Beecher v. City of Detroit

• Decision Date: 10 June 1892
• Citation: 92 Mich. 268,52 N.W. 731
• Court: Michigan Supreme Court
• Parties: BEECHER v. CITY OF DETROIT.

52 N.W. 731

92 Mich. 268

BEECHER v. CITY OF DETROIT.

Supreme Court of Michigan

June 10, 1892

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

Action by Luther Beecher against the city of Detroit. Judgment for defendant. Plaintiff appeals. Affirmed.

Ervin Palmer and Henry M Cheever, for appellant.

Edward Minock, (John J. Speed, of counsel,) for defendant.

GRANT J.

The bill in this cause is filed by the complainant to restrain defendant from collecting a tax assessed upon his lands for the purpose of paying a portion of the damages awarded in opening and extending Eleventh street, in said city. The proceedings were instituted under Act 124, Pub. Acts 1883. Complainant appealed from the confirmation of the award to this court. The proceedings were affirmed, except as to three parcels, and a new appraisement ordered as to them. The proper proceedings were taken under this order, and another appraisement had as to these three parcels. The total of the two appraisals was $11,590. The case will be found in 75 Mich. 455, 42 N.W. 986. The total amount of these appraisals was paid by the city, and received by the complainant. He is therefore foreclosed from raising any objections to the regularity of the proceedings. After those proceedings were concluded, the common council created a special taxing district upon the theory that the real estate within such district was benefited by the improvement, and fixing the amount of such benefit at the sum of $6,000, which was ordered assessed and levied upon the several parcels of land in proportion, as near as might be, to the advantage which each parcel was deemed to have acquired by such improvement. The board of assessors of the city were also directed to proceed to make an assessment roll in conformity with the requirements of the charter relating to special assessments, for collecting the expense of public improvements, and to assess each parcel, as near as might be in accordance with the amount of benefit to be derived from the improvement. The board of assessors performed their duty and gave notice, as required by law, that the assessment roll was completed, and would remain in the office of the assessor from the 13th to the 27th of May. Of these proceedings complainant had notice, and it does not appear that he made any objection. At the expiration of the time the board transmitted the assessment roll to the common council, with proof of publication of the notice, and reporting that no one had appeared to object to the roll, or asked any correction thereof. The roll was duly confirmed by the council. Decree was entered dismissing the bill.

The law provides that, if the common council believe that a portion of the city in the vicinity of the proposed improvement will be benefited thereby, they may, by an entry in their minutes, determine that the whole or any just portion of the compensation awarded by the jury shall be assessed upon the owners or occupants of real estate deemed to be thus benefited; and they shall by resolution fix and determine the district benefited, and specify the amount to be assessed thereon. The amount thus ascertained is to be assessed upon the owners or occupants of such taxable real estate in proportion, as nearly as may be, to the advantage deemed to be acquired by the improvement. The assessment, levy, and collection are governed by the provisions of the charter for assessing, levying, and collecting the expense of a public improvement when a street is graded. The assessment is made a lien on the premises on which it is made until payment thereof. The objections urged against the validity of the tax are these: (1) The tax upon the land is illegal. It should have been assessed as a personal tax. (2) The council directed the assessment to be made in accordance with the charter provisions "relating to special assessments for collecting the expenses of public improvement," whereas it should have been made in accordance with the provisions applicable to a public improvement, "where a street is graded." (3) The assessment for benefits is not apportioned among the parties benefited upon any principle recognized in the law, but is made upon a basis purely arbitrary, which cannot be justified as an exercise of the taxing power. (4) The assessment of local benefits should have been made by the same jury which condemned the land for public uses, and not by a different body or tribunal. (5) The law does not provide that those specially taxed for benefits may be heard. (6) The common council, in its resolution fixing the taxing districts, did not state that it believed that that portion of the city was benefited. (7) That certain portions of the taxing district were not assessed.

1. The first objection is based upon that provision of the statute providing that...