Goodwillie v. City of Detroit

• Decision Date: 22 December 1894
• Citation: 61 N.W. 526,103 Mich. 283
• Court: Michigan Supreme Court
• Parties: GOODWILLIE ET AL. v. CITY OF DETROIT.

61 N.W. 526

103 Mich. 283

GOODWILLIE ET AL. v. CITY OF DETROIT.

Supreme Court of Michigan

December 22, 1894

Appeal from circuit court, Wayne county, in chancery; Joseph W Donovan, Judge.

Action by Thomas B. Goodwillie and others against the city of Detroit to enjoin the collection of a paving assessment. From a decree declaring the proceedings for paving, and the assessment based thereon, illegal and void, and enjoining the collection of the assessment, defendant appeals. Reversed.

John J. Speed, for appellant.

Brooke & Spalding, for appellees.

McGRATH C.J.

The bill in this case is filed to enjoin the collection of a paving assessment. The case was heard on bill and answer. It is alleged that the proceedings are invalid "(1) because the board of public works never furnished the common council with the detailed estimate of cost of pavement required by the charter; (2) because the laying of water and gas pipes in the portion of the street paved was not completed a full year before the pavement was ordered, as the charter requires, but on the contrary the city laid the water main in the street immediately before the laying of the pavement; (3) because by entering into this paving contract, the council exceeded the charter limitation upon the aggregate cost of paving contracts entered into in one year without the petition of the owners of abutting property."

Compiler's section 320 of the charter of the city provides that when any public improvement *** is proposed the common council, before proceeding with the same, shall refer the matter to the board of public works, which shall forthwith examine it, and report thereon to the council; giving detailed estimates of the costs of the improvement, and making such recommendation as they deem expedient. An estimate of the cost in gross was reported to the common council. The bill does not allege that a detailed estimate was not actually made by the board. It does, however, allege that no other estimate was reported to the council. In this respect only does the present case differ from the case of Cuming v. Grand Rapids, 46 Mich. 158, 9 N.W. 141. The charter of Grand Rapids provided that, when the council decide that any public work is a necessary public improvement, the board of public works shall determine as to the particular kind and quantity of materials to be used therefor, and estimate the probable cost and expense of such work, and of the material to be used, in detail, and cause to be prepared, so far as necessary, plans and specifications for such work, and report their estimate to the common council. Mr. Justice Cooley, speaking for the court in that case, says: "The board of public works must undoubtedly make a detailed estimate, but there is much reason for contending that if only the sum total is reported to the council, and that body sees fit to act upon it, the objection cannot be taken afterwards. The estimate is for the information of the council, to enable that body to determine how much money shall be raised; and if they have the sum total, and act upon it without calling for further particulars, it may well be urged that the question is precluded." Under the charter provision in that case plans and specifications were prepared by the board of public works for each particular street, as its improvement was contemplated, while, under defendant's charter, plans and specifications for the various kinds of pavement are prepared in advance by the board of public works, and approved by the common council. The question of the cost would naturally be considered in detail upon the preparation and approval of such plans and specifications. The duty of furnishing the estimate is imposed upon the board of public works. The council called upon the board for such estimate; and an estimate having been furnished, and no further particulars having been called for, it must be assumed that the information was sufficiently specific to enable the council to act intelligently. In Butler v. Detroit, 43 Mich. 552, 5 N.W. 1078, the board of public works made no report as to the expediency of the proposed improvement, nor did they report any estimate of the cost. In Mills v. City of Detroit, 95 Mich. 422, 54 N.W. 897, the board reported no estimate whatever as to the cost.

As to the second objection, complainants rely upon section 314 which is as follows: "They shall establish a system of sewers for the entire city, and cause to be designated on said plats the streets through which the same are to be constructed; and no street shall be paved until the sewer to be constructed through the same shall be completed so far as the pavement is to extend; provided, that all sewers, water-pipes, gas pipes, and all connections, be made and completed at least one year before such paving is ordered to be done." The section is section 6 of chapter 15, relating to the board of public works. Respecting water and gas pipes and connections, neither the board of public works nor the council have the authority to lay either. The water board has exclusive management and control of laying water pipes, and connections, and the same are laid in their discretion, and gas is supplied by private corporations owning and managing the entire plant. The water board are empowered to lay pipes in the streets, and the consent of neither the council nor the board of public works is required, nor is there any provision enabling the council or board of public works to direct or compel the laying of water pipes by the water board. Water connections are usually made at the expense of the consumer, and under the rule laid down in Jones v. Commissioners, 34 Mich. 273, the expense of these connections cannot be made a charge upon the abutting property in advance of their use. However, these connections are made under rules formulated by the water commissioners. The answer avers that the laying of the water pipes in the street in question was...