Kress v. Hammond

Long, J. The petitioner is county drain commissioner [373] for the county of Jackson. Proceedings were instituted by him in September, 1891, as county drain commissioner, upon a proper application, for the construction of a drain in the township of Spring Arbor, of that county. The proceedings were regularly conducted and continued to the impaneling of a jury of 12 freeholders upon petition to the probate court of that county. This jury were unable to agree, and were discharged therefor by the probate court. Efforts were thereupon made to continue the proceedings by impaneling a new jury. Mr. Tupper, a person interested in the drain,'applied to the judge of probate to order the preparation of a new jury list, and for the striking of a new jury. The county drain commissioner made a like application, and asked to have all proceedings, after the filing of his petition for the appointment of commissioners, set aside, and to proceed anew from that point. These applications were denied by the probate judge upon the sole ground that he was of the opinion that the statute gave him no authority to proceed further in the matter. This application is for mandamus to compel the judge of probate of Jackson county to cause to be prepared a new jury list and impanel a new jury in that proceeding. The facts are conceded by the answer. We think the probate judge in error in his construcción of this statute. Section 2, art. 18, of the Constitution, 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 residing in the vicinity of such property, or by not less than three commissioners, appointed by a court of record, as shall be prescribed by law: Provided, the foregoing provision shall in no case be construed to apply to the action of commissioners of [374] highways in the official discharge of their duty as highway commissioners.” The proceedings for the construction of the drain were had under the drain law of 1885 (Act No. 227), as amended by Act No. 187, Laws of 1891. This act provides for the impaneling of a jury of 12 freeholders in a court of record upon the application of any person whose estate or interest is to be affected by the proceedings. This act amends only certain sections of the act of 1885. Section 12, chap. 3, of the act (3 How. Stat. § 1740c 6), is not affected or amended by the act of 1891. That section provides: “In case the special commissioners or jury shall decide such drain to be unnecessary, they shall so state in their return, and the drain commissioner shall thereupon dismiss the proceedings at the cost of the applicants, and no further application for the same object shall be-entertained within one year thereafter.” It is apparent from this provision of the statute that the proceedings were to be ended only when the special commissioners or jury should decide the drain to be unnecessary, and not upon a disagreement of the jury.. When the special commissioners or jury should find the drain to be unnecessary, no application could be made or entertained for the period of one year thereafter. There is no provision of the statute as to what the proceedings shall be upon a disagreement of the jury; but from the provisions of section 12, above quoted, we are satisfied that it was the intent of the Legislature that, upon the disagreement of the commissioners or jury, proceedings might at once be had, upon the application of the drain commissioner and parties interested in lands-to be affected, for the impaneling and striking of a new jury. It is when the commissioners or jury determine the drain unnecessary that no further application for the [375] same object shall be entertained within one year thereafter, and it would be a wholly unnecessary proceeding for the parties, where the jury disagreed, to commence de novo. The statute must be construed as giving to the court the power, upon the request of the drain commissioner and any party interested in the lands to be taken, to impanel and strike a new jury in the same proceeding. The writ must issue as prayed. McGrath, Grant, and Montgomery, JJ., concurred with Long, J.