To review condemnation proceedings instituted under PA 1925, No 352, as amended (CL 1948, § 213.171 et seq. [Stat Ann and Stat Ann 1957 Cum Supp § 8.171 et seq.]), appellants sued out — in the Kalamazoo circuit — certiorari to the State highway commissioner. The writ, following due trial, was dismissed. Appellants are here with the record by application and grant of leave to appeal.
We granted leave for the purpose of reviewing an asserted denial of due process
First: It was represented in the application for leave to appeal that the specially deputized "person," in this case former
"A fair trial, as required by due process, requires not only an absence of actual bias on the part of the judge, but also that no man be a judge in his own case or try cases where he has an interest in the outcome. And every procedure which would offer a possible temptation to the average man as a judge not to hold the balance nice, clear, and true between the State and the accused denies the latter due process of law."
The only well-defined and manifestly necessitous exception to this rule of due process, that of the case or proceeding where there is no judge or officer not equally disqualified to act (see Tumey v. Ohio, supra), has no place in the case before us. Section
"In the event the board or commissioner shall for any reason be disqualified to hear and determine the matter of necessity, as provided in this act, such matter of necessity only shall be heard by a circuit court commissioner of the county in which the property sought to be condemned is located or by a circuit court commissioner acting in such county, as provided by law, and in case any disqualification shall be alleged against any board or commissioner before or during such hearing on necessity, such board or commissioner if they deem such allegation well-founded, may call upon a circuit court commissioner, qualified as hereinbefore provided, to hear the matter and make the determination herein prescribed, and on the day set for hearing a continuance for such purpose to a day certain, may be had if necessary."
Here, assuming for the moment that the specially deputized commissioner (Mr. Mikesell) was disqualified in the name of due process, the requirements of such process easily could have been satisfied by relevant utilization of the very statute under which these proceedings were instituted. As was said in Tumey (pages 522, 523 of report): "We are not embarrassed by such considerations here for there were available in this case other judicial officers who had no disqualification either by reason of the character of their compensation or their relation to the village government."
The foregoing is fully explanatory of the salient reason for grant of leave to appeal in this case. However, and since submission here, we have learned that Mr. Mikesell was not in fact an assistant to the attorney general when the present proceedings were instituted (June 4, 1956) or when the hearing in question was conducted June 26, 1956 (the briefs of
There being no claim of disqualification of Mikesell on any other ground and no evidence of "an interest in the outcome" on his part (from and after the date of said resignation), it is ruled that appellants have failed to sustain their contention that the conduct of this hearing and its result denied them due process. The fact that an attorney has represented a client with respect to identified subject matter in a proceeding which has come to a definite end, does not of itself disqualify him from acting judicially at some later date in a new proceeding involving the same subject matter, even though the same party (his former client) stands before him in the position of an interested litigant. Ethics may or may not suggest his course in such an instance. Be that as it may, ethical considerations, standing alone, do not determine questions of due process.
In arriving at foregoing conclusions we have not overlooked New Products Corp. v. State Highway Commissioner, 352 Mich. 73. There the related — but not presently applicable — question was whether the State highway commissioner and his deputy were disqualified (p 86) "on the ground that by previous conduct he [the commissioner] had committed himself to the particular project in question." We held as against such assigned point that there was no disqualification.
Appellants Brummit were and are term lessees of one of the 2 parcels of involved and adjacent real estate. They conduct a filling and service station business thereon. The balance of such real estate is owned and possessed outright by appellants Lookholder. Such is used in part for dwelling purposes. Prior to institution of these proceedings the commissioner negotiated exclusively with appellants Lookholder. His final offer to them, for the entire premises and interests sought for highway purposes (including the leasehold of appellants Brummit) was $68,000.
The attorney general, recognizing that good-faith negotiation toward acquisition by agreement is a condition precedent to valid condemnation proceedings (State Highway Commissioner v. Ottawa Circuit Judge, 339 Mich. 390), seeks to justify the practice of omitting negotiations with these lessees on grounds of convenience and need for summary acquisitive action, supported by citation of what we think are inapplicable cases from other jurisdictions. The argument is not impressive considering the settled rule in Michigan that a leasehold, and rights derived from a leasehold, constitute "property," for the taking of which just compensation must be made or secured (City of Detroit v. C.H. Little Co., 141 Mich. 637; In
Here the ultimate question is whether the appellant lessees fall within definitive scope of the expression (see section 4 of the act of 1925, as amended; CL 1948, § 213.174 [Stat Ann 1957 Cum Supp § 8.174]) "any person interested in any such property."
The unwarranted assumption that a term lessee, of property sought to be acquired by eminent domain, is not a "person interested" in such property,
Highway condemnation proceedings of necessity are brutal at best. Property and interests in property can be taken, and dispossession speedily effected, on short notice and summary hearing. A great deal of power, easily abused, is thus confided by Constitution and statute to highway commissioners when proceedings are instituted by them "in the official discharge of their duties" (Const , article 13, § 2). Perforce, and when due appeal is made to the courts for review of such proceedings, it is the plain duty of the latter to see that the requirements of constitutionally authorized law are strictly observed as a condition of validity of such reviewed proceedings.
Reversed and remanded for entry of judgment in circuit declaring that the proceedings brought there by certiorari are invalid. No costs.
DETHMERS, C.J., and CARR, KELLY, SMITH, EDWARDS, and VOELKER, JJ., concurred.
KAVANAGH, J., took no part in the decision of this case.
"`Interest, in common speech in connection with land, includes all varieties of titles and rights. When given its plain and natural meaning it comprehends estates in fee, for life and for years, mortgages, liens, easements, attachments, and every kind of claim to land which can form the basis of a property right.' Union Trust Co. v. Reed, 213 Mass. 199, 201 (99 NE 1093)." (Ornatowski v. National Liberty Ins. Co. of America, 290 Mich. 241, 248.)