—Stat-
8. Eminent Domain —
utory Delegation
Highway
—State
Commission.
granting
Highway
The statute
to the State
Commission discretion
necessity
invoking
right
to determine the
of eminent
acquire property
highway purposes provides
domain to
adequate safeguards
protect
neither a deBnite standard nor
property
arbitrary
by
the individual
from
owner
action
property
carry
commission because the
owner must
the burden
proving
finding
commission abused its discretion in
acquire
property
that was
when there is no
yardstick employed by
to the
evidence as
the commission
(MCLA
reaching
seq.).
its conclusion
213.361 et
43 Mich
Highways—Statement
Necessity
9. Eminent Domain —
—Evi-
dence —Burden
Proof.
requiring
property
prove
that a
statute
owner
that the State
has
Commission
abused its
discretion in
taking
necessity
the owner’s
eminent domain
purposes places
highway
unjust
an unfair and
upon
burden
who must attack the
the owner
commission’s statement of
speciSc
when he has not been notiñed of what
need
property;
proof
there is for the
of his
the burden of
position
should be
the commission which is in a better
prove
seq.).
the asserted
213.361 et
Oakland,
Appeal
from
William
Beer,
John
J.
Submitted Division May
at Lansing.
(Docket
12394.)
No.
Decided September 27, 1972.
appeal granted,
Leave to
Frank General, Robert A. Attorney Derengoski, General, Caruso, J. Solicitor and Louis Steinborn, Stanley D. and Robert L. Krause. As- General, Attorney sistants for plaintiff. Vanderkloot, Young Reid, & for defendants. Warren, Travis, Amicus Curiae: Nayer & Bur- Roche). goyne (by John M. J.,
Before: J. H. Gillis, P. and T. M. Burns Targonski,* JJ. Plaintiff,
J. H. P. Gillis, High- J. * judge, sitting assign Appeals by Former circuit on the Court of pursuant ment to Const art as amended in 1968. v Vanderkloot Comm op Opinion the Court Commission, acting pursuant to the statutory way in 1966 PA it amended granted authority seq.; seq.), et 213.361 et MSA 8.261[1] and benefit use necessary it deemed improve segment High- a of to widen and public US-24, running in and highway a access way free Bloomfield, of Township Oakland through order this Michigan. accomplish In County, plaintiff found improvement, simple fee to certain real estate the title in take route, including of portion prop- a along said herein. defendants belonging to erty with 6 and of Act Acting accordance §§ on proceedings condemnation plaintiff commenced of County 1971 in the circuit court May petition jury and demand for by filing Oakland trial, taking statement estimated a notice taking, a declaration of statement compensation, hearing petition. an order for necessity,1 25, 1971, filed a for a defendants motion May On necessity, pursuant of the determination review (MCLA 213.368; 8.261[8]), §8, MSA Act 295 been asserting plaintiff in said motion that had of abuse of discretion guilty The claim property. their following allegations: on the was based " * * * US-24) (1) abutting (Highway Telegraph Road property adequately serves the subject * * * traveling public .” and interest " * * * (2) to take petitioner seeks * * * swamp having increasingly rare or even is a area *4 * * * ecological .” unique characteristics " * * * (3) take seeks to property petitioner * * * * * * problems unneces- [presents] construction increasing the of the unreasonably cost sarily improvement public.” proposed Necessity”. appendix for of "Statement See App 56
Defendants filed motion for also accelerated judgment plaintiffs dismissal of the asking pe- upon grounds, tition the pertinent various one to this appeal being as follows: legal "said capacity commission lacks to sue for the reason that Act 213.361 et the reasons that Public of Acts 1966 [MCLA seq.; 8.261(1)] MSA is unconstitutional (a) prescribes said statute no reasona- bly defined standards for exercise of the discretion (b) required of the commission under said act and duties the commission are in conflict with provi- IV, sion of Article Section Constitu- tion 1963.” 15th, days June, On 18th and 21st 1971, a hearing before was held the Oakland County Cir- cuit Court at which was considered defendants’ motion judgment. for accelerated The court gave opinion its from the agreeing bench with defend- ants’ contention that the property high- seq.; 213.361 et way purposes act' MSA seq.) et was unconstitutional. The court 8.261[1] way explanation stated: "The law and the statutes which have been invoked question over the lands challenged being here are unconstitutional because land owner there are no standards for upon. Now, reliance have it seems to this judge is there a fatal you unconstitutional error when say that a challenge the right citizen has the days within ten agaiust property determination made his on necessity ground It abuse discretion. is judge difficult for this you to follow how can chal- lenge you abuse discretion if have never had an opportunity to you nothing be heard or know about what employed. why standards were And I that is feel these laws here discussed are unconstitutional as depriving process the citizen here involved with due Certainly of citizen who is a nothing saying law. served private challenge can owner *5 Highway Comm v Vanderkloot 61 Opinion op the Court ground on the of discretion abuse under these kinds of circumstances.” 14, 1971, the July
On Oakland County Circuit granting Court entered an order respondents’ mo- judgment. tion for This accelerated order stated in pertinent part: * * *
"1. The court finds that Act PA of 1966 is unconstitutional process stated within the for the reason that said act denies due respondents in that there are no standards act, specifically by reference, either authority petitioner to define the of the to determine taking private property for highway act, purposes pursuant exercise the respondents to said so that right of review for abuse discretion * * * granted . under section of said act * * * "2. The court further finds that Act 295 of PA of 1966 is for the unconstitutional reason that the act provide protection fails to for the of the natural re- pollution, impairment sources state from required IV, destruction as under Article Section 52 of * * * Michigan Constitution .”
This appeal, instituted Commission, followed.
Addressing ourselves first to the process2 due challenge of unconstitutionality regarding PA 295 as amended 213.361 et seq.; MSA seq.), et the basic issue that presents itself 8.261[1] is: What does the process require due guaranty when there occurs a granting administrative regarding invoking of the power of eminent domain? It impossible has become Legislature directly deal with the host of details complex involved in the varied and situations legislates, and, which it consequently, it has in- creasingly found it them to leave * * * * * * person deprived property, "No shall be due without process of law.” Const art 17.§ Opinion Court of administrative reasonable discretion officers. It important prohibition understand delegation legislature’s against ing power of its lawmak- powers mean that does not cannot confer a *6 in administration
of discretion 2d, Law, Am Jur law itself. 1 Administrative p 107, Shores, § v St Clair 344 906. Osius Mich (1956). bestowing 693, 698 It is said that not become an such discretion does unconstitu- legislative delegation of a function tional exercise is controlled dards where its guided by adequate stan- authorizing 1 2d, in the it. Am Jur statute pp 107, Law, § 906-907. On the reposes hand, a statute which effect other absolute, an unregulated, and undefined discretion in agency subjects rights men’s an administrative by by itself be determined not the law but instead officers, the let or leave of administrative thus passing legitimate delegation beyond the bounds of legislative power. understanding
It is fundamental to an of this recognize right of case to is founded Eminent that the eminent domain necessity. the law of 26 Am Jur p object
Domain, §2, 639. If the can be practically effected in some manner other well appropriating private by property, than then a guise taking eminent cannot occur under taking, however, domain. The absolute need not be an necessity; it is sufficient that it is reasona- advantage. bly public necessary convenience or Highways, pp 99, CJS, §§ 26, 946, 39 1035. Each pre- the two most recent Constitutions ceding present constitution contained eminent provisions required the neces- domain which sity private property for the use or public by a benefit of the ascertained either jury by of not of 12 freeholders or a commission appointed by a court less than commissioners Highway Comm v Vanderkloot (Const 1908, 13, 2; art 1850, 18, record. Const art § However, §2.) there is no statement in the 1963 regarding the Constitution manner which neces- sity is to be determined. Chamberlin v Detroit Co, (1968). Edison Mich It simply provides: "Private shall not be taken for use just compensation being
without therefor first made or prescribed Compensation secured shall be a manner law. proceedings determined in a court of rec- Const ord.” art It is point well-settled to of being conceded provision defendants places such a the deter- mination Legislature, which issue it delegate determine itself Rogers, Hendershott v to do so. 341- CJS, (1927); Highways, 946; 26 p Am *7 Domain, 111, 112, Jur Eminent pp 767-769; §§ Weaver, v Bragg 57, 58; 251 63; US 40 S Ct 64 (1919). case, L Ed 137 In the instant the (1966 Michigan Legislature adopted has a statute PA as amended seq.; et 213.361 MSA [MCLA 8.261(1) et seq.]) granting Highway the State Commission the discretionary invoking the right of eminent acquire domain to certain property act, however, highway purposes. provides a means which an aggrieved property can challenge owner the commission’s determina- tion of necessity: days required by "Within 10 after the notice section person claiming given, abuse
has been a or fraud discretion, taking in both, necessity the the all or any part property purposes of the stated in the petition, the having justiciable interest involved, property may file in the same court a motion cause, asking necessity that such be reviewed. He App 56 give days’ notice of the hearing shall at least to all parcel. in same Such parties the hearing interested pf filing days be held within shall motion. determine hearing the court shall At not whether or fraud or abuse of there been either has in necessity. Appeal findings from the regard to such taken as other civil cases.” the court PA supplied.) 8.261(8). 213.368; (Emphasis MSA 8; MCLA that Act 295 It is defendants’ contention allows to determine commission highway guide standards providing adequate without determination, discretionary and, exercise of that hence, It is argued that unconstitutional. cannot demonstrate abuse of property owner dis- pass on such abuse when cretion or the courts which considerations finding is to base its are left unde- Commission fined. research, appears
After doubtful extensive has been confronted court of 'record be- good with issue. Nor can we particular fore this argument simply "hang our hat” conscience proffered the writer of the amicus curiae brief (MCLA 213.361; 8.261[1], MSA §§1 213.365; 8.261[5]) sufficient MCLA MSA set forth test. We view standards to meet constitutional fact, containing, no standards such sections all, of the kinds of merely at but statements may be interests which property or acquired under the act. The oí encompasses a different consideration. completely has, however, princi-
Research
disclosed various
*8
degrees varying
ples
support
which tend
requiring that a standard or rule of prescribed action be in a conferring statute or ordinance discretionary au- thority upon an agency administrative was sufficiently with, complied following legislative and the specifica- among tions are which those have been held to state a sufficiently definite standard for administrative action specific !necessity.,’ ’need,’'necessary expedi- or fields: ent,’ 'reasonable,’ 'appropriate,’ 'just reasonable,’ and equitable,’ 'sufficient,’ 'fair and profits,’ 'excessive 'un- duly complicated corporate inequitable structures and voting power,’ 'unfit,’ distributions of 'fit’ 'suitable,’ or 'unsuitable,’ 'competency, ability and integrity,’ illumi- nating 'safe, pure, oil which is and affords a satisfactory cause,’ light,’ 'worthy order,’ 'decency good 'sub- stantial,’ residents,’ 'undesirable 'undesirable business practices,’ 'unprofessional conduct,’ 'false, fraudulent, or misleading advertising,’ 'improper conduct,’ 'miscon- duct,’ injurious 'offensive because of and obnoxious noise, vibrations, smoke, gas,’ factors, and other 'injuri- ” substances,’ ous 'danger peace safety.’ or 1 Am 2d, Law, 119, Jur pp Administrative 927-928. requirement
"A that an act shall 'in interest’ is a sufficient criterion and standard where the subject matter of the intelligible statute renders this an ’public interest, and not a limitless criterion. Similarly, convenience, necessity’ 'public convenience and advantage’ have been held sufficient standards.” Am Law, 120, Jur p The relaxation specific rule of guidelines has been apparent most in those sitúa- *9 Opinion of the Court impracticable difficult
tions it is or where to lay comprehensive a rule down definite without de- necessary stroying flexibility enable admin- carry legislative istrative out will, officials i.e., upon discretion turns where the the question personal of or relates to the fitness administration police of a and is regulation, protect health, morals, the public safety, general wel- Law, fare. Am Jur p There to be no fixed or appears inflexible rule of law which the issue of of the taking Department Transpor may be measured. of Myers, tation v 1970). (Fla, 237 So 2d depend must determination and vary with particular the facts in each case. A factor ex of importance treme one case not even abe consideration in another situation. Some of the factors which have been found bear upon the pf improvement issue of necessity highway are set CJS, pp forth Highways, 44-45: locating "In highways, highways state or on which funds part state state-wide are used which are treated of as a system, the primary to be interest considered large, is of the state at good, particular not the interest of locality or any private comparative routes, possible interest. As costs two between considered, of construction are to be themselves, are not but factor. Direct- considered, ness is also to be conclusive. Other factors is not necessarily but which, application statutes, governing have properly been held considered locating highway improvements comparative in of are cost maintenance, safety, particular relation of the road construction under whose roads of the consideration to the other system, adaptability per- state-wide to the route, using probable travel, sons of traffic amount volume accommodated, future, as accommodation of traffic, present as operation well convenience v Comm Vanderkloot traffic, large territory possible, as the service of securing through trunk line state, of main routes comparative topographic difficulties, and construction served, population center communities and cus- tomary line travel.”3 *10 that
Nor can we conceive the above list of means an exhaustive factors that prop- erly determining be considered in the necessity of improvement. an Condemnation statutes must be construed such manner as to effectuate their legislative intent, purpose, defeat and not lead not Indiana & Electric Co results. absurd Miller, v 19 16 Michigan Consoli- (1969); Mich App Muzeck, dated Gas Co v (1966). 4 App Mich 502 It appear would the intent of the Legislature, by the placing standard Act was the compel highway commission to ascertain the existence nonexistence of all bearing factors Detroit, thereon. Florka v (1963). delegation power is no "There unconstitutional legislature subject
where the reasonably case, acts a as as is far but, practicable from the of the necessities duty bringing leaves to executive officials pointed statute, about result out by where policy is laid down a sufficient standard is estab- statute, lished by sufficiently or where a statute indi- legislative purpose cates merely leaves 2d, agency.” administrative details some 1 Am Jur Law, 111, pp Administrative 911-912. § purpose statute, requirements "The it imposes, particular provision may and the context of a show that the broad not standard establishes does require comprehensive construction as the words permit vague alone and is so as to not and indefinite For factors considered (as opposed improvement) highways, establishment to the see 39 CJS, Highways, pp § 947-949. Mich Opinion Court complete
amount 2d, to a absence of a standard.” 1 Am Jur Law, 118, p Administrative After careful consideration we have come to view the situation before us as an appropriate foregoing instance for the principles to apply. Con- sequently, we conclude the standard of neces- as set in Act sity forth 213.368; §8 8.261[8]) MSA adequate is an one in particular its context,4 and, therefore, is not violative of due process of law. The possibility that the highway might commission exercise its of discretion in an arbitrary discriminatory manner defiance of the standard of necessity is not grounds objection delegation. to the Am Jur Law, 112, p 913. The presump- against action, and, tion is such if it actually occurs, a remedy provided is expressly §8, under namely, court relief for abuse of discretion.5
We now focus our consideration on the second *11 ground upon which the trial court found Act 295 unconstitutional: " * * * provide the Act fails to protection for the * * * the natural resources of the required State as IV, under Article Section 52 Michigan of the Constitu- * * * of 1963
tion .”
Article 52 of 1963 Michigan Constitution provides as follows:
"The
development
conservation and
of the natural
adequate
The conclusion reached is that
in this case
standards
Hence,
by
were fixed.
to
authority
decisions cited
defendants based on the failure
prescribe granting
legislative
standards whatever
point.
in
are not
Such was the situation in Osins v St Clair
(1956).
Shores,
T. M. concurred.
APPENDIX present "Whereas, conditions in Oakland County, Township of Bloomfield in the State of Michigan, improvement High- necessitate the way through Township US-24 of Bloomfield plans showing improve-
"Whereas, detailed such prepared ment have been and are now file in Michigan Highway the Office of the State Commis- sion,
"Now, authority therefore, virtue of the vested Commission hereby law, it is declared and determined that *12 necessary improve Highway it is US-24 through Township Bloomfield, Oakland County, Michigan, extending from the intersection Mich Targonski, Dissent J. Road, Lone Pine Highway US-24 and northerly US-24,
along point to a of ending Highway approx- north of Shallow imately feet Brook Drive, improvement necessary and said is for the use and public; benefit of the
"It is further declared and determined that it is necessary acquire and take the fee simple or lesser property, any estate real other property, rights parcels and certain access to certain of land County, Michigan, located Oakland and more fully described in the Declaration of Taking at- hereto, tached without the consent of the owners thereof, purpose improving High- said described, US-24 way as above parcels said are necessary for the use and benefit public, and that good faith written offer purchase made, parcels said of land has been all in accord- requirements ance with the of Act Public Acts Michigan, amended, the State of as Act Public of 1964. Acts "Wherefore, the Attorney General in and for the State of hereby directed to institute proceedings against condemnation the owners and other parties in interest private said improving US-24 Highway hereinbefore described.
"In foregoing, witness of the I have hereunto set my 21, 1971, hand on April Lansing, at Michigan.
"Michigan State Commission Highway "By /&/ Henrik E. Stafseth_
"State Director” (dissenting). J. agreement There is Targonski, majority with the the modern trend allows delega- rather standards when there is a authority tion of to an body. administrative How- ever, I feel that when definite standards are not *13 Highway Comm v Vanderkloot by Dissent J. Targonski, out, adequate safeguards must spelled present be fulfill requirements process. in order the due Davis, in This rule has been stated Treatise, §2.00, Supp, pp Law 40-41 as fol- lows: longer "The focus should no be exclusively on stan-
dards; totality it protections against should be on the arbitrariness, including safeguards both and standards. longer key words; statutory The should no it should protections provide, be the the in administrators fact irrespective of say say. what the statutes fail judicial inquiries thus focus tory istrative standards.” should shift from statu- safeguards standards to administrative and admin- This theory achieved the force of in law Warren 307, 314; v Marion County, 222 Or 353 P2d (1960), when that accepted Court it following manner: important "The not consideration is whether delegating power expresses standards,
statute whether but procedure established for the exercise of adequate safeguards furnishes to those who by (Emphasis are affected original.) the administrative action.” in Although standard be found in delegation, this I feel adequate that there are no safeguards to protect the individual from arbitrary It action. must be that person’s remembered right peaceful to the of his enjoyment property is one the fundamental in this rights country and cannot be taken away unfettered discretion Legislature. case, however,
In the instant the individuals are discretion, only subject not legislative they to this carry also must in proving burden that petitioner finding abused its App 56 Targonski, Dissent J. acquire an individual’s property when as to yardstick
there is no evidence employed agency’s conclusion. reaching the question, 213.366; The statute MCLA MSA 8.261(6)(d) part provides petition shall acquisition contain: [*] [*] [*] *14 "(b) purpose A statement of for which the property is being acquired, things, which the pertinent any and other matter of may pray and other or further relief to petitioner by is entitled law.” purpose provision obvious of this is to state the why property must be taken. The rule appears to be that: statute, prescribing "Where the the essentials of a statement of report, expressly require
the does not road, necessity utility the unnecessary.” such a statement is CJS, Highways, p case, In the instant the require statute does a statement necessity this must be complied However, reading with. of the statement purpose case, in the instant reveals that it merely acquisition states the reasons for in conclusionary give terms. In order proper notice to the prop- owner, I erty feel it must state underlying specific facts and reasons why particular piece property acquired must public good. be
The injustice procedure of this compounded is the fact the burden proving an abuse of placed upon is the individual owner. In Kalamazoo v Road Commissioners Dosca, (1970), Mich Court this prevailing stated the rule to be: condemning "A necessity by declaration of au- Comm v Vanderkloot Targonski, J. Dissent prima thority evidence of facie serves as upon prop- consequently it incumbent makes contrary.” erty owner to show puts unjust procedure an unfair and bur- This property owner. The individual den expenditure put money of time to a considerable prevent property. of his Furthermore, must attack the he statement of has not been notified of when he what property. specific is for his This burden need there petitioner, placed who has stated should necessity and who is in the better there is a carry position the burden. opinion
Therefore, of the lower I feel that grounds on the stated should be affirmed but court in this dissent.