In recognition of the fact that an enormous need of the hour was highway construction, and realizing the necessity for a thoroughly workable law which would permit the speedy accomplishment of desired results, the legislature, in 1925, enacted Act No. 352, entitled "An act to provide for the purchase and condemnation of private property for public highway purposes." The law provides adequate means for judicial determination of compensation to be paid the owner, but when the State is concerned, it confers upon the State highway commissioner the final and unquestionable determination of the necessity for the improvement for which the land is desired. Plaintiff, whose property was desired for the purpose of straightening a State highway, that it might be made more safe for public travel, refused to sell his land for such purpose. Upon the State highway commissioner attempting to condemn under the provisions of the law in question, he sought the aid of the court to prevent proceedings under it, claiming that it was unconstitutional and void. That question is now before us.
I do not agree with my Brother, Justice CLARK, that the legislature is denied the right by our Constitution to declare necessary a State public improvement, *Page 352 or that section 1, art. 13, thereof makes the necessity for taking private property for public use a matter to be adjudicated by some sort of tribunal, invested with authority to determine the propriety of the State to exercise one of its inherent rights. It is conceded by my Brother that under both of our Constitutions, prior to the adoption of the present one, the act under consideration would have been constitutional and valid. What he contends works havoc with it is the injecting into section 1, art. 13, the words "the necessity therefor being first determined," which he insists places compensation and necessity on the same footing. No attention is paid to the claim of counsel for the plaintiff that the act is in conflict with the 5th Amendment to the Federal Constitution, containing the provision "nor shall private property be taken for public use without just compensation," since such amendment is but a restriction on the Federal government, and not on the State. 20 C. J. p. 532, and cases cited in the note. I will therefore discuss what effect, if any, the section of our Constitution referred to has upon the law under consideration.
Compensation. Because of the due-process clause in the 14th Amendment to the Federal Constitution, determination of compensation is always a judicial matter, involving the right of notice and opportunity to be heard.
"Wherever land is taken under the power of eminent domain it is necessary that the owner should have notice of the proceedings and an opportunity to appear and protect his rights, and to be heard on the question of compensation. Where the landowner is denied a hearing upon the question of the right to compensation and the amount thereof, this is a takingof his property without due process of law, within theconstitutional prohibition. Notice is essential to the jurisdiction, and failure to give it renders the proceedings void. Even in the absence of any express requirement in thestatute under which the proceedings are *Page 353 had, the property owners are entitled to notice and an opportunity to be heard." 20 C. J. pp. 927-929.
"A statute authorizing the taking of private property for public use must not only provide for the payment of compensation but also make provision for a certain and adequate remedy by which the compensation may be determined and by which the owner may procure the compensation. The legislature may provide for the assessment of compensation by a jury, a commission, or other body or tribunal, but a provision for anex parte proceeding is insufficient." 20 C. J. pp. 649-651.
"The mode of procedure prescribed by statute must not destroy nor substantially impair the inherent right to compensation. Accordingly, the statute must provide a sufficient means or tribunal for determining the compensation, etc." 20 C. J. p. 875.
"The exercise of the power of eminent domain is subject to the constitutional right of the owner of the land taken to just compensation. This right is now expressly guaranteed by the constitutions of practically all the States, and even in the absence of such provisions in the organic law the right to compensation has been recognized by the courts as a fundamental right founded on natural justice, although there are statements in some decisions which would indicate an opinion to the contrary. Aside from this the constitutional inhibition againstdeprivation of property without due process of law requires the payment of compensation where private property is taken for public use." 20 C. J. pp. 643, 644, and cases cited.
"All that is essential is that in some appropriate way, before some properly constituted tribunal, inquiry shall be made as to the amount of compensation, and when this has been provided there is that due process of law which is required by Federal Constitution. Bauman v. Ross, 167 U.S. 548, 593 (17 Sup. Ct. 966)." Backus v. Union Depot Co., 169 U.S. 557, 569 (18 Sup. Ct. 445).
It is also held that if adequate provision for compensation is provided by a law, that authority may be *Page 354 granted to take possession pending inquiry as to the amount to be paid. Cherokee Nation v. Railway Co., 135 U.S. 641. (10 Sup. Ct. 965); Sweet v. Rechel, 159 U.S. 380 (16 Sup. Ct. 43).
No condemnation law would be valid, therefore, that did not provide some means for a judicial determination as to compensation. This is not only true in Michigan, but in all of the other States as well. Not necessarily because of any State constitutional limitation, but in any event because of the due-process clause of the Federal Constitution. It is not true in Michigan, however, because of section 1, art. 13, of the Constitution, which is the false premise upon which the opinion of my Brother is based.
Necessity. Determination of necessity, on the other hand, isnever a judicial matter, unless made so by the State Constitution. Without State constitutional limitation, it is always for the legislature, or its delegated agent to ascertain. Backus v. Union Depot Co., supra; Mississippi RumRiver Boom Co. v. Patterson, 98 U.S. 403, 406; United States v.Jones, 109 U.S. 513 (3 Sup. Ct. 346); Cherokee Nation v.Railway Co., supra; Rindge Co. v. County of Los Angeles,262 U.S. 700 (43 Sup. Ct. 689); Bragg v. Weaver, 251 U.S. 57 (40 Sup. Ct. 62); Joslin Manfg. Co. v. City of Providence,262 U.S. 668 (43 Sup. Ct. 684). See, also, Monongahela NavigationCo. v. United States, 148 U.S. 312, 327 (13 Sup. Ct. 622);Seaboard Air Line R. Co. v. United States, 261 U.S. 299 (43 Sup. Ct. 354); Vogelstein Co. v. United States, 262 U.S. 337 (43 Sup. Ct. 564); United States v. Collieries,262 U.S. 341 (43 Sup. Ct. 565); Hays v. Port of Seattle, 251 U.S. 233 (40 Sup. Ct. 125); Cuyahoga River Power Co. v. City of Akron,240 U.S. 462 (36 Sup. Ct. 402) Brand v. Railroad Co.,238 U.S. 586 (35 Sup. Ct. 846) Long Island Water Supply Co. v. Cityof Brooklyn, 166 U.S. 685, 694 (17 Sup. Ct. 718). *Page 355
"The legislature, in providing for the power of eminent domain, may directly determine the necessity for appropriating private property for a particular improvement or public use, and it may select the exact location of the improvement. In such a case, it is well settled that the utility of the proposed improvement, the extent of the public necessity for its construction, the expediency of constructing it, the suitableness of the location selected and the consequent necessity of taking the land selected for its site, are all questions exclusively for the legislature to determine, and the courts have no power to interfere, or to substitute their own views for these of the representatives of the people." 10 R. C. L. p. 183, § 158, and a large number of cases cited in note.
"The expediency of constructing a particular public improvement and the extent of the public necessity therefore are clearly not judicial questions." Id. § 159.
"As an owner of land has no right to a judicial hearing on the necessity and expediency of a public improvement which will result in the taking of his land, or on the necessity and expediency of taking his land for the improvement, he has no constitutional right to notice of the proceedings in which it is decided to construct the improvement and its location is fixed, except in such States as, by express constitutionalprovision, make the necessity of taking a judicial question."Id. § 160.
"In the absence of some constitutional or statutory provision to the contrary, where the use for which property is sought to be taken under the power of eminent domain is public, the necessity and expediency of exercising the power are political and not judicial questions. The legislative determination is conclusive and not reviewable by the courts. This power is unqualified, other than that by the necessity of providing that compensation shall be made, and when the power has been delegated it is a subject of legislative discretion to determine what prudential regulations shall be established to secure a discreet and judicious exercise of the authority." 20 C. J. p. 624.
"In the absence of a constitutional provision on the *Page 356 subject, the mode of exercising the right of eminent domain is within the discretion of the legislature, untrammeled by any limitation except that the purpose is a public one, and that just compensation be paid or tendered to the owner of the property taken, and the power to prescribe rules of procedure may be delegated. It is not necessary for the legislature, in the exercise of the right of eminent domain, to invest the proceedings with the forms or substance of judicial process; the appropriation of the property is an act of public administration, and the form and manner of its performance is such as the legislature shall in its discretion prescribe." 20 C. J. p. 874.
"The procedure by which property is to be condemned and compensation assessed is not ordinarily prescribed by constitutional provisions. This matter is usually left to the discretion of the legislature." 20 C. J. p. 875.
Thus we find, in the absence of State constitutional limitation or restriction, that, in all eminent domain proceedings, the determination of compensation is judicial, and the determination of necessity is legislative.
What is the situation in our State? Until 1859, under our State Constitution of 1850, both necessity and compensation, in all cases, were matters for judicial determination. In 1859 this limitation was changed by amendment, so as to exclude those proceedings wherein highway commissioners were concerned, and as thus amended it persisted up to the time of the adoption of the Constitution of 1908, into which it was injected by the use of substantially the same language, and it has so continued to the present time. Constitution of 1850, art. 18, § 2; Constitution of 1908, art. 13, § 2.
Therefore, in this State, excepting as to highway commissioners, necessity and compensation have always been, and now are, subjects for judicial determination, but only because of the constitutional provisions to which reference has just been made, and the due-process *Page 357 clause of the Federal Constitution. Had not our Constitutions contained these limitations, necessity would have remained a matter for the legislature, although compensation would still have been a matter for judicial determination. But, as before suggested, compensation is not judicial for the erroneous reason which my Brother CLARK gives therefor, viz., because of section 1, art. 13, of our present Constitution, and its predecessors in our former ones. This section has never been declared or held to be a limitation in any way on the sovereign right of the exercise of eminent domain. As pointed out heretofore, compensation is always, in all jurisdictions, a matter for judicial determination in some manner, because of the due-process clause of the Federal Constitution.
If, therefore, section 1 of art. 13 did not, in and ofitself, make the question of compensation one to be determined by a judicial tribunal, it follows that injecting into it by the Constitutional Convention of 1907 and 1908 a like reference as to necessity did not thereby make necessity a matter to be so determined.
Bearing in mind at all times that eminent domain exists in the State without recognition by the Constitution at all, in what respect does section 1 of art. 13 affect, restrict, or limit it? It is true it is limited by section 2, which provides that both necessity and just compensation must be ascertained by a jury of twelve freeholders, or by not less than three commissioners, excepting as to highway or road commissioners. But this act has to do with road commissioners, and is therefore within the exception. If affected then by the Constitution at all, it is by section 1, which does nothing more than limit the right to take private property to a prior determination of the necessity, and the making or securing of just compensation in such manner as shall be prescribed by law. The law prescribing the manner, however, must of *Page 358 course be one which does not conflict with the due-process clause of the Federal Constitution. The law under consideration meets this requirement. It places determination of necessity in the hands of the State highway commissioner, which offends neither the due-process clause of the Federal Constitution nor any provision of the State Constitution. It provides for a hearing on the question of compensation, which is all the due-process clause insists upon.
Section 1 is no sort of constitutional inhibition of eminent domain. It does nothing more than to expressly leave to the legislature the right to prescribe a law for the manner of determining necessity and compensation. But my Brother asserts that it "is all inclusive, has no exception, and imposes both of said restrictions of necessity and compensation in every case where it is sought to take private property for public use."
If this section imposes "both the restrictions of necessity and compensation," as suggested by my Brother, it imposes nothing that did not exist without it, and that, too, without the necessity of anywhere giving it expression. The whole idea of eminent domain presupposes a necessity for the improvement for which private property is desired, as well as the natural consequence of just compensation being paid.
Neither is section 1 "all inclusive," nor can it be said that it "has no exception." Section 2 expressly provides for the tribunal which is to determine both necessity and compensation in most cases, but makes an exception where the State is concerned and where the action is that of commissioners of highways or road commissioners in the official discharge of their duties. Section 1 of article 13 must be read and construed with section 2, and it may not be declared "all inclusive" or independent of it. See Horton v. City of GrandHaven, 24 Mich. 465; Campau v. City of Detroit, *Page 359 14 Mich. 283; People v. Village of Brighton, 20 Mich. 69.
In 12 C. J. p. 700, the rule is stated that
"The fundamental purpose in construing a constitutional provision is to ascertain and give effect to the intent of the framers and of the people who adopted it. The court should therefore constantly keep in mind the object sought to be accomplished by its adoption, and the evils, if any, sought to be prevented or remedied."
If it had been the intent of the framers of our present Constitution to make all condemnation proceedings subject to notice and hearing on the question of necessity and compensation it would have been so expressly provided, and the exception with reference to highway commissioners contained in section 2 would have been eliminated. But this exception was retained, and for the same reason that it was first injected in 1859, viz., to permit highway commissioners to condemn private property for highway purposes without the necessity of submitting to a jury or a commission the question of necessity therefor. The retention of this exception, contained in section 2, distinctly and unmistakably indicates the intention of the Constitutional Convention of 1907 and 1908 to make no change. Clearly, then, section 1 creates no limitation or prohibition, but, on the contrary, permits the legislature, subject to the restrictions contained in section 2, and the due-process clause, to provide the means and the manner of the exercise of the right of eminent domain.
The insertion by the Constitutional Convention into section 1 of article 13 of the words "without the necessity therefor being first determined" is convincing to my Brother of its intention "to make necessity like compensation a judicial question in respect of which there should be due process of law, notice thereof to the landowner, hearing," etc. Why and how this *Page 360 sentence became incorporated in our Constitution is, of course, not certain. I have examined with care the Journals and Debates of the Convention, but I am unable to find that any proposal was ever offered or introduced by any member aiming at any change in section 1. Neither does the Convention offer any explanation for the change in its submission and address to the people of the proposed Constitution. It was adopted without debate, and its verbiage must have been inspired, either in the committee on eminent domain (to which committee article 18 of the old Constitution was referred in toto) or in the committee on phraseology, which is the more probable. However that may be, it is a substitute for and designed to take the place of sections 9 and 15 of article 15 of the 1850 Constitution. See Debates of Const. Conv. 1907-1908, p. 1439.
My Brother further concludes:
"If the makers of our late Constitution intended no change in that regard they would not have added the words. * * * They added the words to make necessity, like compensation, a judicial question."
This conclusion of the Justice could not have been arrived at from anything said or done in the Constitutional Convention. There was no demand from any source to further limit the power of eminent domain. Road building was then in its infancy, but its impending necessity on a large scale must have been generally recognized, as well as the fact that officials ought not to be unnecessarily hampered in their work of construction. It is to me easily accounted that the words were inserted because necessity being as much a prerequisite of eminent domain as was compensation, it was considered that both, if either, should be mentioned. Had there been any idea in the mind of any member of the Convention that this section of the Constitution, in itself, would make *Page 361 the question of necessity always a matter for trial, and had it been desired to put the subject of necessity in the same class with that of compensation, there would certainly have been proposals to this effect offered to the Convention, and, without doubt, discussion and debate upon the subject would have followed. Making the matter of necessity for a State highway a question to be determined by a court or some similar tribunal, with its appeals and delays, was, in my opinion, farthest from the minds of the members of the Convention.
For the reasons above stated, I am of the opinion that the act under consideration is not in conflict with any provision of the Constitution, and that it is valid.
The decree should be affirmed, but, as the question involved is a public one, no costs should be awarded.
FELLOWS, J., concurred with SNOW, J.