Williams v. Mayor

Decision Date01 January 1853
Citation2 Mich. 560
CourtMichigan Supreme Court
PartiesWilliams v. Mayor, &c., of Detroit, et al

[Syllabus Material]

Appeal from the Wayne Circuit Court in Chancery.

The bill of complaint in this cause was filed against the Mayor Recorder, Aldermen, and the City Marshal of Detroit, to restrain the collection of an assessment imposed by order of the Mayor, Recorder and Aldermen upon lot 176, on the south side of Attwater street, in said city. It is claimed in the bill of complaint that the proceedings of the Common Council in assessing complainant's lot were unconstitutional and void, and that the assessment was irregular and illegal and not in conformity with the laws and ordinances of the Common Council, in that behalf passed and ordained. The several points of objection under each head are set out in the opinion of the Court. The matters of fact set up in the bill of complaint, are not in any material respect denied in the answer, and the cause was heard below upon bill and answer. The bill was dismissed, and from the decree of dismissal the complainant appeals to this Court.

Decree of the Circuit Court affirmed with costs to the appellees and all the proceedings together with the decree of this Court, and all things concerning the same, remitted.

Davidson & Holbrook, and A. D. Fraser, for complainant.

Howard & Mandell, for defendants.

OPINION

By the Court, Green, J.

The complainant asks a reversal of the decree dismissing his bill in the Court below, on two grounds:

1. That the proceedings of the Common Council in assessing his lot (176) on Attwater street, were unconstitutional and void.

2. That the assessment was irregular and illegal, not being in conformity with the laws and ordinances in that behalf passed and ordained.

Before entering upon a particular examination of the various clauses of the Constitution with which the laws and ordinances relative to assessments for paving streets, &c., in the city of Detroit, are supposed to conflict, it seems proper to advert to the theory of our State government, and to deduce from it, if we can, a plain and simple rule to guide us in the construction of that organic law whereby its powers are delegated and distributed to the several departments which constitute the machinery by which it acts.

It was strongly urged by the counsel for the complainant, on the argument of this cause, that the special enumeration of powers in Article 14 of the Constitution, entitled "Finance and Taxation," exclude all others that might be implied, and that the maxims of the law, expressio unius est exclusio alterius, and expressum facit cessare tacitum, are strictly applicable in the construction of the Constitution with regard to the powers of the Legislature over the subject of taxation. That certain legal maxims or rules of construction, which have been found generally applicable, afford important aid in arriving at the intention of those who framed the law, every lawyer will admit, but that there are some instruments or laws to which such maxims cannot be strictly applied, without doing manifest violence to the plain intent of the framers of the law, is also a matter of common experience.

This is especially true in the construction of State constitutions, as will appear manifest when we consider their character and objects.

All political power, originally and inherently belongs to the people. They, through their delegates, by them specially chosen for that purpose, form a constitution of government, which is submitted directly to them for their approval or disapproval. A majority expressing their approbation of the frame of government proposed, it becomes the organic law of the State, binding every citizen to a conformity with its requirements. It is the charter of every individual citizen's rights and privileges, and the guaranty of his liberty and safety, to the security of which every other citizen is pledged.

In order to carry into effect these great objects, the powers of government are divided into three departments: the Legislative, Executive, and Judicial; and amongst these departments all the powers of government are distributed.

The legislative power of the State is vested in a Senate and House of Representatives, and the other powers are vested in the appropriate departments. All the powers of government are thus delegated by the people to be exercised for their benefit, and in their name.

The legislative power is conferred upon a Senate and House of Representatives in broad and general terms, and no attempt is made to define it, or to specify the various subjects upon which it may be exercised. Having conferred this power unqualifiedly upon the two branches of the Legislature, but being conscious of man's infirmities, and especially of that which often prompts those who are least qualified for the stations they happen to occupy, to love the exercise of power, and not unfrequently to abuse it, it was deemed necessary to guard against such consequences, by imposing upon the Legislature certain specific duties, and limiting, restraining, and regulating the exercise of their power in several important particulars. Such limitations, restraints and regulations bind the Legislature, and, if disregarded, their acts in contravention of them are void, but all other acts properly pertaining to the legislative power of the State, are within the competency of the legislative department, and binding upon the people.

Under this view of the power of the Legislature, we will proceed to examine the several clauses of the Constitution supposed to have been infringed by the law under which that part of Attwater street, between Bates and Randolph streets, was ordered by the Common Council of the city of Detroit to be paved.

Section 11, Article 14, reads as follows: "The Legislature shall provide an uniform rule of taxation, except on property paying specific taxes, and taxes shall be levied on such property as shall be prescribed by law." It is insisted that the assessment in question was not made under any uniform rule of taxation provided by the Legislature, and that it was therefore void. It is not now necessary to determine what is the true import of the first clause of this section. No new rule of taxation had been provided by the Legislature when the assessment was made, and it is not pretended that this provision of the Constitution executes itself. Until the Legislature shall have established a rule in conformity to this requirement, it cannot be known what that rule is. Section 12 of the same Article was also referred to. It provides that "all assessments hereafter authorized shall be on property at it cash value." The term assessment, as sometimes used, denotes the valuation of property by the assessors for the purposes of taxation, and it is sometimes used to denote the levying of a tax upon property or persons. In this section it seems to have reference to the valuation, and not to the levying of a tax. The assessment complained of, however, if authorized at all, was so authorized by a law enacted long prior to the taking effect of the Constitution, and was not authorized by any law enacted after that time.

It is also urged that this assessment is in violation of the following provisions of the Constitution, viz: Section 14, Article 18: "The property of no person shall be taken for public use without just compensation therefor." Section 2 of the same Article: "When private property is taken for the use or benefit of the public, the necessity for using such property, and the just compensation to be made therefor, except when to be made by the State, shall be ascertained by a jury of twelve free holders, residing in the vicinity of such property, or by not less than three commissioners, appointed by a Court of record, as shall be prescribed by law;" and Section 15, of Article 15: "Private property shall not be taken for public improvements in cities and villages without the consent of the owner, unless the compensation therefor shall first be determined by a jury of freeholders, and actually paid or secured in the manner provided by law."

This involves the question, whether the money attempted to be raised by means of the assessment to defray the expenses of improving a public street, is sought to be taken by virtue of the right of eminent domain, or in the exercise of the sovereign power of taxation. Both are equally incidents and indispensably necessary to the existence of every sovereignty. It is insisted that compensation, as contemplated by the Constitution, means a return to the owner of the property taken, of its value in money, the legal currency of the country, and not in any real or supposed benefits to accrue to him from the use of the property taken--that money is as much property as land, goods and chattels, and if taken for public use, compensation in money must be made for it. It is very obvious that when private property is taken for public use, within the meaning of the Constitution, the compensation therefor must be made in money, for that is the only fixed standard or representation of value known to the law. There is no rule by which the value of one piece of property can be measured by the value of another. For this reason, when private property is required for public use, its value must be measured or ascertained by reference to this standard, because, until ascertained it is uncertain, and there is no other measure by which it can be ascertained. This, the Constitution requires shall be done by twelve freeholders residing in the vicinity of the property, or by not less than three commissioners appointed by a Court of record, as shall be prescribed by law. The Constitution makes no exception of any particular kind of property. It...

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