
    Jones v. Village of Maumee.
    
      Municipal corporations — Eminent domain — Streets and alleys —Necessity and nature of appropriation within discretion of municipality — Courts will not interfere with exercise of discretion, when.
    
    The General Assembly having delegated to municipalities the authority to appropriate private property for street purposes, the necessity of the appropriation, and the location and extent of the property to be taken, rest in the discretion of the municipal authorities, and will not be interfered with by the courts, in the absence of fraud, bad faith, or abuse of discretion.
    Eminent Domain, 20 C. J. § 112.
    (Decided June 22, 1925.)
    Appeal: Court of Appeals for Lucas county.
    
      Messrs. Kirkbride, McCabe é Boesel, for plaintiff.
    
      Mr. Paul W. Alexander, village solicitor, for defendant.
   Richards, J.

The plaintiff seeks to enjoin the village from appropriating for street purposes certain real estate owned by him in the village of Maumee. In the court of common pleas the defendant objected to the introduction of any evidence, claiming that the amended petition did not state a cause of action. That court sustained the objection and dismissed the petition, from which decree the plaintiff appealed.

In this court the same objection was made by the defendant to the introduction of evidence under the amended petition. In order to determine the sufficiency of that pleading it will be necessary to examine the material allegations which it contains.

The plaintiff avers that he owns" certain village lots in Maumee, located at the end of Wall street in that village, and that among these lots is water lot No. 1, lying along the Maumee river. He avers that Wall street has never been open to the public and has never had any care or supervision by the village, and that the council, on May 24, 1923, passed a resolution for the condemnation and appropriation for street purposes of the easterly 33 feet of the above-named lot, and that proceedings have been instituted and are now pending in the probate court of Lucas county for a jury to assess the amount of damages due from the village for the property so appropriated. The plaintiff further avers that there is no necessity for the appropriation of the property for street purposes; that Wall street is wholly unfit for street purposes; that its improvement will entail an expenditure in excess of $50,000, which amount is in excess of the amount the village may expend therefor; and that the property sought to be appropriated would be valueless for the village without the improvement of Wall street. The plaintiff avers that he has no adequate remedy at law, and he asks that on a final hearing the court shall find that there is no necessity for the appropriation of his property for street purposes and that he may have a permanent injunction.

The determination of the question involved in this case necessitates a consideration of the relative powers and duties of municipalities in appropriating property for public use, and of courts in reviewing the proceedings had by the municipal authorities in such cases. The law does not seem to be in serious doubt, nor difficult of ascertainment. It is stated clearly and concisely in 10 Ruling Case Law, 183, as follows:

“The Legislature, in providing for the exercise of the power of eminent domain, may directly determine the necessity for appropriating private property for a particular improvement or public use, and it may select the exact location of the improvement. In such a case, it is well settled that the utility of the proposed improvement, the extent of the public necessity for its construction, the expediency of constructing it, the suitableness of the location selected and the consequent necessity of taking the land selected for its site, are all questions exclusively for the Legislature to determine, and the courts have no power to interfere, or to substitute their own views for those of the representatives of the people. Similarly, when the Legislature has delegated the power of eminent domain to municipal or public service corporations or other tribunals or bodies, and has given them discretion as to when the power is to be called into exercise and to what extent, the courts will not inquire into the necessity or propriety of the taking.”

The statement of the law as given above is founded on reason and sustained by a great many authorities. The rule to the same effect is stated in slightly different phraseology in 20 Corpus Juris, 624, 626. On the latter page, in Section 112, the following language is used:

“While a Legislature may itself determine the necessity of exercising the power of eminent domain or of making the proposed improvement, it may, unless prohibited by the Constitution, delegate this power of determination to public officers or boards or to private corporations vested with the power of eminent domain, and their determination is conclusive in the absence of fraud, bad faith, or clear abuse of discretion. And, in the absence of any statutory provision submitting the matter to a court or jury, the decision of the question of necessity lies with the body of individuals to whom the state has delegated the authority to take. It is of course competent for the Legislature to declare that the question shall be a judicial one, in which case the court and not the corporation determines the question of necessity.”

The sections of the General Code under which the village of Maumee is proceeding to appropriate this land for street purposes were under consideration by the Supreme Court of the United States in Sears, Trustee, v. City of Akron, 246 U. S., 242, 38 S. Ct., 245, 62 L. Ed., 688, and in that case those sections were held to be constitutional. In the course of the opinion, on page 251 (38 S. Ct., 245) Mr. Justice Brandéis, speaking for the court, said that it is well settled, that, while the question whether the purpose of the taking is a public one is judicial, the necessity for and proper extent of the taking is a legislative question. The rule thus announced is fundamental and has been enforced and applied by the courts for time immemorial and under a variety of circumstances.

It is, however, insisted by counsel for plaintiff that the principles thus announced cannot he applied in the case at bar by reason of the decision of the Supreme Court of Ohio in Sargent v. City of Cincinnati, 110 Ohio St., 444, 144 N. E., 132. We do not think that the case just cited militates against the authorities to which attention has been called, and we believe the case in 110 Ohio St., 444, 144 N. E., 132, is clearly distinguishable from the one at bar. That case was one to appropriate certain property on which the city already had a lease for 99 years, renewable forever, and the language of the court must be considered in connection with the facts of the case which it had for decision. Even in that case it is stated in the second proposition of the syllabus that the question of the public need and the adaptability of the property to the intended use is a political question, and not justiciable, and it is plainly apparent that the court sustained the injunction in that case because the property was already in use for the purposes intended under a perpetual lease. In the course of the opinion the following language is used on page 451 (144 N. E., 134):

“It is not doubted that many of the preliminary inquiries in an ordinary appropriation proceeding are purely political in nature and legislative rather than judicial. The power of eminent domain is an attribute of sovereignty which may be exercised by the Legislature itself, or that power may be delegated to other governmental agencies, and as a general rule the only limitation upon this legislative authority is that there must not be an abuse of the power granted or bad faith in its existence or exercise.

“All these legislative functions relate to the' necessity and exigency of the taking, hut owners of private property may judicially inquire whether the specified use is a public use or whether such use will justify or sustain the compulsory taking of private property, and even though the legislative authority has declared the use to be a public one, the courts may properly inquire into the good faith of such declaration and whether there has been a manifest abuse of power.”

In the case at bar the amended petition contains no averment of fraud, bad faith, or abuse of discretion. The purpose for which the village of Maumee seeks to appropriate the property, to-wit, for the construction of a street, is clearly a public use. The necessity of the appropriation, and the location and extent of the property to be taken, were for the decision of the village council, and with that action the courts are powerless to interfere in the absence of fraud, bad faith, or abuse of discretion.

The amended petition does not state a good cause of action.

Decree for defendant.

Williams and Young, JJ., concur.  