ROWE v. STATE HIGHWAY COMR., 366 Mich. 151 (1962)

114 N.W.2d 227

Docket No. 88, Calendar No. 49,200.Supreme Court of Michigan.
Decided March 19, 1962.

Page 152

Appeal from Oakland; Adams (Clark J.), J. Submitted January 12, 1962. (Docket No. 88, Calendar No. 49,200.) Decided March 19, 1962.

Certiorari by Lynn Merlin Rowe and others against John C. Mackie, State Highway Commissioner, to review determination of necessity in respect to land to be taken for highway purposes. Writ dismissed on motion. Plaintiffs appeal. Affirmed.

Kenneth H. Hempstead and L.C. Burch, Jr., for plaintiffs.

Frank J. Kelley, Attorney General, Joseph B. Bilitzke, Solicitor General, Louis J. Caruso, Martin L. Leacock, an Laurence A. Price, Assistant Attorneys General, for defendant.

BLACK, J. (for dismissal of appeal).

This case does a stubbornly perverse high court no measure of credit. At none but our threshold can be laid the disastrous responsibility for that quite unnecessary loss of public money — to say nothing of an irreparable injury already done the public interest —

Page 153

Michigan has suffered since the attorney general moved last March to dismiss appellants’ unauthorized appeal from dismissal below of the writ of certiorari they had sued out under section 27 (CL 1948, § 213.197 [Stat Ann 1958 Rev § 8.198]).

For more than 9 months an important highway construction project, that of uniting near Pontiac requisite links of new interstate United States highway I-175, has been held up for want of summary dismissal of this unrighteous appeal or, in lieu thereof, summary determination (under Court Rule No 70, § 5 [1945][1] ) of that which our majority has finally found and attested, that is, an appeal of no reviewable substance (see the separate opinion of Mr. Justice SOURIS).

Our failure to deal promptly with a proceeding calling for summary treatment may have cost the highway fund as much as $242,000. Whatever the final loss-amount may be, it is inexcusably too much (see presently quoted affidavit of Mr. Hill). Furthermore, an integral part of the project undertaking will remain unstarted until, at long last, we pass to decision from indecision by means of currently pregnant opinions. Even then, the continuing fault resting here, such part of the project cannot be completed until next summer or next fall. Little wonder, this case of Rowe being fresh in highway department minds, that the State highway commissioner trumpets grim objection — before the presently assembled constitutional convention — to current proposals that his authority to determine the necessity for taking highway rights-of-way be transferred to judicially supervised courtrooms.

The loss and delay facts to which allusion is made above were communicated to us, through the attorney general, by affidavit of Howard E. Hill,

Page 154

deputy State highway commissioner and managing director of the State highway department, under date of May 25, 1961. The occasion was that of the attorney general’s then temporarily successful appeal for reconsideration of our majority order of April 26, 1961, by which his motion to dismiss appeal was denied.

Mr. Hill’s affidavit stands uncontroverted. He gave careful detail of his estimate — of the cost of impending delay — as being the sum of $242,000. The principal point made in his affidavit was that an existing high-pressure gas main, extending partially across the taken property, “can only be disrupted during an off-peak loading period which is during the months of June, July and August.” Needless to say, the 3 mentioned summer months have come and passed into history. The affidavit proceeds:

“In addition to the described public inconvenience, the State highway department, by reason of the described delay, would be subject to the following costs and charges resulting from the delay:

“(a) Moving in and out charges on the concrete pavement equipment, estimated as $20,000;

“(b) Moving in and out charges on the bridge equipment, estimated as $5,000;

“(c) Moving in and out charges on the grading equipment, estimated as $10,000;

“(d) Signing and barricading costs to keep the public from unprotected and illegal use of partially completed expressway, and to maintain cross-roads, estimated as $5,000;

“(e) Estimated costs to repair erosion, wash-outs and sodding losses in work completed, but which cannot be accepted from the contractors, estimated as $4,000;

“(f) Maintenance cost on county roads required to be used as substitute routes for hauling, borrow and materials, estimated as $3,000;

Page 155

“(g) Contractors’ interest charges on investment in materials, loss on overhead, lost time in rearranging schedules, contingency for scheduled increase in material and labor costs after September, 1961, additional cost of 2 set-ups for batch plants and hauling on county roads in by-passing Baldwin avenue, extended bond and insurance costs, et cetera, estimated as $195,000.

“The total possible and estimated costs of delay is estimated at $242,000.”

Here is the record of our incredible course of yaw and crabsidle. Appellants’ claim of appeal, as of right — from Judge Adams’ order dismissing certiorari — was filed with our clerk March 2, 1961. March 22, 1961, the attorney general filed motion to dismiss appellants’ said appeal, assigning want of application for and grant of leave to appeal per requirement of Court Rule No 60, § 1 (1945). April 26, 1961, by majority vote, the attorney general’s said motion was denied. May 25, 1961, the attorney general moved for reconsideration of our said order denying motion to dismiss appeal. June 28, 1961, by unanimous vote, we ordered that the attorney general’s motion for reconsideration be granted and that an order enter dismissing appellants’ appeal “for want of application and grant of leave.” July 14, 1961, appellants moved “to reconsider the granting of the motion of appellee, John C. Mackie, to dismiss appellants’ appeal.” October 23, 1961, by a seated majority of 4 (Justices EDWARDS, SOURIS, CARR, and DETHMERS),[2] an order was entered vacating our said order of June 28, 1961, and reinstating the above order of April 26, 1961 (by which — as noted above — the attorney general’s motion to dismiss appeal was initially denied).

Page 156

Briefs and appendices were thereafter filed. In pursuance of joint motion and stipulation filed December 20, 1961, the cause — so appealed — was placed on our recent term docket and came to submission January 12, 1962. The joint motion and stipulation is of interest. It recites, pertinently:

“The attorneys of record for all of the parties that are involved in this appeal hereby respectfully move that the Court waive the 30-day notice requirement contained in section 1 of Court Rule No 70 (1945)[3] and permit this case to be placed on the 1962 January term of the Court at the foot of the call. This request is based on the urgency of obtaining a decision from the Court as soon as possible. We believe that the Court, on the basis of the pleadings that are already on file in this cause, is well aware of the fact that vital construction work on an important interstate highway is being held in abeyance pending the outcome of this case.”

I turn from this internal record of our doings to the question raised by the attorney general’s said motion to dismiss appeal. The question, simply stated, is whether appellants’ remedy of review, “under statute, or, in the absence of statute, under common law, is [was] by certiorari, mandamus or other discretionary writ.”[4] Since no one claims that a statute —any statute — confers a right or remedy of review of circuit court orders entered upon certiorari under said section 27, the only remaining question is whether, at common law, appellants’ remedy of review was by certiorari, mandamus or other discretionary writ. The answer to this last question has

Page 157

been, throughout Michigan’s judicial history, a perfectly visible affirmative.

Even since the leading case of Sullivan v. Haug, 82 Mich. 548
(10 LRA 263), was decided in 1890, Michigan lawyers and judges have tested this ultimate question by inquiring whether the legislature has provided “a statutory remedy by appeal.” If not, then “redress against judgments of inferior courts must be by certiorari or mandamus.” (Quotation from Sullivan at page 557.) That such is the test of pertinent appellate remedy appears in a long line of cases following Sullivan, notabl Renaud v. State Court of Mediation and Arbitration, 124 Mich. 648
(51 LRA 458, 83 Am St Rep 346); United States Gypsum Co. v Kent Circuit Judge, 150 Mich. 668 (a condemnation case); Van Leuven v. Ingham Circuit Judge, 166 Mich. 115; J.F. Hartz Co.
v. Lukaszcewski, 200 Mich. 230; Bishop v. Judge of Recorder’s Court, 207 Mich. 537; Chicago, D. C.G.T.J.R. Co. v. Simons, 210 Mich. 418.

In the last cited case the plaintiff condemner claimed an appeal as of right from an order confirming an award in favor of the appellee landowners. The latter moved successfully to dismiss such appeal. Mr. Justice FELLOWS spoke for the unanimous Court (p 420):

“This Court, in consonance with other courts of last resort, has uniformly held that appeals are statutory, do not exist at common law, and that the legislature in its discretion may prescribe in what cases and under what circumstances appeals may be taken. Sullivan v. Haug, 82 Mich. 548 (10 LRA 263) Messenger v. Teagan, 106 Mich. 654; Kundinger v. City of Saginaw, 59 Mich. 355; J.F. Hartz Co. v. Lukaszcewski, 200 Mich. 230. Plaintiff must, therefore, look to the statute and to the statute alone for its right to be here heard.”

Page 158

There is no new or novel learning here. All that is required is judicial willingness to enforce our appellate rules with due uniformity so that the designed equal protection thereof is provided for all having business in this Court. It is not right that 1 appellant, here and there amongst hundreds of rule-compliant others,[5] may evade the work and the risk of due application for leave to appeal by appealing bodaciously without leave. This is especially so when the proceedings brought into circuit upon certiorari are special and summary in character.[6]

The foregoing merely confirms the general rule that circuit court certiorari proceedings are reviewable in this Court by appeal upon leave. 11 Callaghan’s Michigan Pleading and Practice, § 92.45, p 803, states as follows under the heading “Review in Supreme Court of certiorari judgment”:

“If a certiorari proceeding is instituted in a circuit

Page 159

court, the judgment therein is ordinarily reviewable in the Supreme Court only by an appeal by leave of court in the nature of mandamus.”

And see In re Fitch Drain No. 129, 346 Mich. 81, 95, 96. On that occasion, by 4-to-3 vote of the Court, it was held generally that Court Rule No 60 (1945) requires leave to appeal from certiorari proceedings in circuit court. The dissenting Justices found (see pages 91 through 95 of report) that certain provisions of the drain code permitted an “inference” that the legislature intended to grant remedy of review, as of right, from the drain proceedings in question. Whatever may be said of our divided opinions in the Fitch Case, there is no known statute from which like succor by “inference” may be drawn for this unauthorized appeal of Rowe. At least none has been cited or mentioned to date.

To recapitulate: Ever since the legislatively provided power of the State highway commissioner, to make determinations of necessity, was constitutionally upheld by this Court (Fitzsimons Galvin, Inc., v. Rogers, 243 Mich. 649; In re Dillman, 255 Mich. 152), the exclusive remedy of review of such determinations has been by circuit court certiorari and thereafter by application for leave to appeal to this Court. I would hold so again for this case of Rowe.

I record again my continuant vote to dismiss this errant appeal; an appeal claimed of right from an order dismissing circuit court certiorari proceedings which themselves, as finally found by today’s majority, were statutorily defective. Doing so, I note of due fairness that present Justice OTIS M. SMITH had no part in upholding appellants’ said appeal, and that present Justice ADAMS was the attorney general who pleaded with this Court to dismiss what should have been dismissed — on his said motion — last April.

Page 160

SOURIS, J.

Plaintiffs sought to review by certiorari[1] in the Oakland county circuit court a determination[2] made by the defendant State highway commissioner, after hearing, that it was necessary to take their property for highway purposes. The defendant did not file a return to the writ of certiorari but, instead, moved to dismiss the writ on jurisdictional grounds. The commissioner’s motion to dismiss was supported by 3 affidavits from which it appears (no counteraffidavits or other evidence having been produced or offered by plaintiffs[3] ) that the statutory procedure for review by certiorari was substantially disregarded by plaintiffs in the following respects:

1. No written notice of intention to remove the cause to circuit court by certiorari was given to the defendant;[4]

2. No bond was executed and served upon defendant by plaintiffs;[5]

3. The defendant was not paid the fee required to be paid for making a return to the certiorari;[6] and

4. Application for the writ of certiorari was not made within 10 days after determination of necessity.[7]

Briefs were filed with the court, following which the trial judge delivered a bench opinion in which he concluded that the appeal by certiorari was not timely brought. An order of dismissal was filed from which plaintiffs appeal.

Plaintiffs rely solely upon the claim that application for review by certiorari was made by them as soon as they discovered the commissioner had made

Page 161

his determination of necessity, well within 10 days of their discovery thereof; that defendant prevented their strict compliance with the statutory requirement (CL 1948, § 213.197
[Stat Ann 1958 Rev § 8.198]) that application for certiorari be made within 10 days after determination of necessity by withholding notice of the fact of such determination until after expiration of the statutory 10-day appeal period; and that the cited statute should be construed to permit application for certiorari to be filed within 10 days after notice that a determination of necessity has been made.

We do not consider it necessary to pass upon the claim made by plaintiffs. Even if we were to assume its validity, the order of dismissal would have to be affirmed for plaintiffs’ failure to comply with the several statutory requirements summarized above and upon which defendant’s motion to dismiss was also based. Defendant’s averments with reference thereto, and the affidavits in support thereof, were not denied by plaintiffs and were, therefore, admitted for purposes of the motion to dismiss.

We do not condone defendant’s failure to give plaintiffs timely notice of his determination of necessity, without which notice plaintiffs’ statutory right to review such determination is rendered ineffectual. We note, however, that the statute’s constitutionality in the absence of a requirement for service of notice of such determinations was not challenged in this appeal. We also note, and here record, that the attorney general advised this Court during oral argument that the State highway commissioner, notwithstanding the absence of statutory requirement therefor, now undertakes to serve notice of such determinations of necessity as soon as they are made.

Affirmed. No costs.

Page 162

CARR, KELLY, and OTIS M. SMITH, JJ., concurred with SOURIS, J.

DETHMERS, C.J., concurred in result.

KAVANAGH, J. (concurring).

On June 28, 1961, I joined in the unanimous vote ordering that the attorney general’s motion for reconsideration be granted and that an order enter dismissing appellants’ appeal “for want of application and grant of leave.”

On October 23, 1961, I dissented in the order reconsidering the granting of the motion to dismiss appellants’ appeal and vacating our order of June 28, 1961. Nevertheless, a majority of this Court so ordered and we are now bound to consider this matter as a full-fledged appeal.

I concur in the reasoning of Justice SOURIS in his opinion and affirm the dismissal of the action for the reasons stated in his opinion.

ADAMS, J., did not sit.