Lewick v. Glazier

• Decision Date: 29 March 1898
• Citation: 74 N.W. 717,116 Mich. 493
• Court: Michigan Supreme Court
• Parties: LEWICK ET AL. v. GLAZIER ET AL.

74 N.W. 717

116 Mich. 493

LEWICK ET AL. v. GLAZIER ET AL.

Supreme Court of Michigan

March 29, 1898

Appeal from circuit court, Washtenaw county, in chancery; Edward D Kinne, Judge.

Bill by William G. Lewick and others against Frank P. Glazier and others and the village of Chelsea to prevent the performance of a contract entered into between the defendants to construct a waterworks system. From a decree in favor of the complainants, defendant Glazier appeals. Reversed.

D. B. Taylor (B. M. Thompson, of counsel), for complainants.

A. J Sawyer (Edwin F. Conely and G. W. Turnbull, of counsel), for defendant Glazier.

A. F. &amp F. M. Freeman, for defendant village of Chelsea.

HOOKER J.

In the summer of 1896 the defendant Frank P. Glazier began the construction of works, and the laying of street mains, with a view to supplying the village of Chelsea with water for fire and other purposes, in reliance upon a contract which had previously been made between the village, through its common council, and himself. Some resident taxpayers filed the bill in this cause to prevent the performance of this contract upon the ground that it was void; making Glazier and the village parties defendant. Before the hearing the works were completed and put in operation. The defendant Glazier has appealed from a decree granting the prayer of the bill.

The contract is alleged to be void for several reasons, viz.: (1) It was made at a special meeting which is not shown to have been properly called, and there is no proof that notice of the meeting was properly given. (2) It has not the requisite number of votes, without counting those of several trustees who were disqualified from voting upon the subject, by reason of personal interest in the contract, and relationship to defendant Glazier. (3) The ordinance was defective in that it was not entitled as the charter requires, and was given immediate effect before publication, and no certificate of publication was ever filed. (4) The contract attempted to create a monopoly. (5) It was so unreasonable as to be beyond the power of the council.

The council consisted of six members,-the president and five trustees. The charter provided that "the president or any three members of the council may appoint special meetings, notice of which, in writing, shall be given to each trustee, or left at his place of residence at least six hours before the time of meeting." At the meeting when this contract was made, one member was absent. The president Schenk, testified that he called the meeting, while the marshal testified that he "served notices of the meeting upon all of the trustees that he could find, and left such notices at the respective places of residence of the others six hours before the time appointed for the meeting; that he told the president at the meeting that he had served them, and after the meeting he made a return of the service, and certified it, and gave it to the clerk. He was corroborated as to some of these statements by one or more witnesses, and there was pasted upon the record of the council the following: "George P. Glazier, A. H. Mensing, John J. Raftrey, I. Vogel. I, Rush Green, village marshal, do hereby certify that on this date (Aug. 24th, 1896) I served written notices on trustees Geo. P. Glazier, J. P. Foster, J. J. Raftrey, F. Wedemeyer, and I. Vogel, relative to a special meeting of the village council to be held at 8:30 o'clock p. m. on date above mentioned, as per order of William P. Schenk, president. I further certify that all the notices referred to were served not later than 2 o'clock p. m., above date. Rush Green, Village Marshal." It does not appear when this was attached, or by whom. It is contended that, inasmuch as all of the trustees were not present at the meeting, the proof is insufficient to show the regularity of the meeting, because neither the call nor the proof of service of notice appears upon the record, and for the further reason that there is no proof of the contents of the notice served. It is also said that it does not appear that the call or notice stated the object of the meeting, or was in writing. The provision in relation to the appointment of special meetings is general. It is not, in terms, required to be in writing, or to state the object of the meeting; nor is anything said about its being filed or made a matter of record. The notice must be in writing, and "must be served on each trustee, or left at his place of residence, at least six hours before the meeting." "Special meetings, properly called according to the rules laid down in the charter, are legal, and the proceedings valid, if all the members entitled to be present are properly notified." Tied. Mun. Corp. 97; Dill. Mun. Corp. �� 263, 268. In many of the states it is held that where acts have been done by the directors or trustees of a corporation, private or municipal, the law presumes the meeting to have been properly called, unless by the terms of the statute preservation of evidence thereof is required. The opinion in the case of State v. Williams, 25 Me. 564, quotes Thayer v. Stearns, 1 Pick. 109, as authority for the proposition "that every presumption should be made in favor of the regularity of such meetings." And in Briggs v. Murdock, 13 Pick. 305, it is said: "The experience of all our judicial tribunals must have gone far to teach the necessity of not being hypercritical in reviewing the proceedings of our multiplied municipal corporations. We all know that those necessarily, or at least ordinarily, employed to transact the affairs of those corporations, cannot be expected to be possessed of much, if of any, legal acumen. Certainty to a common intent, and such as would suffice for all practical purposes, would seem to be all that could be expected in such cases, or be reasonably required. But, however this may be, the legislature of this state have deemed it expedient to prescribe particularly what shall be done by those who may be required to warn town meetings, and what their returns of their doings shall contain. Whenever, therefore, it shall hereafter be found that there was any deficiency in any such particulars, there would seem to be no alternative but to consider the meetings held under any such defective return to be void, whatever may be the consequences resulting from such a determination; and it may well be doubted if many of the town meetings, since the enactment of those regulations, could be held to be valid." This doctrine was applied in Granger v. Empire Mill Co., 59 Cal. 678, where a statutory notice was required. So, in Iowa, a presumption that a bill received the requisite vote of two-thirds of the council was indulged, upon the presumption that attends official action. State v. Vail, 53 Iowa, 550, 5 N.W. 709. In State v. Smith, 22 Minn. 218, it was held that: "It appearing that a meeting of the council was held, at which business was transacted which it only had a right to do at a legal meeting, it will be presumed, if necessary, and nothing to the contrary being shown, that all its members were present and acted." So, in Chosen Freeholders of Hudson Co. v. State, 24 N. J. Law, 718, the court of errors held that: "If any proceeding of a municipal corporation be had at an adjourned meeting, it will be presumed, until the contrary appear, that the meeting was rightly adjourned. It is not necessary that the facts showing the proper convening of such corporation should appear in every resolution of the body, or upon the face of the proceedings, when any part is removed by certiorari." Again, in Insurance Co. v. Holmes' Adm'r, 68 Mo. 601, it was held: "When it is shown that a special meeting of the board of directors of a corporation was held, and that a quorum attended, it will be presumed, in the absence of evidence to the contrary, that due notice of the meeting was given to all the...