The times. (Owosso, Mich.) 1882-1897, 1890-05-02

City Of owcsso vs.. RichAsld.
The decision of the Supreme Court in the
case of Richfeld was drawn by Justice Grant
and filed on the 25th ult. 1t reads as fol-
lows:
This is certiorari to the Circuit Court
for the County of Shiawassee to determine
the validity of certain proceedings taken be-
fore justice OF the peace for the purpose of
establishing and opening street and con-
demning the lands of defendant and others
for the use thereof.
The Common Council passed a resolution
declaring that they deemed the establishing
and opening OF the street necessary public
Improvement, describing the proposed street
by metes and bounds and fixing the time
when the Council would apply to Newton
Baldwin, one of the justices of the peace.
for the drawing Of jury to ascertain the
necessity for using the property so as afore-
said intended to be taken for such improve
ment and to ascertain the damages to be paid
TO the owners" The resolution further pro-
Vlded for publication of the resolution. APP
plication was made to said justice, Sept
goth, 1889, the day fixed by the resolnti0a
Nine persons owned the different parcels OF
land proposed to be taken, RichGeld owning
lots &c" and ''F." The marshall of the City
Richfield was a nonresident and could not
be found. The marshall returned that fact
and that he made service ''by posting notice
on premises"
The marshal was directed and sworn by
the justice to summon "a disinterested per-
sons, residing in the city of OwOsso and
qualified to serve as jurors wherefrom to
form jury. jury was selected and were
sworn to faithfully, impartialv and to the
best of their ability discharge the duty
imposed upon them i'm ascertaining the
necessity for the taking of private property
for public use in the intended public
improvement, deemed necessary by the
common council of the city of OwOssO, ia
the resolution adopted August 10, 1889.
The jury made their report laying out the
street and awarding damages, which report
was confirmed by the justice. Rchfield
thereupon appealed to the circuit court in
accordance with the provisions of the char
ter and that court affirmed the proceedings.
The proceedings were absolutely void for
various reasons.
1. Art. IS, Sec. 2, of the constitution
provides that 'When private property il
taken for the use and benefit of the public,
the necessity for using such property and
the just compensation to be made therefor
shall he ascertained by jury of twelve
freeholders residing in the vicinity of the
property, appointed by court of record as
shall be prescribed by law"
The charter of the city of Owosso, Sec.
1O9, provides that the jury shall be cOmpos-
ed of inhabitants of the city qualified to
serve as jurors in courts of record i'm this
state. Jurors are not required to be free
holders 1t is of no consequence that the
common council by their resolution deter
mined that it was necessary to take the
property for public use. Under our cOnsti-
tuition that fact is left solely to the deter
mination of jury. This provision of the
charter is therefore repugnant to the cOnsti.
tuition and void.
9. The charter, Sec. ia, provides that
the jury shall ascertain the necessity for
using the property intended to be taken. If
it be intended to take any for such improve
ment, and the damages to be paid, etc. The
oath administered by the justice to the
jurors was substantially in the words of this
provision of the statute The provision OF
the charter of the City Of Grand Rapids and
the oath administered to the jury i'm the case
Powers appeal, 30 Mich 504, appear to
have been the same as those i'm the case at
bar. 1t was there held that the oath was
the measure and limit of the legal action of
the jury and that no legislation could be
sustained which did not plainly require this
question to be left to the jury.
Even If it could be maintained that the
oath administered to the jury was in compli-
ance with the constitution, still we must
hold that it was extra judicial because it wa,
not such as was required by the provision of
the charter.
3. The statute requires that the marshal
shall make his return at least six days before
the day appointed for the hearing. The
return was not made within this time and
the justice in consequence had no jurisdic-
ton to proceed. In these proceedings all
the provisions of the statute must be strictly
followed or jurisdiction fails
4. The statute providing substituted
service in case the owner cannot be found
was not complied with The return of the
marshal does not show that he posted the
notice upon the land of Richfield Posting
notice upon any other land embraced i'm the
proposed street would not be such as the
statute eontemplates. The object of this
substituted service Is that it may be seen by
some agent or friend of the owner and that
in this way he may receive actual notice.
8. The proceedings were fatally defective
in that the resolution which is i'm reality the
petition presented to the justice, did not
contain the separate descriptions of the land
proposed to be taken, nor the names of the
owners.
C. q NJ. l.. S. R'y Co. VS.. Sanford, 23
Mich. AIS.
The judgment of the court below must
bereversed and the proceedings quashed.
The other justices concurred.
A person suffering from poorly acting
liver should take Laxador and be happy