Farr v. City of Detroit

• Decision Date: 29 March 1904
• Citation: 136 Mich. 200,99 N.W. 19
• Court: Michigan Supreme Court
• Parties: FARR v. CITY OF DETROIT et al.

99 N.W. 19

136 Mich. 200

FARR v. CITY OF DETROIT et al.

Supreme Court of Michigan

March 29, 1904

Appeal from Circuit Court, Wayne County, in Chancery; George S Hosmer, Judge.

Suit by Merton E. Farr against the city of Detroit and others. Decree for complainant. Defendants appeal. Reversed.

Grant J., dissenting.

Timothy E. Tarsney (John W. McGrath, of counsel), for appellants.

Walker & Spalding, for appellee.

MONTGOMERY J.

In this case, in my view, the question presented is whether this complainant is entitled to the remedy which he seeks in a court of equity. The facts are sufficiently stated in the opinion of Mr. Justice GRANT. The stipulation is that complainant had such knowledge of the work as a person living on said avenue would naturally have. There was testimony tending to show that this property was benefited by the improvement to the extent of the assessment. In addition to this, complainant was bound to take notice of the public statutes of the state, and that under the charter of the city of Detroit the only method of compensating for such improvements was by an assessment upon the property. He stood by, and permitted this work to be done, and now seeks relief in a court of equity. The question is not whether there was a technical estoppel--a question which my Brother GRANT discusses, as it seems to me, unnecessarily. It may be true that the complainant is not estopped from asserting the invalidity of this tax. But it is quite another thing to say that he is entitled to come into a court of equity to demand of right the interposition of that court to arrest the proceedings of the public authorities. It is a question of remedy. We think there can be no doubt that under proper legislative authority the assessment of complinant's land for the benefit derived for the improvement in question might be made. Lack of authority to make the assessment may be supplied by retrospective legislation when such authority might have been given in the first instance. Cooley, Taxation (3d Ed.) p. 510. Such a reassessment may be made when the first assessment was irregular, unauthorized, or even made under a defective law. Id. 514. This question is not a new one in this state. In Byram v. City of Detroit, 50 Mich. 56, 12 N.W. 912, 14 N.W. 698, the rule was laid down that where a party, under such circumstances, stands by until his property is benefited by the improvement, he will not be permitted to go into a court of equity to be relieved of the tax. The same rule was laid down in Lundbom v. City of Manistee, 93 Mich. 170, 53 N.W. 161, and followed in Atwell v. Barnes, 109 Mich. 10, 66 N.W. 583, and Fitzhugh v. City of Bay City, 109 Mich. 581, 67 N.W. 904. It is impossible to distinguish these cases from the present, unless it be assumed that this complainant, living upon the lot benefited, having such knowledge as a resident on the street would be likely to have, was not bound to know that an attempt was being made to charge this property with the value of this improvement. This he cannot assert without asserting ignorance of the law, the provisions of which render the property subject to assessment for the improvement.

The decree should be reversed, and the bill dismissed.

CARPENTER, J., took no part. HOOKER, J., and MOORE, C.J., concurred.

GRANT J. (dissenting).

The bill in this case was filed December 22, 1900, to set aside an assessment against complainant's property for paving a portion of a street in the city of Detroit. The charter requires a petition of a majority of the frontage on the part of the streets to be paved before the common council is authorized to proceed. Such a petition is a condition precedent to the jurisdiction of the council. The petition in this case was presented to the council June 6, 1899, and, while apparently having a majority of the frontage, did not in fact have it. Apparently, the common council made no investigation to determine this jurisdictional question before proceeding. The board of public works, on August 29, 1899, reported that it had entered into a contract with one Hanley to do this paving, and asked for the council's approval and confirmation of the same. The council refused to confirm it. On September 19th the board reported another contract, which was more than $4,000 above the first one. This was rejected. On September 5, 1900, the common council passed a resolution directing the board of public works to advertise again for proposals for the paving. Pursuant to this resolution the board reported on February 6, 1900, a contract, which the council approved February 27, 1900. The work was commenced the following spring, and was concluded during the summer. The assessment roll was transmitted by the board of assessors to the common council September 25, 1900, and approved and confirmed. When that roll was made, and what opportunities, if any, were given the taxpayers to make objections, do not appear. After the commencement of this suit, and before the hearing thereof, that assessment roll was rescinded by the common council, and another assessment roll, identical in every particular except in name with the former roll, was made and confirmed by the common council on the 8th day of October, 1901, whereby the same assessment was made against the complainant's lands. Complainant purchased the property in June, 1900, after the contract was let and the paving partly done.

The ordinance and contract provided that eight hours should be a day's work; that $1.50 should be the minimum day's pay for all labor; that no alien or nonresident of the city should be employed by the contractor; and that for 10 years after the acceptance of the payment the contractor should keep it in good condition and repair, so that neither the city nor the property owners should be at any expense whatever, and that the pavement at the expiration of 10 years be in good condition and repair. The above provisions of the ordinance were not inserted in the specifications nor in the advertisement for bids upon which bids for the contract for this work were made and received, but were inserted in the contract, and the bids and contract were made with reference to them.

Among the agreed facts is also the following: 'That complainant lived on Grummond avenue when the petition was presented to the common council, when said street was paved when the contract was let, and up to the time that the bill in the cause was filed, and had such knowledge of the said work as a person living on said avenue would naturally have.' The case was heard upon pleadings and proofs in open court, and a decree entered for complainant, restraining the collection of the tax.

The petition, not containing a majority of the frontage, conferred upon the common council no authority or jurisdiction to proceed. We have, then, an attempt to make a municipal public improvement, and to assess the tax therefor upon abutting owners, when the proceedings is void ab initio for lack of jurisdiction. Auditor General v. Fisher, 84 Mich. 128, 47 N.W. 574, is on all fours with this case, and is conclusive of the law controlling it. The township board in that case decided that the petition was signed by a majority of the property owners. In fact, it was not. The court held that the township board obtained no jurisdiction in the case, and set aside the tax. It was also there insisted that the finding of the township board that a majority of the property owners had signed the petition was conclusive. It was held, in the absence of a statutory provision making the action of the township board conclusive, that such finding is not conclusive; that that fact could be inquired into by the court, and could be shown as a defense to an action to collect the assessment--citing authorities. To the same effect are Mulligan v. Smith, 59 Cal. 206, Canfield v. Smith, 34 Wis. 381, and Ogden v. Armstrong, 168 U.S. 224, 18 S.Ct. 98, 42 L.Ed. 444. In the Fisher Case the owner of the land took no steps to contest the validity of the tax until he was summoned into court in the usual suit brought by the Auditor General to foreclose the liens upon lands delinquent for nonpayment of taxes. In the present case the owner has not waited for that suit, but has filed his bill to restrain the collection. The only difference between the two cases lies in the remedy.

The assessment and tax are void for another reason. The provision of the contract limiting the hours of work, prescribing the rate of pay, and prohibiting the employment of alien and nonresident labor are absolutely void. They naturally tend to increase the cost of these improvements to the taxpayers, and to limit, and in some instances to prohibit, competition. A contractor living in the city and employing only residents of the city, would not only have the advantage over a nonresident bidder, who employed nonresident workmen, but it would naturally prevent a nonresident or a resident contractor who employs nonresident labor from bidding at all. Besides, it is no legal concern of the common council how many hours contractors and their employ�s may agree to work, or where they may reside, or what pay they may agree upon. These are matters which, under the defendant's charter, rest entirely with the employer and employ�. The charter requires contracts to be let to the lowest responsible bidder. The council has no power to attach conditions which will deprive the taxpayers of the rights to such contracts. Whether the Legislature can confer upon the common council the power to impose any of these conditions is a question not before us. It is sufficient in this case to say that no such right is conferred. The following authorities condemn such provisions as void: Atlanta v Stein, 111 Ga. 789, 36 S.E. 932, 51...