I cannot concur in the opinion of Mr. Chief Justice SHARPE.
The case at bar is not one of mere consequential damages to an abutting owner by a grade separation, for it involved taking some of defendant's property. *Page 424
Section 2, art. 13, Const. of 1908, 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."
Act No. 114, Pub. Acts 1925 (1 Comp. Laws 1929, § 4514 etseq.), as amended by Act No. 335, Pub. Acts 1931 (Comp. Laws Supp. 1940, § 4514 et seq., Stat. Ann. § 9.1141 et seq.), does not obviate the showing of necessity. That act, in case of desired separation of grades, requires the purpose and plans to be submitted to the Michigan public utilities commission and for a hearing thereon at which the railroad company and the highway authorities only are afforded a hearing. Upon such hearing, if it is found that the separation of grades is necessary for public convenience, welfare and safety, the commission may authorize, permit and provide for such separation of grades.
Section 9 of the act provides for compensation to the owners of property taken and damages incident to the grade separation in accordance with Act No. 92, Pub. Acts 1893, as amended.*
The necessity for the improvement and for taking private property for such purpose are questions for the jury and may not be exercised by the public utilities commission, and I do not understand the act purports to do any such thing.
In Hendershott v. Rogers, 237 Mich. 338, 350, we said:
"The State highway commissioner is authorized in the first instance to determine necessity and compensation, but at some stage of the proceeding an aggrieved landowner must be given his right to 'his day in court.' *Page 425
"That the proviso of section 2, art. 13, dispenses with a jury or the commissioners and permits in highway cases the commissioner to hear and determine the questions takes nothing from section 1, art. 13. He is bound by it as are all other condemning parties. If our present Constitution had been silent on the question of necessity, if we still retained the provision of our Constitution of 1835, necessity would have been determined, practically, as it was in the case at bar. But under our present Constitution, an ex parte determination of necessity is as fruitless as would be an ex parte determination of compensation.
"That this court held, long ago, that necessity was, in this State, a judicial, not a legislative, question, was not that the courts sought additional labors and powers, but that obedience to the mandate of a sovereign people expressed in their Constitution was imperative. That the State highway commissioner may be hindered by this constitutional provision in his efforts to correct and improve public highways is a matter for the people themselves. But it should be observed that the changes in our later Constitutions, from that of 1835 (above set forth), made by the people, were for the very purpose of increasing the rights of the landowner whose property it is proposed to take, and to the extent that the landowner's rights were increased, to that extent those who seek to take his property are hindered.
"It follows that Act No. 352, Pub. Acts 1925,* in so far as it denies to the landowner due process of law as regards the question of necessity, fails to accord to him on that question, notice, hearing, an opportunity to defend, is unconstitutional and void."
The trial court was in error in denying the landowner the right to try the issue of necessity.
The judgment as to the appealing defendant should be reversed and a rehearing granted on the issue of necessity. Defendant should recover costs.
* 1 Comp. Laws 1929, §§ 4481-4513 (Stat. Ann. §§ 9.1101-9.1133). — REPORTER.
* See 1 Comp. Laws 1929, § 3884 et seq. (Stat. Ann. § 8.171 etSeq.). — REPORTER. *Page 426