Borgman v. City of Detroit

Montgomery, J. This is a bill filed by complainants to restrain the collection of a tax imposed by the common council of the city of Detroit for the opening of Noble street between Seventh and Eighth. The chief ground of contention, and the only one which we think calls for discussion, is that the proceedings taken to condemn the lands are void because less than 12 jurors sat in the case, and determined the questions of public necessity and the amount of damages. The proceedings were had under Act No. 124, Laws of 1883, as amended. This act provides for the impaneling of a jury which shall be composed of 12 freeholders of the city, who are authorized to determine the two questions mentioned. Reliance is also placed upon section 15 of article 15 of the Constitution, which provides that— “ Private property shall not be taken for public improvements in cities and villages, without the consent of the owner, unless the compensation therefor shall first be determined by a jury of freeholders.” Twelve jurors were impaneled in the condemnation proceedings, the property-owners being represented, and one of the jurors failed to appear. Thereupon counsel representing the property-owners and the city stipulated to proceed with 11 jurors, who found that a public necessity existed [263] for opening the street, and fixed the amount of compensation to be paid the several owners. We think the complainants were not prejudiced by this action, and that there has been a substantial compliance with the statute. The statute contemplates a determination by a jury under the direction of the court. There was undoubted jurisdiction in the court to proceed with the condemnation proceedings. That proceeding was for a determination of the questions of necessity and of compensation for the property; and these were simply questions between the city, on the one hand, and the owner of the property it was seeking to condemn, on the other. In that proceeding the city authorities stood, in a sense, as representatives of the tax-payer, and the tax-payer was in court by these representatives. There is no more reason to question the good faith of the authorities in waiving a. juror than there would be to charge collusion in refusing-to call all the witnesses accessible. The two parties who controlled the proceedings doubtless acted in perfect good faith; the city authorities in behalf of all the public interested, and the property-owners in their behalf. It was competent for the owners of the land to waive their constitutional right to a trial by jury. Cooley, Const. Lim. (6th ed.) 214. The judgment of the court followed the verdict of the jury, and was the final determination contemplated by the statute. Section 11 of the act provides: “ Motions for a new trial or to arrest the proceedings shall be made within two days after the rendition of the verdict, unless further time is allowed by the court; and if no such motion is made, or, being made, is overruled, the court shall enter an order or judgment confirming the verdict of the jury, and such judgment of confirmation, unless reversed by the Supreme Court, shall be final and conclusive as to all persons interested therein.” It would be exceedingly dangerous to allow that any stipulation in the case of these proceedings, by the authori [264] ties, should avoid the whole subsequent tax levy. The rule is invoked that, to make a valid tax, every step provided by the statute must be strictly pursued. But the purpose of the trial is, as before pointed out, to determine the questions of necessity and of compensation to those interested, and in that proceeding there are two safeguards for the protection of the tax-payer: The one is the representation of the tax-payer by the public authorities, and another the provision that the judgment is to be entered, upon the verdict of the jury, by the court. It is not contemplated that this shall be open to future review in a tax proceeding. The subsequent proceedings are based upon the judgment of confirmation. We think there was no jurisdictional infirmity in the proceedings to spread the tax, and the decree of the court below is reversed, with costs. McGrath, C. J., Long and Hooker, JJ., concurred with Montgomery, J.