City of Grand Rapids v. Hughes

• Decision Date: 08 November 1860
• Court: Michigan Supreme Court
• Parties: City of Grand Rapids v. Henry Hughes

15 Mich. 54

City of Grand Rapids v. Henry Hughes

Supreme Court of Michigan

November 8, 1860

Heard October 18, 1860

Error to the recorder's court of the city of Grand Rapids.

This was an action to recover a penalty for encroaching upon the public highway in the city of Grand Rapids.

It was brought under the following ordinance adopted by the common council of said city, to wit:

"In case any building, fences or other improvement which now is or may hereafter be erected within the city of Grand Rapids shall extend into, or in any manner encroach upon or obstruct any highway, street, alley, or public square, the city superintendent may serve, or cause to be served, a written notice on the owner or occupant thereof, if residents, and if not residents, by posting the same in a conspicuous place therein specifying the location and extent of such encroachments, and requiring such owner, within thirty days, to remove the same from off such highway, street, alley, or public square, and if such owner shall not, within the time specified in such notice, remove such obstruction or encroachment, such owner shall be liable to a penalty of ten dollars for every day thereafter, until such encroachment or obstruction shall be removed."

The plea was the general issue. Judgment was rendered in favor of the defendant.

The case involves the power of the common council to impose a penalty in such a case.

Judgment of the recorder's court affirmed, with costs.

W. A. Robinson and C. I. Walker, for plaintiff in error.

Gray & Thompson, for defendant in error:

1. The common council had no right to pass the ordinance under which this action is brought.

a. The declaration implies that the ordinance in question was adopted under and by virtue of the power conferred upon the common council, by clause 8, sec. 10, of the charter (S. L. of 1857, p. 285). This clause relates to the "cumbering" of streets, etc. We claim that "cumbering" and "encroachment" are two entirely different matters, and that the defendant was not guilty of cumbering."

Section 21, clause 7, of the charter of the city of Detroit, provides for an ordinance to prevent and prohibit the incumbering of public docks, etc.: Laws of 1857, p. 95. Clause 8, p. 96, prohibits the erection of buildings on them. Clause 13, p. 97, authorizes the common council to prohibit and prevent the incumbering of streets, etc. Clause 24, p. 99, provides for an ordinance to prohibit and remove from streets and highways, encroachments by buildings, fences, etc.: 1 Comp. L. p. 366, §§ 1086, 1087, made an evident discrimination between "obstructions" and encroachments.

The same distinction is found in plaintiff's charter: Laws of 1857, p. 285; 287.

b. No power is given to pass any ordinance to prevent and remove encroachments. It does not come under section 10, p. 284, which defines the general subjects, relative to which the council may adopt "ordinances, by-laws, and restrictions." Many other sections are found, in which this power is granted: P. 287, sec. 12; p. 313, sec. 34; p. 322, sec. 63; p. 323, secs. 1, 2, 3; p. 325, sec. 11; p. 326, sec. 13. But section 11, p. 287, does not grant it. The right of the council to enact this ordinance must come under this section, if any.

Such power cannot be taken by implication, since this is not necessary to enable the council to carry out the powers which are expressly given it.

Section 34, p. 313, makes this body commissioners of highways for the city. Their duties and powers are defined by the laws of the state, except so far as increased or restricted by the charter. For these powers and duties, see 1 Comp. L., p. 340. Their mode of action, in cases of obstructions or encroachments, is laid down on p. 366. The legislature have deemed these provisions ample and sufficient.

c. By § 14, p. 288, Laws of 1857, the council have no power to direct a penalty, except where it has authority by the charter to pass an ordinance. The authority must, therefore, be express, and cannot be taken by implication. The language is too distinct to admit of any other construction.

OPINION

Cooley, J.

The exceptions which were argued in this case relate to the exclusion of evidence; but the declaration is before us, and if it appears from that that the action could not be sustained upon any evidence which could be given under it, it would be idle to pass upon the exceptions.

The action is brought under an ordinance of the city of Grand Rapids, which provides that in case any building, fence or other improvement, which now is or may hereafter be erected within said city, shall extend into or in any manner encroach upon or obstruct any highway, street, alley or public square, the city superintendent may serve or cause to be served a written notice on the owner or occupant thereof, if a resident, and if not a resident, by posting the same in a conspicuous place, therein specifying the location and extent of such encroachment, and requiring such owner within thirty days to remove the same from such street, etc., and if such owner shall not, within the time specified, remove such obstruction or encroachment, he shall be liable to a penalty of ten dollars for every day thereafter, until such obstruction or encroachment shall be removed.

The particular encroachment complained of in this case is the inclosing a portion of the Grandville road, so called, with a board and post fence, and the erection of a dwelling-house within the inclosure. This appears to have been done in 1851 six years before the ordinance was...