City of Muskegon v. Slater , 379 Mich. 466 ( 1967 )

Kelly, J.

The city of Muskegon adopted an urban renewal plan and, to implement said plan, filed its petition for condemnation, including a parcel owned by defendants John D. and Esther H. Shamel.

A two-week trial ended in a jury verdict for plaintiff as to the question of necessity and an award of $20,500 damages in favor of defendants Shamel. Defendants filed their proposed taxed bill of costs which included an attorney’s fee of $1,250 and the city of Muskegon filed objections, citing the statutory limitation.¹

The trial court granted the requested attorney fee, stating:

“It is my opinion that this statute is an illegal and unlawful interference with the power of the court to assess reasonable costs, and further, that it is in direct violation of the rights of the defendant to receive just compensation for the taking of his property.”

The Court of Appeals² reversed the trial court, holding (1) that no statutory authority existed for the court’s grant of $1,250 attorney fee and, according to our holding in Detroit Edison Company v. Janosz (1957), 350 Mich 606, such authority was necessary; and (2) that in a case involving the Michigan condemnation statutes the United States Supreme Court held:

“Attorneys’ fees and expenses are not embraced within just compensation for land taken by eminent domain.”³

Defendants’ and appellants’ claim that the legislature lacks the power to regulate the amount of costs is not supported by cases in Michigan or any other jurisdiction. In fact, authority is to the contrary.⁴

The Michigan legislature’s right to regulate the items and amounts allowable as costs was recognized and acknowledged in our promulgated court rules, GCB, 1963, 526.1.

Defendants and appellants, add an additional issue in their ¿ppeal to this Court, claiming the 1963 Constitution took away from the legislature its previous right to determine when, and as to what amount, the court could assess costs.

The 1908 Constitution, under article 13, entitled “Eminent Domain,” devoted five sections to this subject. The 1963 Constitution, under article 10, entitled “Property,” devoted one of its six sections, namely section 2, to eminent domain, as follows:

“Private property shall not be taken for public use without just compensation therefor being first made or secured in a manner prescribed by law. Compensation shall be determined in proceedings in a court of record.”

It is defendants’ contention that the last sentence, “Compensation shall be determined in proceedings in a court of record,” placed the entire question, including costs, in the hands of the court and took it away from the legislature.

A review, however, of the proceedings and reports of the constitutional convention which wrote the 1963 Constitution discloses no merit in this contention.

In third reading before the convention, Delegate Lawrence offered (2 Constitutional Convention Record (1961), p 3151):

“Mr. President and members of the convention, this amendment consists of 7 words, 7 words only,⁵ and it is designed solely for the purpose of protecting the people of the State in giving them the security of knowing that if their property is taken by eminent domain that they will be heard in a court. * * *

“It leaves the method of doing this entirely up to the legislature to do, but does give the people the right to know that they will have their property rights determined in a court rather than before a board or bureau.”

The convention clearly rejected any change in the meaning of “just compensation” or any expansion of the power of the court, other than insuring court supervision of condemnation proceedings.

We agree with the Court of Appeals’ conclusion that:

“Since no statutory authority exists for the taxation of the $1,250 attorney fee, the order of the circuit judge is reversed and the cause remanded for the entry of an order taxing $25 for the attorney fee.”

No costs, a constitutional question being involved.

Dethmers, C.J., and Souris, O’Hara, and Brennan, JJ., concurred with Kelly, J.

1 CL 1948, §213.37 (Stat Aim 1958 Rev §8.27) as follows: “Officers, jurors and witnesses in any proceeding under this act shall be entitled to receive from the petitioner the same fees and compensation as are provided by law for similar services in an ordinary action at law in the circuit courts, and it shall be lawful for the judge in any ease to order the payment by the petitioner to any respondent of such reasonable attorney fee as he may deem just, not exceeding $25, which may be taxed with the costs.”

2 2 Mich App 235.

3 Dohany v. Rogers (1930), 281 US 362, 368 (50 S Ct 299, 74 L ed 904, 68 ALR 434).

4 20 Am Jut 2d, Costs, §5, p8; 26 ALR 2d, Annotation: Attorney’s fees as -within statute imposing upon condemner liability for “expenses,” “costs,” and the like, pp 1295-1301.

5 Referring to proposed amendment “except in a court of record and” to be inserted after the word use in the first sentence of section 2 above quoted.