Gen'l Development Corp. v. Detroit , 322 Mich. 495 ( 1948 )

This is an action to enjoin defendant from proceeding with a condemnation suit. Plaintiff appeals from an order dismissing its bill of complaint for failure to state a cause of action or grounds for equitable relief.

In considering this appeal, all well-pleaded facts in plaintiff's bill must be taken as true. On that basis the facts, as condensed in plaintiff's brief, must be considered to be as follows:

1. Defendant brought the condemnation proceedings to acquire land for the purpose of clearing the slums therefrom, under authority of Act No. 18, Pub. Acts 1933 (Ex. Sess.), as amended (Comp. Laws Supp. 1940, § 2607-1 et seq., Stat. Ann. and Stat. Ann. 1947 Cum. Supp. § 5.3011 et seq.).

2. Under authority of that act defendant acquired title to other lands in 1941 and 1943 for the avowed purpose of slum clearance and construction of low-cost public housing; thereafter defendant operated the properties for profit, with but little clearance of substandard dwellings and no construction of new dwellings thereon.

3. Defendant seeks to acquire the land here involved for the same purpose. Because of an acute housing shortage, clearance of slums therefrom is impossible now or within a reasonable time.

4. It is defendant's intention, as soon as conditions permit, to clear the slums from the land and thereafter sell it at its then market value to private persons.

Plaintiff's bill alleges that Act No. 250, Pub. Acts 1941 (Comp. Laws Supp. 1945, § 10135-201 et seq., Stat. Ann. 1947 Cum. Supp. § 5.3058[1] et seq.), provides for acquisition of slum areas and disposal thereof by cities, upon certain conditions, to private corporations for slum clearance and development and that included in such conditions is the provision that the city must be reimbursed by the corporation for all sums expended in the acquisition of the lands; that the provisions of the act are exclusive and its conditions mandatory; that a city may not acquire land for slum clearance under any other act and sell the same to private interests for less than the full cost to the city of its acquisition; that plaintiff, as a taxpayer, is fearful that the unlawful action contemplated by the defendant in this connection will result in the imposition upon plaintiff of an illegal tax.

Whether the use for which land is sought to be acquired by condemnation is a public one is a judicial question. PortageTownship Board of Health v. Van Hoesen, 87 Mich. 533 (14 L.R.A. 114); Detroit International Bridge Co. v. American SeedCo., 249 Mich. 289; Cleveland v. City of Detroit, ante, 172.

At the instance of a taxpayer who would be adversely affected thereby, unlawful action by a municipality or action about to be taken by it, which is lawful on its face but intended solely for an unlawful purpose, may be prevented by injunction. A petitioner need not wait until such action has been taken and the resultant damage to him accomplished. Bates v. City of Hastings,145 Mich. 574; Lake Superior District Power Co. v. City ofBessemer, 288 Mich. 455; Wolgamood v. Village ofConstantine, 292 Mich. 222; Barkley v. City of Detroit,314 Mich. 404.

That a city's acquisition of land by condemnation for slum clearance is a taking for public use and that it is permissible under Act No. 18, Pub. Acts 1933 (Ex. Sess.), as amended, has been held and the constitutionality in that respect of that statute upheld in the cases of In re Brewster Street HousingSite, 291 Mich. 313, and In re Edward J. Jeffries Homes HousingProject, 306 Mich. 638.

That the lands acquired by defendant in 1941 and 1943 for slum clearance purposes have not yet been cleared and that the property here sought to be acquired cannot be so cleared immediately because of recent war conditions and the present acute housing shortage or for other temporary reasons, and that the city will, therefore, use the property temporarily for other purposes, such as leasing to tenants, are matters properly to be addressed to the jury of freeholders as an aid in their determination of the question of the necessity of defendant's acquiring the land in question for the intended public purpose; they are not such facts as give rise to a question for judicial determination or which necessitate, or even permit, a holding that, as a matter of law, defendant's acquisition of the land is not a public necessity or that it is not for a public purpose. This was fully considered and determined in the Jeffries Case,supra. Cited by plaintiff in this connection is the case ofMinnesota Canal Power Co. v. Fall Lake Boom Co., 127 Minn. 23 (148 N.W. 561), which is not applicable here for the reason that under Minnesota law the question of necessity is one for the court.

We find in Act No. 250, Pub. Acts 1941, no suggestion of a legislative intent to make its provisions for the acquisition of land by condemnation for slum clearance exclusive or to deprive cities of powers already conferred upon them by Act No. 18, Pub. Acts 1933 (Ex. Sess.), as amended. Condemnation proceedings may be brought under either act for the respective purposes therein expressed. See Union School District of the City of Jackson v.Starr Commonwealth for Boys, ante, 165; Cleveland v. City ofDetroit, supra.

Plaintiff's bill alleges that defendant brought the condemnation proceedings to acquire land for the purpose of slum clearance. Such proceedings for that purpose are proper and lawful under our holdings in the Brewster andJeffries Cases, supra. No reason appears from plaintiff's bill why proceedings for such lawful purpose should be enjoined. Plaintiff makes no claim that the imposition of a tax upon it and other taxpayers for payment of the expense of acquiring land, under Act No. 18, Pub. Acts 1933 (Ex. Sess.), as amended, for slum clearance, would be unlawful. How plaintiff's rights as a taxpayer could thereafter be prejudiced or unlawfully affected, upon clearance of the slums, by the subsequent sale of such land with a resultant abatement of a portion of the cost of the project, plaintiff's bill does not indicate. At all events, whether the defendant may lawfully sell or dispose of land acquired by condemnation under Act No. 18, Pub. Acts 1933 (Ex. Sess.), as amended, to private persons after clearance of the slums therefrom need not now be determined, inasmuch as such action on the part of defendant is not here sought to be enjoined.

The order dismissing plaintiff's bill of complaint is affirmed, with costs to defendant.

BUSHNELL, C.J., and SHARPE, BOYLES, REID, NORTH, BUTZEL, and CARR, JJ., concurred.