Detroit v. Board of Public Works

• Decision Date: 31 October 1871
• Citation: 23 Mich. 546
• Court: Michigan Supreme Court
• Parties: The City of Detroit v. The Board of Public Works and others

23 Mich. 546

The City of Detroit v. The Board of Public Works and others

Supreme Court of Michigan

October 31, 1871

Heard October 17, 1871; October 18, 1871; October 19, 1871.

Appeal in chancery from Wayne circuit.

The common council of the city of Detroit filed their bill in the circuit court for the county of Wayne, in chancery, against the Board of Public Works of the city of Detroit, Henry H LeRoy, William Purcell, Deodatus C. Whitwood and Julius Stoll, to determine the validity of the act of the legislature, under which the corporation defendant derived its powers, and the individual defendants their offices as members of the board. The defendants having demurred to the bill, the cause was heard upon the demurrer, which was overruled and a final decree entered thereon, adjudging the act of the legislature, so far as it purports to create a board of public works, unconstitutional and void; and perpetually restraining the defendants from the exercise of any of the functions sought to be conferred upon them by the act. The defendants appeal to this court.

Decree reversed and the bill dismissed, with costs, to the defendants, LeRoy, Purcell, Whitwood and Stoll.

J. P Whittemore, Theo. Romeyn and Lyman Cochrane, for complainant.

Samuel T. Douglass, Geo. V. N. Lothrop and J. Logan Chipman, for defendants.

Christiancy J. Graves, J., Campbell, Ch. J., Cooley, J. concurred.

OPINION

Christiancy J.:

The legislature of 1871 passed an act entitled "An act to establish a board of public works in and for the city of Detroit," which was approved April 18, 1871, and, by the last section, was declared to take effect on the first Monday in August, 1871 (though some of its enactments by their terms were not to go into operation till the first day of January, 1872).

This act (among other provisions) enacts:

Section 1. The People of the State of Michigan enact, tat there shall be constituted for the city of Detroit a board of public works, composed of four persons, who shall be freeholders and qualified electors of said city, taken in equal numbers from the two political parties represented in the common council. The first board shall consist of Henry H. LeRoy, William Purcell, Deodatus C. Whitwood, and Julius Stoll, and all subsequent boards and members thereof shall be appointed by the common council of said city. The members of said board shall give bonds in the sum of fifty thousand dollars each, with sureties, to be approved by the common council of the city of Detroit.

Sec. 2. The said board shall, within one week after this act shall take effect, meet in the office of the city clerk of said city and take the oath of office prescribed for other city officers, and shall proceed by lot to determine their term of office respectively, one to serve for the term of two years, one for the term of four years, one for the term of six years, and one for the term of eight years.

Sec. 3. All vacancies in said board, whether by expiration of term of service or otherwise, shall be filled by the common council of said city by the vote of a majority of all the aldermen elect, and whenever such vacancy is filled, the person so elected shall be of the same political party as his predecessor; and no person shall be eligible to hold a seat in said board who is not a freeholder in said city, and a qualified elector; all vacancies in said board, except by expiration of term of appointment, shall be promptly reported by said board to the common council of said city, specifying the length of the unexpired term in which the vacancy has occurred.

Sec. 4. These and their successors in office shall be known by the name and style of "The Board of Public Works of the City of Detroit," and by that name shall have power to contract, sue and be sued, to purchase, hold and convey such personal and real estate as may be necessary to the convenience and needs of said city, to have a common seal, to alter and change the same at pleasure, to make by-laws and rules, and do all legal acts, which may be necessary and proper to carry into effect the intent and objects of this act.

Sec. 5. The said board of public works is hereby endowed with the powers, functions, duties and responsibilities, and vested with the property, books, records, papers and effects, which have heretofore been exercised and enjoyed by the board of water commissioners of said city of Detroit, the board of sewer commissioners, the commissioners of "grades" and "plans" of the city, and shall also have charge and control of the erection and construction of engine-houses, city hall, and all other public buildings (except school-houses), public sewers, drains, water-works, hydrants, pipes and reservoirs in said city; and it is hereby made the duty of the said several boards of commissioners herein referred to, to transfer to the board of public works of the city of Detroit, created by this act, all the books, papers, maps, records, moneys, assets and property belonging to the said boards of commissioners respectively; and the said board shall also have charge and control of the streets, parks and public grounds of said city, and may, by printed rules and orders, regulate the use of the same, and provide for planting ornamental trees therein: Provided, That nothing herein shall be construed to authorize said board to devote any more of a public street to ornamental trees than such as is not required or used for road and sidewalk purposes.

The remaining sections of the act were mainly calculated to carry into effect those already mentioned; and in several particulars powers previously exercised by the common council were transferred to this board of public works.

On the 29th day of July, 1871, some days before this act went into effect, a bill was filed in the circuit court for the county of Wayne, in chancery, in the name, and purporting to be on behalf, of the city of Detroit, against the board thus (to be) created, or rather, against the commissioners of that board whose names are mentioned in the act; setting forth, among various irrelevant and immaterial and some wholly impertinent matters, that the city of Detroit had been for a long time an incorporated city; that the common council of said city had the supervision and control, in varying degrees, of the several boards charged with distinct functions, viz: the board of water commissioners, the board of sewer commissioners, the board of commissioners upon the plan of the city, and the board of the commissioners of grades; that the legislature, at its last session, attempted to pass an act (meaning the act above referred to) changing materially and radically the municipal organization of the city, and purporting to transfer the most important functions of the government to the said commissioners or board attempted to be created by the act, and to place in their hands the arbitrary and unchecked control, to a great extent, of the business and finances of the city; that no notice, previous to the meeting of the legislature, was given of any intention to apply for a change in the city charter; that the bill (which by its passage became the act in question) was presented with the names of the commissioners in blank, and that the only election or appointment of said commissioners was by merely filling the blanks in said bill by the vote of each house in the course of its passage; that complainant is advised, and verily believes and charges, that the act is illegal, invalid and unconstitutional for several reasons which the bill proceeds to give, but which at present it is unnecessary to notice.

The bill sets forth what it claims to be the effect of several provisions of the act, taking powers from the common council and the various boards and commissioners, and vesting them in this board; that such powers are fraught with danger to the interests of the city; that the carrying of the act into effect would radically revolutionize the administration of the affairs of the city; and if the act should be adjudged unconstitutional, after the transfer of the papers, business and large interests which the act requires to be transferred, that great confusion, embarrassment and loss must ensue, and that it will lead to incalculable trouble and litigation, wherefore they come into a court of equity to test the validity of the act in the simplest and readiest manner; that said commissioners of the board (naming them) claim to be lawfully appointed, and complainant is informed that they intend to organize under the act and to enforce their asserted rights under it.

The prayer is that the defendant may answer the bill, and that the act may be declared unconstitutional and void,...