Opinion
Docket No. 95, Calendar No. 42,556.
Decided April 3, 1944.
Appeal from Macomb; George (Fred W.), J., presiding. Submitted January 11, 1944. (Docket No. 95, Calendar No. 42,556.) Decided April 3, 1944.
Petition by City of Detroit for the condemnation of certain lands for an airport. From denial of its motion to dismiss, the Township of Warren appeals. Affirmed.
Paul E. Krause, Corporation Counsel, Bert R. Sogge, Assistant Corporation Counsel, and B.V. Nunneley, for petitioner.
Charles A. Retzlaff ( Kenneth J. McCallum, of counsel), for Township of Warren.
This appeal is from denial in the circuit court of a motion by Warren township to dismiss the petition of the city of Detroit, Wayne county, for condemnation of private property for the purpose of constructing and operating an airport site in Warren township, Macomb county, Michigan. Our decision handed down herewith in Warren Township School District No. 7 v. City of Detroit and Agar v. City of Detroit, ante, 460, is related to the same subject matter. This petition recites that it is filed under the law as provided in "1 Comp. Laws 1929, §§ 3763-3783, as amended by Act No. 296, Pub. Acts 1941 (Comp. Laws Supp. 1943, §§ 3768-3770, Stat. Ann. and Stat. Ann. 1943 Cum. Supp. §§ 8.11- 8.31); as provided by * * * 1 Comp. Laws 1929, § 4829, as amended by Act No. 344, Pub. Acts 1939, and Act No. 333, Pub. Acts 1941 (Comp. Laws Supp. 1943, § 4829, Stat. Ann. 1943 Cum. Supp. § 10.61); and the charter of the city of Detroit; and other acts incidental thereto relative to condemnation proceedings." The township, after being served with an order to show cause, entered its special appearance in the condemnation proceedings for the purpose of making this motion to dismiss. The motion was heard and decided on the record consisting of the petition, the township's motion, and the city's answer thereto. For reasons hereinafter noted we hold that denial of motion to dismiss must be affirmed.
The reasons first assigned by the township in support of its motion are that plaintiff's (the city of Detroit) petition is fatally defective because "the proposed airport does not involve a matter of public health or safety," that it "proposes to vacate or alter public roads and highways which have previously been established," and that "it contemplates the establishment of an airport for private use and not for public use," in violation of the Fourteenth amendment of the Federal Constitution. We know of no constitutional provision which restricts the taking of private property for public use, as proposed in the instant case, to only such purposes as have to do with public health or public safety. Instead the field is broadened to include public welfare or public necessity. The right to exercise the power of eminent domain in the instant case is not limited by the restrictive provisions in article 8, § 22, of the Constitution (1908). The power of eminent domain is inherent in State sovereignty. City of Detroit v. Oakland Circuit Judge, 237 Mich. 446; Fitzsimons Galvin, Inc., v. Rogers, 243 Mich. 649. Subject to constitutional restrictions, it is entirely under control of the legislature. Loomis v. Hartz, 165 Mich. 662. The Michigan legislature has delegated the right to exercise that power for the purpose of establishing airports to cities, villages, townships and counties of this State. 1 Comp. Laws 1929, § 4829, as amended. The petition, under its allegations, which must be accepted as true in passing upon the township's motion to dismiss, expressly confines the condemnation proceedings to the taking of privately owned property. It does not seek the vacation or alteration of public roads or highways. Nor does plaintiff's petition seek to condemn the township's drains, sewers or water mains in the designated territory. And clearly, under the allegations of plaintiff's petition, the contemplated airport is not one for private use, but instead the "improvement is for the use and benefit of the public;" and "the different pieces or parcels of real estate * * * are proposed to be taken for said public improvement, to-wit: an airport site for use and benefit of the public."
The township also urges in support of its motion to dismiss that granting the relief sought in the condemnation proceedings would be in "direct contravention and violation" of a township ordinance under the provisions of which "the use or occupancy of any lands or premises for an airport * * * is prohibited" in that portion of Warren township where the proposed airport would be located. This contention cannot be sustained. Such a township ordinance is unenforceable and void for the reason that it is in direct conflict with the following State statute: "The State administrative board or the legislative body of any city or village or township in this State is hereby authorized to acquire, own, control, lease, equip, improve, operate and regulate landing fields, seaplane harbors and airports for aeroplane and other aircraft either within or without the limits of said cities and villages," 1 Comp. Laws 1929, § 4829, as amended. See, also, People v. McDaniel, 303 Mich. 90. Because a contrary contention is urged in another of the township's reasons in support of its motion, it may be noted that the above-quoted statute does not limit the power of a city to condemn lands for the purpose specified to such lands as are within the county in which the city is located.
The township further assigns as reasons in support of its motion to dismiss that plaintiff failed to obtain the appointment of a guardian ad litem upon the filing of its petition, and also that plaintiff failed to comply with the soldiers' and sailors' relief act of 1940 as amended (54 Stat. at L. 1181, § 201). As to the appointment of a guardian ad litem, the circuit judge in his opinion properly stated: "It is the opinion of the court that since no minor, insane or incompetent persons were named as defendants, that appointment of a guardian ad litem as of the present time is a compliance with the act." (1 Comp. Laws 1929, § 3790 [Stat. Ann. § 8.47]). As to the other of the two reasons just above noted, it is sufficient to observe that the Federal enactment for the protection of "a person in military service," only provides: "In the discretion of the court in which it (any action) is pending; (the court may) on its own motion, and shall, on application to it by such person or some person in his behalf" stay the proceedings, unless in the opinion of the court the ability of the protected party to prosecute or defend the suit "is not materially affected by reason of his military service." The statute does not require dismissal of an action, but at most only a stay under certain conditions. So far as disclosed by the record, no motion to stay has been before the trial court.
Numerous other reasons are assigned by the township in support of its motion; among them are the following: (1) that plaintiff failed to join all parties interested, including the Federal government which advanced funds for the construction of public improvements in the territory sought to be condemned, and holders of revenue bonds issued incident to the construction of drains, sewers and water mains extending into the proposed site; (2) that taking the property sought to be condemned will deprive the township and the county of Macomb of taxable property of great value; (3) that this condemnation proceeding was instituted in violation of the provisions of the Detroit city charter, which provides that condemnation proceedings to secure private property for a public improvement in the municipality shall be prosecuted in the recorder's court of that city; and (4) that the statute under which this proceeding is brought is void because the title does not expressly authorize petitioner to condemn private property for the purpose of constructing an airport. Each of the foregoing and other reasons urged by appellant in support of its motion to dismiss have been given careful consideration, but our conclusion is that each of them is without merit.
The order of the trial court denying the township's motion to dismiss is affirmed and the case remanded for further proceedings. Plaintiff will have costs of this appeal against Warren township.
STARR, WIEST, BUTZEL, BUSHNELL, SHARPE, and BOYLES, JJ., concurred. REID, J., did not sit.