Duffy v. City of Saginaw

• Decision Date: 26 September 1895
• Court: Michigan Supreme Court
• Parties: DUFFY ET AL. v. CITY OF SAGINAW ET AL.

64 N.W. 581

106 Mich. 335

DUFFY ET AL. v. CITY OF SAGINAW ET AL.

Supreme Court of Michigan

September 26, 1895

Appeal from circuit court, Saginaw county, in chancery; Eugene Wilber, Judge.

Bill by James Duffy and others against the city of Saginaw and Henry Melcher to cancel a paving assessment. There was a decree for complainants, and defendants appeal. Reversed.

William G. Gage, for appellants.

James H. Davitt, for appellees.

McGRATH C.J.

This is a bill to cancel a paving assessment upon three grounds First, that there was no legal advertisement for bids before letting the contracts; second, that no detail estimate of the cost of the improvement was certified to the council; third that the certificate of the board of public works to the assessment roll is not valid, because it was not signed by the members of such board.

Section 3, tit. 13, of the charter provides that the board of public works "shall advertise for proposals for the furnishing of material, and for the performance of such work." Local Laws 1889, p. 945. The time is not fixed by the charter. The records of the board show that on Monday, the 27th day of June, 1892, the board met, and ordered the clerk to "advertise for proposals until 12 o'clock noon Saturday, July 9, 1892." The testimony shows that the advertisement actually made was published in the official newspaper, but that it was not published on the 28th or 29th of June, but appeared for the first time in the issue of June 30th. There is no force in this objection. The time for which the publication should be made was a matter for the determination of the board. The board received the bids, and must be presumed to have ratified the action of the clerk, and determined that the advertisement was for a sufficient period. Updegraff v. Palmer, 107 Ind. 181, 6 N.E. 353; Taber v. Ferguson (Ind. Sup.) 9 N. E. 724; Beniteau v. City of Detroit, 41 Mich. 116, 1 N.W. 899.

Section 5 of title 6 of the charter provides that when the improvement is completed, or as soon thereafter as may be convenient, the board of public works "shall prepare a detail statement of the cost of such improvement, showing the amount to be assessed upon the property benefited as provided by the resolution ordering the said improvement." Local Laws 1891, p. 401. Section 6 provides that "the same shall be certified to the common council, and, when such statement shall have been approved by the common council, the same shall be certified to the board of public works, who shall proceed without unnecessary delay to make an assessment," etc. Id. p. 402.

The statement submitted contained the following details:

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Name of Between What Kind of Paid by Paid by Total

Street. Points, Improvements. Highway Property Cost.

Western Dis. Fund. Benefited.

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State. Michigan to Paved with $2,079.81 $5,493.83 $7,57-

Bond cedar and 3.67

cobble.

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The common council, at its next meeting, approved the statement, and instructed the board to make the assessment.

The charter, in section 3, tit. 13, provides that, whenever the council shall have decided upon making an improvement, the board of public works shall estimate in detail the probable cost and expense of such work and of the material to be used therein, shall make a record thereof in their office, and shall report such estimate to the council. This was done; the bids were reported to the council; and the contract for the work authorized by the common council. The council had, under section 5 of title 6 of the charter, in the resolution ordering the improvement, directed that the entire cost of the improvement, except the intersections, should be defrayed by an assessment upon the lands to be specially benefited thereby.

The facts bring the case within the rule laid down in Goodwillie v. City of Detroit (Mich.) 61 N.W. 526. The cost of the intersections was payable out of the highway fund, and it may be said that the charter only requires that the statement shall be so far in detail as to show the...