Taggart v. City of Detroit

• Decision Date: 22 June 1888
• Citation: 71 Mich. 92,38 N.W. 714
• Court: Michigan Supreme Court
• Parties: TAGGART, ATTY. GEN., v. CITY OF DETROIT.

38 N.W. 714

71 Mich. 92

TAGGART, ATTY. GEN., v. CITY OF DETROIT.

Supreme Court of Michigan

June 22, 1888

Appeal from circuit court, Wayne county, in chancery; GEORGE S HOSMER, Judge.

John F. Speed, (F. A. Baker, of counsel,) for appellant.

John W. McGrath, for appellee.

CAMPBELL J.

The attorney general filed his information in the nature of a bill in equity to restrain the city of Detroit from discontinuing the central public market in that city. The court below, upon an answer not controverting anything material in the information, dismissed the bill, but we are not informed whether this was done for a supposed lack of authority in the attorney general, or for want of equity. Both of those questions were argued. The attorney general appeals.

There can be no doubt of the right and duty of the attorney general to intervene and prevent franchises of a public nature from usurpation or from destruction. That holding a public market is an important public franchise is an elementary principle of law. In Rex v. Marsden 3 Burrows, 1812, it was doubted whether an information ought to be granted in favor of a private owner of such a franchise against usurpation by another private person, because there were other sufficient remedies; but it was recognized that the public interests might be protected by that process. And in Rex v. Starkey, 7 Adol. & E 95, it was held an offense punishable criminally to remove a market to the detriment of the public, as it may be actionable to do so in some other cases. Ellis v. Bridgnorth, 15 C. B. (N. S.) 52. The nature of these public interests will be considered presently. There is no doubt of the right of the attorney general to intervene.

The remaining questions relate to the mischief that is sought to be prevented and redressed. The most convenient method of explaining this will be to give the legal history,-of which we must take judicial notice,-in connection with the facts which explain it. From the time of the first city charter in 1806-and perhaps still earlier-there has never been a time when the city of Detroit has not been at least authorized, if not required, to maintain public markets. For a large part of this period the appointment or election of market clerks has been obligatory, from which we might be bound to infer, what this record shows, that one or more public markets existed from the earliest period. Prior to 1833 the public market place, which included also a market building, is known historically, and probably from various public uses to which it was put may be known judicially, as having been situated between Jefferson avenue and Detroit river, on Woodward avenue. At least one other market was described by territorial legislation, which need not now be referred to. In 1833-no doubt from the necessity of more space-the question of the location of the central market was submitted to a vote of the citizens of Detroit at a regularly called citizens' meeting. The selection of a location was between Woodward avenue, below where it then was, and Michigan Grand avenue, (lately renamed Cadillac square,) where it now is. Inasmuch as these streets are described in our statutes, we know that Woodward avenue was 80 feet narrower than Michigan Grand avenue, and it appears that the extent of the latter made much more room for a market than the other would have furnished. It was decided at that meeting to have the market on Michigan Grand avenue. A building was erected, fronting on the Campus Martius at the head of that avenue, for the combined uses of a city hall and market, extending along the middle of the avenue originally about 100 feet. The lower story as used for meat-stalls. Vegetables were sold in an open building not much sheltered except by a roof extending back in the avenue from the brick building, and the country wagons for the sale of market products were gathered along the avenue for some distance further. In process of time the buildings, both open and closed, were carried along so as to occupy the central part of the avenue to Randolph street, except as crossed by Bates street. In this way the whole of the avenue along its middle portion was made a market place, sometimes called the "City hall Market," and sometimes the "Central Market." From the repeated litigation which has come into this court we may infer that it was to avoid vexation from adverse interests that in 1848 it was deemed desirable to formally vacate the middle 50 feet of Michigan Grand avenue through its entire length, and, in addition to action by the council, to obtain a condemnation under the right of eminent domain, and the jury of inquest rendered a verdict in favor of such vacating. From that time to the present the city has occupied and claimed the whole space by title in fee, and used it for market purposes. Whether the fee then really belonged to the city ceased to be a practical question after the lapse of time, which as sufficient to bar any adverse right. In Cooper v. Detroit, 42 Mich. 584, ^[1] when the city of Detroit proposed to build the Central market building referred to in the pleadings before us, as a part of the Central market system, it was claimed by the bordering land-owners, who desired to prevent it, that this long occupancy for market purposes was not proprietary, and was not, therefore, effective. But it was held by this court that such an occupation was proprietary, and therefore protected by the statute of limitations. It was urged on the argument of the present case that, when we declared the right to be proprietary, we in effect held that the city could do as it should choose to do with its property. But under the common law it was the general doctrine that no one could hold a market that did not own the freehold of the land, and, if the public have any rights in the matter, we think the fact of city ownership cannot be of any importance in limiting them. While there may be a great deal of property owned in fee by a city, and its rights may be proprietary, yet all these rights belong to the municipality as a public corporation; and it is by no means inconsistent with the title that there may be trusts or obligations in regard to them. It appears from the bill that in 1872 the city took down the brick building fronting on the Campus Martius, and left the whole space open from that place to Bates street. The whole strip from the Campus to the other end of the avenue had been, in 1848, declared by the council to have been vacated for market purposes, and designated and set apart as a public market to be known as the "City Hall Market." No attempt was ever made to put an end to that designation of uses, although it is quite possible that the delay in rebuilding may have been in part owing to a desire-such as is now manifested-to turn the market into something else. But the chief reason was, no doubt, the large expenditure for a new city hall in place of the old market building. In 1875 authority was obtained from the legislature by special act to raise money for a new market building by borrowing money on market bonds. As the immediate occasion of a part of this complaint arises out of an alleged violation by the city of the conditions then imposed by the legislature, it will be necessary to refer to it particularly. The act not only imposed conditions on the loan, but also directed what use should be made of the building when completed. Laws 1875, (Local,) p. 537. By this statute the common council received authority to borrow not more than a hundred thousand dollars, on bonds pledging the faith of the city. These bonds were to be denominated "Central Public Market Stock of the City of Detroit." They were to be in sums not less than $500 each, to bear not more than 7 per cent. interest, and not be sold at less than par. They were to be payable not less than 20 years from date, and their proceeds were to be credited to "the Central Public Market Fund" and "applied exclusively to the purposes of erecting a Central public market in the city of Detroit." The law further provided that "the rents, fees, and profits derived from the said Central public market" shall be applied- First, to payment of interest coupons, and to establish a sinking fund to provide for the payment of the bonds, for which purpose $5,000 should be annually invested in the said sinking fund; second, to market expenses and repairs; third, the bonds were to be made payable $5,000 in each year from issue, "and the same shall be paid from the money provided for in said sinking fund." The law then declared in regard to the use of the building that one story should be set apart as a free public hall and for city offices. In 1881 the law was so amended as to substitute court-rooms for the public hall. Law of April 21, 1881. No subsequent action has been taken by the state legislature on the subject. There is no force in the suggestion that the new or amended charter contains room for a different financial scheme. The frequent and careless revision and re-enactment of charters for Detroit has...