Poletown Neighborhood Council v. City of Detroit

(dissenting). This is an extraordinary case.

The reverberating clang of its economic, sociological, political, and jurisprudential impact is likely to be heard and felt for generations. By its decision, the Court has altered the law of eminent domain in this state in a most significant way and, in my view, seriously jeopardized the security of all private property ownership._

*646This case will stand, above all else, despite the sound intentions of the majority, for judicial approval of municipal condemnation of private property for private use. This is more than an example of a hard case making bad law — it is, in the last analysis, good-faith but unwarranted judicial imprimatur upon government action taken under the policy of the end justifying the means.

My separate views are set down some days after the Court’s 5-to-2 decision has been made and announced and the controlling and dissenting opinions of my colleagues released. I take this unusual step for a number of reasons:

—The speed with which this case was submitted, argued, considered and decided has meant preparation of opinions which, in my view, do not adequately address the constitutional issues involved.

—The ever-broadening audience for which we write may profit from a longer and more detailed analysis of the unique facts which generated this litigation in order to appreciate the economic, social, and political context in which, in my view, our constitutional precedents have been disregarded.

—Because this case so remarkably alters our jurisprudence, it is worthwhile to trace our precedent from the beginning and to note with care where and how, from this dissenting perspective, the Court departed from it.

—Finally, it seems important to describe in detail for the bench and bar who may address a comparable issue on a similarly stormy day, how easily government, in all of its branches, caught up in the frenzy of perceived economic crisis, can disregard the rights of the few in allegiance to the always disastrous philosophy that the end justifies the means.

I

The real controversy which underlies this litiga*647tion concerns the propriety of condemning private property for conveyance to another private party because the use of it by the new owner promises greater public "benefit” than the old use. The controversy arises in the context of economic crisis. While unemployment is high throughout the nation, it is of calamitous proportions throughout the state of Michigan, and particularly in the City of Detroit, whose economic lifeblood is the now foundering automobile industry. It is difficult to overstate the magnitude of the crisis. Unemployment in the state of Michigan is at 14.2%. In the City of Detroit it is at 18%, and among black citizens it is almost 30%. The high cost of doing business in Michigan generally has driven many manufacturers out of this state and to the ’so-called sunbelt states on a continuing basis during the past several years. Nowhere is the exodus more steady or more damaging than from the Metropolitan Detroit area. It is appropriate to take judicial notice of the fact that the view is widely held that the Chrysler Corporation, headquartered in Detroit, is "on the ropes”, surviving only because of hundreds of millions of dollars of federally insured loans. It is likewise appropriate to note judicially the commonly known and readily verifiable fact that the Ford Motor Company, the American Motors Corporation and the General Motors Corporation have all, within days, reported for the previous year the largest financial losses in their histories.

A new national administration and a reconstituted Congress are struggling to find acceptable means to assist the American automotive industry to compete with the overseas automobile manufacturing competition which is largely accountable for domestic automobile industry losses. To meet *648that competition, domestic manufacturers are finding it necessary to construct new manufacturing facilities in order to build redesigned, lighter and more economical cars. That means new factories and new factory locations.

In the record of this case, the Environmental Impact Statement,1 prepared in connection with the condemnation of the property in question in this case states:

"The outcome of an anticipated 'no-action’ decision by the cities of Detroit and Hamtramck would be that General Motors would look outside the region for a site to fulfill its needs.”

The so-called "down-sized”, lightweight and compact automobiles which must be designed, built, and marketed to compete with overseas competition call for modernized "new generation” manufacturing facilities, newly retooled. The Environmental Impact Statement describes the situation:

"The purpose of the proposed action that is the subject of this EIS is to provide a suitable site for a new generation automobile assembly plant.

"The importance of a new generation facility is to produce a more competitive product line that meets energy efficiency criteria and has the flexibility to match model production to market demand without time-consuming and costly retooling as would be required with the existing type of assembly plant.

"The new assembly plants incorporate a primary assembly conveyor that is an overhead system, so that the engine can be put in from the bottom, rather than from the top as it is done today. They also are single-story, a design characteristic that increases the energy *649efficiency of the entire operation as opposed to moving auto bodies vertically through the existing multi-level assembly plants.”

The desirability of a "new generation facility” to enable General Motors Corporation in particular to recoup its losses and recapture its competitive edge is clear in view of the fact that for decades General Motors has been operating two manufacturing facilities in the City of Detroit of the "old generation” vintage. About the desirability of replacing old plants, the Economic Impact Statement states:

"Another problem with existing assembly plants is their inability to meet the hydrocarbon emission control levels that are due to become more stringent in the 1980’s. The new generation of facilities are designed to eliminate this problem.

"It is much less costly to build a new plant than to try to retrofit an old plant. In addition, the existing plant sites are generally too small for a new facility that is single rather than multi-storied. The result is that the automotive manufacturers have been turning to 'green field’ suburban locations as their most economically feasible siting option.”

For those reasons and others, General Motors concluded that it would terminate its Cadillac and Fisher Body manufacturing operations at the old facilities in Detroit by 1983 and build a new plant. Needless to say, the fundamental consideration governing the location of the new facility was the corporation’s enlightened self-interest as a private, profit-making enterprise.

It was in this economic context, fueled with talk of removal of its long-established Cadillac and Fisher Body manufacturing operations from the Detroit area and the construction of a new 3-mil-*650lion-square-foot plant in a sunbelt state, that in 1980 General Motors made its first overture to the City of Detroit about finding a suitable plant site in the city.2 The Environmental Impact Statement summarizes the situation thus:

"In recognition of the need to improve the competitive position of the domestic automobile industry, the President has proposed an Auto Recovery Program. In Detroit, the City has been intensively working with Chrysler Corporation and General Motors Corporation to assist, where possible, in each company’s efforts to make their aging, and for the most part obsolete, Detroit facilities more competitive. Among the successful results of this joint planning was the receipt by the City of an offer from General Motors to construct a modern 3 million square foot assembly complex at a cost of $500,000,000 to replace their aging Cadillac Assembly and Fisher Body plants that General Motors proposes to close in 1983. To Detroit, this provided the opportunity to retain 6,150 jobs which would have otherwise been permanently lost to the Detroit area if General Motors were forced by size constraints to move to a 'green field’ location. The proposed facility also represents a potential $15,000,000 in new property tax revenues.” Id., pp II-4 to II-5.

It was, of course, evident to all interested observers that the removal by General Motors of its Cadillac manufacturing operations to a more favorable economic climate would mean the loss to *651Detroit of at least 6,000 jobs3 as well as the concomitant loss of literally thousands of allied and supporting automotive design, manufacture and sales functions. There would necessarily follow, as a result, the loss of millions of dollars in real estate and income tax revenues. The darkening picture was made even bleaker by the operation of other forces best explained by the social sciences, including the city’s continuing loss of its industrial base and the decline of its population.4

Thus it was to a city with its economic back to the wall that General Motors presented its highly detailed "proposal” for construction of a new plant in a "green field” location in the City of Detroit. In addition to the fact that Detroit had virtually no "green fields”, the requirements of the "proposal” were such that it was clear that no existing location would be suitable unless the city acquired the requisite land one way or another and did so within the General Motors declared time schedule. *652The corporation told the city that it must find or assemble a parcel 450 to 500 acres in size with access to long-haul railroad lines and a freeway system with railroad marshalling yards within the plant site. As both General Motors and the city knew at the outset, no such "green field” existed. Unquestionably cognizant of its immense political and economic power, General Motors also insisted that it must receive title to the assembled parcel by May 1, 1981.

In a most impressive demonstration of governmental efficiency, the City of Detroit set about its task of meeting General Motors’ specifications. Nine possible sites were identified and suggested to General Motors. Only one was found adequate — a parcel consisting of 465 acres straddling the Detroit-Hamtramck border that has come to be known as Central Industrial Park (CIP).

In July, 1980, the general outlines of the proposal to condemn property to meet General Motors’ demands were submitted to the Detroit Common Council, which promptly approved the boundaries of CIP. The city had already begun to purchase property in contemplation of CIP’s establishment. Approval of the CIP boundaries by the Common Council set in motion other activities: surveying in the area was begun, appraisals of the affected properties were made, and two major documents were prepared: "Project Plan: Central Industrial Park” and "Draft Environmental Impact Statement: Central Industrial Park, The Cities of Detroit and Hamtramck, Michigan” (EIS). On September 30, 1980, the completed project plan was approved by the Detroit Economic Development Corporation. Two weeks later a public hearing was held on the then proposed CIP and the next day, October 15, 1980, the Environmental Impact Statement was issued. On October 29, 1980 *653the Detroit Community and Economic Development Department, pursuant to the mandate of § 9 of 1974 PA 338,5 sent a letter to the Detroit Common Council recommending that the council approve the project plan with suggested amendments for the CIP. Two days later, the council followed the recommendation, passed a resolution approving the project plan with minor modifications*, and declared in the resolution "that said project constitutes a public purpose” and "is hereby determined to be for the use and benefit of the public”. On November 3, 1980 the mayor of the City of Detroit signed the resolution.

Behind the frenzy of official activity was the unmistakable guiding and sustaining, indeed controlling, hand of the General Motors Corporation. The city administration and General Motors worked in close contact during the summer and autumn of 1980 negotiating the specifics for the new plant site. The negotiations culminated in a letter dated October 8, 1980 from Thomas A. Múrphy, Chairman of the Board of Directors of General Motors, to Mayor Coleman A. Young and Mr. Howard Woods, Chairmen of the Economic Development Corporations of the cities of Detroit and Hamtramck, respectively.6_

*655Attached to the letter from Mr. Murphy were eight pages of "site criteria requirements”, all established by General Motors, to which the cities of Detroit and Hamtramck were required to agree, as a condition precedent to General Motors’ "entering] into a mutually satisfactory development agreement with the Economic Development Corporations”. (Emphasis added.) The cities agreed.

Among the more publicized of the criteria imposed by General Motors was the requirement that "[t]itle to the entire site and the rail marshalling yard must be vested in the City of Detroit by May 1, 1981”. In light of that demand, the uncommon speed and efficiency with which the city moved to establish CIP and initiate proceedings to condemn the affected property is more understandable.

It is the less publicized site criteria prescribed by General Motors, however, and incorporated in the approved project plan by the City of Detroit, which suggest the withering economic clout of the country’s largest auto firm. An example is the requirement that the economic development corporations, which are nothing more than the alter egos of the municipalities involved, must "provide for the construction and upgrading of site perimeter roads”. This entails relocation and extension of East Grand Boulevard, which now runs through CIP; the widening of existing roads and construc*656tion of new roads to form a ring road around CIP; "[appropriate modification of 1-94 access ramps and service roads”; and erection of an "[appropriate street lighting system around the perimeter road”. The projected cost of these improvements is $23.5 million. In addition, it was decreed that "General Motors will not be responsible for absorbing the penalty of approximately $3.5 million for underground [utility] service versus overhead service, as required by the Public Lighting Department of the City of Detroit”. Furthermore, the economic development corporations agreed "[t]o dispose of, at their expense, hazardous and toxic waste materials which are found on the site”. Of course, the cities are also required by law to pay just compensation to those dislocated by CIP. In all, the projected public cost of preparing a site agreeable to the board of directors of General Motors is over $200 million.7 Remarkably, the site will be sold to General Motors for little more than $8 million.8 _

*657The long shadow of this public accommodation of a private manufacturing development was adumbrated by a provision in the site criteria document, attached to GM Chairman Murphy’s letter, which states:

"Taxes

"The Cities of Detroit and Hamtramck shall establish a Plant Rehabilitation District pursuant to the terms of Public Act 198 Michigan Acts of 1974, as amended, being MCL 207.551 et seq.; MSA 7.800(1) et seq., which shall include maximum allowable tax abatement under said law for a period of 12 years.”

The evidence then is that what General Motors wanted, General Motors got. The corporation conceived the project, determined the cost, allocated the financial burdens, selected the site, established the mode of financing, imposed specific deadlines for clearance of the property and taking title, and even demanded 12 years of tax concessions.9

From the beginning, construction of the new *658assembly plant in Detroit was characterized by the city administration as a do or die proposition. Accordingly, the city, aided by the Michigan "quick-take” statute,10 marshalled and applied its resources and power to insure that CIP was a fait accompli before meaningful objection could be registered11 or informed opposition organized. Faced with the unacceptable prospect of losing two automotive plants and the jobs that go with them, the city chose to march in fast lock-step with General Motors to carve a "green field” out of an urban setting which ultimately required sweeping away a tightly-knit residential enclave of first- and second-generation Americans, for many of whom their home was their single most valuable and cherished asset and their stable ethnic neighborhood the unchanging symbol of the security and quality of their lives.

It is easy to underestimate the overwhelming psychological pressure which was brought to bear upon property owners in the affected area, especially the generally elderly, mostly retired and largely Polish-American residents of the neighborhood which has come to be called Poletown. As the new plant site plans were developed and announced, the property condemnation proceedings *659under the "quick-take” statute begun and the demolitionist’s iron ball razed neighboring commercial properties such as the already abandoned Chrysler Dodge Main plant, a crescendo of supportive applause sustained the city and General Motors and their purpose. Labor leaders, bankers, and businessmen, including those for whom a new GM plant would mean new economic life, were joined by radio, television, newspaper and political opinion-makers in extolling the virtues of the bold and innovative fashion in which, almost overnight, a new and modern plant would rise from a little known inner-city neighborhood of minimal tax base significance. The promise of new tax revenues, retention of a mighty GM manufacturing facility in the heart of Detroit, new opportunities for satellite businesses, retention of 6,000 or more jobs, and concomitant reduction of unemployment, all fostered a community-wide chorus of support for the project. It was in such an atmosphere that the plaintiffs sued to enjoin the condemnation of their homes.

The judiciary, cognizant of General Motors’ May 1 deadline for the city’s taking title to all of the property, moved at flank speed. The circuit court conducted a trial on defendants’ motion to dismiss plaintiffs’ complaint from November 17 to December 2, 1980, and the decision to dismiss the complaint was made on December 9, 1980. Application for leave to appeal prior to decision by the Court of Appeals was received in this Court on December 15, 1980. However, the trial transcript was not received by us until January 5, 1981. We promptly convened, conferred, and granted leave to appeal on January 29, 1981. The case was argued on March 3, 1981.

In less than two weeks, the lead opinions were *660filed by this Court and released. It is in such circumstances that we were asked to decide, and did decide, an important constitutional issue having towering implications both for the individual plaintiff property owners and for the City of Detroit and the state alike, to say nothing of the impact upon our jurisprudence.

I now turn to set down separately my understanding of the law which governs this case and the outcome it ought to have dictated. My disagreement with my colleagues in the majority, while vigorous, is nonetheless respectful. Vigorous, because I think the unintended jurisprudential mischief which has been done, if not soon rectified, will have echoing effects far beyond this case, and respectful because the crushing burden of litigation which this Court must address daily did not afford adequate time for sufficient consideration of the complex constitutional issues involved within the two-week deadline the Court set for itself for submission, consideration, and decision of the case.

II

The Issue

Stripped of the justifying adornments which have universally attended public description of this controversy, the central jurisprudential issue is the right of government to expropriate property from those who do not wish to sell for the use and benefit of a strictly private corporation. It is not disputed that this action was authorized by statute. The question is whether such authorization is constitutional.

The Economic Development Corporations Act, enacted in 1974, provides for the formation of municipal economic development corporations. The *661corporations serve as conduits for effectuation of the salutary purposes of the act, which are expressed in § 2:

"There exists in this state the continuing need for programs to alleviate and prevent conditions of unemployment, and that it is accordingly necessary to assist and retain local industries and commercial enterprises to strengthen and revitalize the economy of this state and its municipalities; that accordingly it is necessary to provide means and methods for the encouragement and assistance of industrial and commercial enterprises in locating, purchasing, constructing, reconstructing, modernizing, improving, maintaining, repairing, furnishing, equipping, and expanding in this state and in its municipalities; and that it is also necessary to encourage the location and expansion of commercial enterprises to more conveniently provide needed services and facilities of the commercial enterprises to municipalities and the residents thereof. Therefore, the powers granted in this act constitute the performance of essential public purposes and functions for this state and its municipalities.” MCL 125.1602; MSA 5.3520(2).

The act empowers the corporations, among other things, to acquire "by gift or purchase” the necessary property for a "project”, borrow money and issue revenue bonds to finance a project, and lease or sell a project. The corporations do not hold the power of eminent domain. That remains in the hands of municipalities. Section 22 of the act reads:

"A municipality may take private property under Act No. 149 of the Public Acts of 1911, as amended, being sections 213.21 to 213.41 of the Michigan Compiled Laws, for the purpose of transfer to the corporation, and may transfer the property to the corporation for use in an approved project, on terms and conditions it deems appropriate, and the taking, transfer, and use shall be considered necessary for public purposes and *662for the benefít of the public.” MCL 125.1622; MSA 5.3520(22). (Emphasis added.)

It is under this section that the property was taken to establish CIP and it is this section whose constitutionality is examined here.

Ill

Public Use and Public Purpose Distinguished

Section 2 of art 10 of the state constitution, the taking clause, provides in pertinent part, "[p]rivate property shall not be taken for public use without just compensation”. (Emphasis added.) Although not stated affirmatively, it is axiomatic that the provision proscribes the taking of private property for private use. See, e.g., Soper v Ridgemoor Country Club, 275 Mich 129, 132; 266 NW 415 (1936); see, generally, 2A Nichols, Eminent Domain (rev 3d ed), § 7.1[2], pp 7-14 to 7-15.

Not to be confused is a separate provision of our constitution respecting an altogether different governmental power, one not in question in this case —the power of taxation. That provision limits the use of the power, including the expenditure of tax revenues, to "public purposes”: "Each city and village is granted power to levy * * * taxes for public purposes”. (Emphasis added.) Const 1963, art 7, § 21.

Well over a century ago, a clear line of demarcation was drawn between the powers of eminent domain and taxation, setting the jurisprudences of the taking clause and, if you will, the "taxing clause” on separate, independent courses. What is "public” for one is not necessarily "public” for the other:

*663"Reasoning by analogy from one of the sovereign powers of government to another, is exceedingly liable to deceive and mislead. An object may be public in one sense and for one purpose, when in a general sense and for other purposes, it would be idle and misleading to apply the same term. All governmental powers exist for public purposes, but they are not necessarily to be exercised under the same conditions of public interest. * * * The sovereign power of taxation is employed in a great many cases where the power of eminent domain might be made more immediately efficient and available, if constitutional principles would suffer it to be resorted to; but each of these powers has its own peculiar and appropriate sphere, and the object which is public for the demands of one is not necessarily of a character to permit the exercise of another.” People ex rel Detroit & Howell R Co v Salem Twp Board, 20 Mich 452, 477-478 (1870) (Cooley, J.).

The distinction established by Justice Cooley in Salem12 has been consistently maintained by this Court, with the exception of dicta,13 until now. It is in failing to make this distinction that, in my view, the Court loses its way.

The issue before the Salem Court was whether townships could use tax revenues to lend credit to a private railroad company for the purpose of building a railway line; that is, is railroad construction a public purpose? The Court answered no.

"[T]he term ’public purposes/ as employed to denote *664the objects for which taxes may be levied, has no relation to the urgency of the public need, or to the extent of the public benefit which is to follow.” Id., 485.

Concédedly, much has changed since these words were written in 1870. For example, the concept of public purpose as it relates to government’s taxing power has been greatly enlarged. See, e.g., City of Gaylord v Gaylord City Clerk, 378 Mich 273; 144 NW2d 460 (1966);14 cf. Advisory Opinion on Constitutionality of 1976 PA 295, 1976 PA 297, 401 Mich 686; 259 NW2d 129 (1977) (Ryan, J.).15 In fact, in Salem, Justice Cooley construed the concept of public purpose (taxation) more narrowly than the concept of public use (eminent domain).16

*665Nonetheless, the principle that public purpose and public use are different remains unaffected. The principle was reaffirmed by this Court, again speaking through Justice Cooley, in Ryerson v Brown, 35 Mich 333 (1877), a case involving eminent domain:

"The rules which underlie taxation do not necessarily govern the case [of eminent domain]. Taxation is for those purposes which properly and legitimately are designated public purposes; but the authority of the state to compel the sale of individual property for the use of enterprises in which the interest of the public is only to be subserved through conveniences supplied by private corporations or individuals, has been too long recognized to be questioned. In such cases the property is not so much appropriated to the public use as taken to subserve some general and important public policy; and the difference between a forced sale for a reasonable compensation paid and a forced exaction without any pecuniary return, is amply sufficient to justify more liberal rules in the former case than in the latter.” Id., 339.

The language indicates that in 1877 the government was free to employ eminent domain more liberally than the taxing power. That, however, is more indicative of the restrictions upon the taxing power in the last half of the 19th Century than upon the breadth of eminent domain. Since then, however, as noted above, the taxing power has been significantly expanded. Moreover, the private corporations about which the Ryerson Court spoke were engaged in the establishment of instrumentalities of commerce. Such corporations, unlike General Motors in this case, fall within a firmly *666established and carefully defined exception to the general prohibition against the use of eminent domain for the specific benefit of private corporations.17 Today, therefore, when dealing with eminent domain unrelated to development of the avenues of commerce, it is reasonable, indeed necessary, to conclude that, for purposes of aiding private corporations, eminent domain is more restrictive than the power of taxation. In fact, the Ryerson Court struck down a statute authorizing condemnation of property for construction of waterpower mills to be privately owned and operated, calling such action a taking for private use. Cf. Board of Health of Portage Twp v Van Hoesen, 87 Mich 533; 49 NW 894 (1891), in which a statute authorizing condemnation by privately controlled corporations to establish and maintain rural cemeteries was held unconstitutional as authorizing a taking for private use.

As a general proposition then, in the realm of aid to private corporations, "public purpose” (taxation) has been construed less restrictively than "public use” (eminent domain). The distinction is fully justified. The character of governmental interference with the individual in the case of taxation is wholly different from the case of eminent domain. The degree of compelled deprivation of property is manifestly less intrusive in the former case: it is one thing to disagree with the purposes for which one’s tax money is spent; it is quite another to be compelled to give up one’s land and be required, as in this case, to leave what may well be a lifelong home and community.

The distinction is further reflected in the Legislature’s proper role, as we have defined it, in describing the ambits of the terms. As this Court *667has previously said: "[T]he determination of what constitutes a public purpose is primarily the responsibility of the Legislature”. Advisory Opinion, supra, 696. " '[T]he determination of the legislative body of that matter should not be reversed except in instances where such determination is palpable and manifestly arbitrary and incorrect’ ”. Gregory Marina, Inc v Detroit, 378 Mich 364, 396; 144 NW2d 503 (1966) (plurality opinion) (quoting 37 Am Jur, Municipal Corporations, § 120). Other decisions of this Court abound with similar statements of deference to legislative determinations respecting the boundaries of "public purpose”.

The eminent domain cases, on the other hand, evince no like commitment to minimal judicial review. Instead, it has always been the case that this Court has accorded little or no weight to legislative determinations of "public use”. "Whether the use for which land is sought to be acquired by condemnation is a public one is a judicial question”. (Emphasis added.) General Development Corp v Detroit, 322 Mich 495, 498; 33 NW2d 919 (1948); accord, Lakehead Pipe Line Co v Dehn, 340 Mich 25, 39-40; 64 NW2d 903 (1954); Cleveland v Detroit, 322 Mich 172, 179; 33 NW2d 747 (1948); Board of Health of Portage Twp v Van Hoesen, 87 Mich 533, 539; 49 NW 894 (1891).

Defendants have cited the following cases to support the argument for minimal judicial review in the instant case: Gregory Marina, Inc v Detroit, supra; City of Gaylord v Gaylord City Clerk, 378 Mich 273; 144 NW2d 460 (1966); Hays v Kalamazoo, 316 Mich 443; 25 NW2d 787; 169 ALR 1218 (1947), and the majority relies on Gregory Marina, supra. Notably, each of the cases deals with the power of taxation, not eminent domain.

*668The majority also relies on Berman v Parker, 348 US 26, 32; 75 S Ct 98; 99 L Ed 27 (1954), as did the Gregory Marina plurality, where the United States Supreme Court said, "The role of the judiciary in determining whether [the] power [of eminent domain] is being exercised for a public purpose is an extremely narrow one”.

The Court’s reliance on Berman is particularly disingenuous. The case stands for minimal judicial review of acts of Congress by federal courts with respect to application of the Fifth Amendment taking clause, which per se applies only to the federal government.

It is certainly true that the Fifth Amendment taking clause is incorporated in the Fourteenth Amendment due process clause and applies to the states. Eg., Penn Central Transportation Co v New York City, 438 US 104, 122; 98 S Ct 2646; 57 L Ed 2d 631 (1978). It is also true that in construing the Fourteenth Amendment the United States Supreme Court has adopted a deferential standard of review. See Rindge Co v Los Angeles County, 262 US 700, 705-706; 43 S Ct 689; 67 L Ed 1186 (1923). But deference is paid not to the decisions of state legislatures but to the judgments of state courts pertaining to the public use question in the context of state law. The distinction is critical and, in this case, makes the whole difference.

"The nature of a use, whether public or private, is ultimately a judicial question. However, the determination of this question is influenced by local conditions; and this Court, while enforcing the Fourteenth Amendment, should keep in view the diversity of such conditions and regard with great respect the judgments of state courts upon what should be deemed public uses in any State.” Rindge Co v Los Angeles County, supra, 705-706 (emphasis added).

*669That the United States Supreme Court would defer to the decisions of Congress while interpreting the Fifth Amendment or to this Court while interpreting the Fourteenth Amendment on the issue of public use, is no logical support for the proposition that this Court, in construing the Michigan constitution, should defer to the judgment of the Michigan Legislature.

In point of fact, this Court has never employed the minimal standard of review in an eminent domain case which is adopted by the majority in this case. Notwithstanding explicit legislative findings, this Court has always made an independent determination of what constitutes a public use for which the power of eminent domain may be utilized.

The historic distinction notwithstanding, it is clear that the terms "public use” and "public purpose” have, indeed, been used interchangeably in the inexact language of both eminent domain and taxation cases written by this Court. See, e.g., In re Slum Clearance, 331 Mich 714, 720; 50 NW2d 340 (1951) (eminent domain) ("[T]he public purpose of slum clearance is * * * the one controlling purpose of the condemnation”.); Hays v Kalamazoo, 316 Mich 443, 453; 25 NW2d 787; 169 ALR 1218 (1947) (taxation) (" 'A public use changes with changing conditions of society’ ”). It is equally clear, however, and this is what matters, that the diiferent principles informing those terms have not been interchanged. By today’s unsound and improvident decision, the separate jurisprudences of two constitutional provisions have been merged into one as though it was always so.18__

*670IV

Eminent Domain and Private Corporations

As a general rule, when the object of eminent domain is to take land for ultimate conveyance to a private corporation to use as it sees fit, the state constitution will forbid it as a taking for private use.

"Land cannot be taken, under the exercise of the power of eminent domain, unless, after it is taken, it will be devoted to the use of the public, independent of the will of the corporation taking it.” Berrien Springs Water-Power Co v Berrien Circuit Judge, 133 Mich 48, 53; 94 NW 379 (1903).

Accordingly, land may not be condemned for private corporations engaged in the business of waterpower mills, Ryerson v Brown, 35 Mich 333 (1877); cemeteries, Board of Health v Van Hoesen, 87 Mich 533; 49 NW 894 (1891); or general retail, Shizas v Detroit, 333 Mich 44; 52 NW2d 589 (1952). In this case, land has been condemned solely for a private corporation engaged in the business of manufacturing automobiles.

A

It is plain, of course, that condemnation of property for transfer to private corporations is not wholly proscribed. For many years, and probably since the date of Michigan’s statehood, an exception to the general rule has been recognized. The exception, which for ease of reference might be de