Davies v. City of Saginaw

• Decision Date: 28 July 1891
• Citation: 49 N.W. 667,87 Mich. 439
• Court: Michigan Supreme Court
• Parties: DAVIES et al. v. CITY OF SAGINAW et al.

49 N.W. 667

87 Mich. 439

DAVIES et al. v. CITY OF SAGINAW et al.

Supreme Court of Michigan

July 28, 1891

Appeal from circuit court, Saginaw county, in chancery; C. H. GAGE Judge.

Bill by Alfred Davies, Sarah Lee, and Belle Lee against the city of Saginaw and James F. Brown, treasurer, to restrain the collection of a street assessment. Injunction granted. Defendants appeal. Reversed.

James H. Davitt, for appellants.

Lawson C. Holden, for appellees.

MCGRATH, J.

Complainants file their bill to restrain the collection of an assessment for paving Genesee avenue from Hoyt to Hartsuff streets. On the 6th of September, 1886, the council declared the paving of said avenue, "with sapless cedar blocks, to rest upon sound pine boards, laid upon a bed of sand or gravel, not less than three inches in depth, prepared on the subgrade of the street to receive the same, the pavement itself to be curbed the whole length of each side thereof with stone curb securely set in a bed of bank sand or gravel, and, when complete, to be covered with a dressing of gravel, all in conformity to detail, plans, and specifications therefor, to be hereafter prepared by the board of public works, and adopted by this council," to be a necessary public improvement, and ordered the street to be so paved, directing the board of public works to prepare plans and specifications for said work, and also to determine the particular kind of material, and furnish an estimate in detail of the probable cost and expense of the improvement. The board of public works reported the plans and estimates to the council January 17, 1887, and the same were referred to the proper committee, which committee reported on January 24, 1887, recommending the approval of the same, and also recommending the placing of a tile subdrain under the curb-stone, on each side of the pavement, representing that the cost thereof would be about six cents per lineal foot. The council adopted the recommendation of the committee, and approved the plans, specifications, and estimates. On February 7, 1887, complainants, with others, presented to the council a written remonstrance protesting against the assessment of the cost of the tile drain, recommended by the committee as aforesaid, against the particular improvement district, and claiming that the expense should be borne by the city at large. The remonstrance was referred to the committee on paving, who reported that the district should bear the expense, and not the city at large, which report was concurred in by the council. On February 14, 1887, the board of public works sent a communication to the council suggesting the advisability of postponing the paving "until provision be had for the proper drainage of the street," and that it would be well for the council to consider the question before the contract is let "proposals for which will be received next week." This communication was referred to the committee on sewers and the committee on paving, which committees reported on February 21, 1887, that, "they are of the opinion that the letting of said contract had better be deferred until such time as provision is made for the disposal of the surplus water, either by sewers or otherwise." The recommendation of the committees was adopted. Nothing further was done in the matter until April 5th. In the mean time the board of public works had received bids for the work, which were afterwards returned unopened to the bidders. Upon the last-named date, the council adopted the following resolution: "Resolved, that the board of public works be and they are directed to advertise for proposals for the paving of Genesee avenue, from Hoyt to Hartsuff streets, in accordance with the plans and specifications heretofore adopted." On May 2, 1887, the board of public works reported the bid of Scanlon & Crowley for the paving of Genesee avenue, and recommended that the same be accepted, "provided the council are satisfied that the prices given are reasonable." The following action of the council was had thereon: "Ald. Comstock moved that the bid of Scanlon & Crowley for paving Genesee avenue, from Hoyt to Hartsuff streets, be referred back to the board of public works, with instructions to readvertise for proposals for such improvement. Ald. Becker moved, as an amendment, that the board of public works be instructed to contract with Scanlon & Crowley in accordance with their said proposal. Ald. Maier moved, as a substitute, that the matter be referred to the committee on paving. Substitute lost. The question was then had on the amendment of Ald. Becker. The same was carried by a vote of 10 ayes to 6 nays." It is claimed that this action was a nullity, for the reason that, after the adoption of Ald. Becker's amendment, the original motion as amended was not put, but Ald. Becker's amendment was in fact a substitute, and it was unnecessary to put the original motion, although that is a question of parliamentary law, the judgment of the council upon which the courts will not disturb.

The said Scanlon & Crowley proceeded under said contract and direction of the board of public works, and paved said street. At a regular meeting of the council, held September 26, 1887, the city clerk reported to the council that the city engineer had filed in his office detailed estimates of the cost and expense of paving Genesee avenue from Hoyt to Hartsuff streets, giving the said estimates in detail. The estimate shows the total cost, the amount to be paid by the street railway, the amount to be paid by the city for intersections, and the amount to be assessed upon the property benefited. At a meeting of the common council held October 3, 1887, the following resolution was adopted "Resolved, that the committee on taxes and assessments and city attorney be, and they are hereby, directed to examine and report to this council a list of the lots, blocks, and parcels of real estate which, in their opinion, are benefited by, and which should be assessed for the cost of, the improvement by paving, etc., of Genesee avenue, from Hoyt to Hartsuff streets." At a meeting held October 10, 1887, the committee on taxes and assessments, and the assessor on tax district, reported such certain lots and blocks as in their opinion would be benefited by such improvement, and recommended that the lots and blocks described be designated as the assessment district. The council received said report, and designated the described property as the property benefited, and to be assessed for said improvement, by a unanimous vote. At the same meeting a formal preamble and resolution was adopted by unanimous vote, upon call of the roll, fixing the assessment district, directing the assessor to assess the sum of "$8,544.97 on the property described, in proportion to the benefits and advantages which each description of said property is by him deemed to acquire from the making of said improvement, in the manner required by the charter of said city," and directing the said treasurer to collect from the railroad company the sum of $989.51. At a meeting held February 20, 1888, the clerk notified the council of the filing by the city assessor of the assessment roll, and the clerk was instructed to give notice of the hearing of appeals from said assessment for February 27, 1888, and notice was published by the said clerk as required by the charter. At a meeting of the council held February 27, 1888, complainants, with others, submitted to the council a protest against the confirmation of said assessment roll, alleging the following reasons: "(1) We deem the same illegal, unjust, inequitable, and against the rights of the undersigned, as the same was constructed against the wishes of said property owners, and was not a necessary public improvement at the time the same was ordered to be paved, by reason of improper drainage, which has not been benefited by said improvement. ...