Motz v. City of Detroit

• Citation: 18 Mich. 495
• Court: Michigan Supreme Court
• Decision Date: 12 July 1869
• Parties: Frederick Motz and 13 others v. The City of Detroit et al

18 Mich. 495

Frederick Motz and 13 others v. The City of Detroit et al

Supreme Court of Michigan

July 12, 1869

Heard April 28, 1869 [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Appeal in chancery from Wayne circuit.

The bill in this cause was filed by fourteen tax payers to restrain the city of Detroit, through its officers, from enforcing an assessment sought to be enforced against their lots fronting on Grand River street, for paving the same with "Nicholson pavement."

The bill set forth that the said lots were unequal in frontage and depth, and that several were irregular and triangular in form, that the street fronting them was of unequal surface and required much excavation and filling up, and that some of said lots were vacant and some highly improved.

That the said pavement was a patent and owned by the contractors and was, therefore, a monopoly, and hence there could be no "lowest bidder" under the city charter.

That the construction of said work was defective in several material respects.

That each of said complainants were charged in the assessment rolls (copies of which were attached to the bill), with the gross cost of the expense of the pavement in front of each lot, without reference to the amount paid by any other lot.

The bill further charged that the common council had not complied with the provisions of the charter, and the charter itself was unconstitutional.

A perpetual injunction was prayed for.

The answer denied that the said pavement was a monopoly, or that the work was improperly executed. That the common council having accepted the work, the complainants had no right to object; and, further, that eight of the complainants having signed a petition requesting the common council to pave said street, and having made no objection during the progress of the work, were estopped from asking relief.

From the testimony of the city surveyor, who prepared the several assessment rolls, it appeared they were made as follows:

1. The expense of the paving from the line of one cross street to another was assessed as follows:

The actual cost of the paving immediately in front of a lot to the center of the paved street was assessed upon said lot.

2. The expense of the grading between the same lines was computed in gross, and then assessed upon the lots within said lines according to their frontage.

3. The expense of the paving, grading, curb-stones, etc., of the spaces produced by the intersections of streets with said Grand River street was assessed as follows:

a. If the street crossing Grand River street was equal in width on both sides, then one-fourth of the cost of paving, etc., of the spaces produced thereby was assessed upon one-fourth of the superficial feet of the block adjoining the respective four angles.

b. When the width at the point of entrance and exit of a cross street varied, then the cost of the space produced on either side of Grand River street to its center would be divided equally between one-fourth of the two adjoining blocks on the respective sides of the street.

c. When a cross street entered Grand River street, but did not cross it, then the cost of paving, etc., of the space produced by it to the center of Grand River street would be assessed equally upon one-fourth of the superficial area of blocks adjoining said portion of said interior spaces so paved.

d. When a block was triangular, then the expense of the one-fourth of the interior space would be assessed upon one-third of the superficial area of such triangular block; but if the adjoining block was not triangular, then the other half of the cost of said space would be assessed upon one-fourth of it.

The following is the provision of the city charter under which said assessments were made:

"The common council shall have power to grade, pave, repair and otherwise improve the highways, streets, interior public spaces," etc., "and to provide for paying the costs and expenses thereof by assessment on the owner of the lot or premises in front of or adjacent to which such highways, streets, etc., may be directed to be graded, paved, repaved or otherwise improved: Provided, That the cost of such grading, paving, etc., such interior or public spaces shall be assessed to each block in such proportion as the common council shall deem just and equitable: Provided, further, that each block shall only be assessed to the center of such interior or public space."

The case was heard upon the pleadings and proofs, and a perpetual injunction was granted.

Decree reversed.

A. D. Fraser and Wm. Jennison, for complainants:

1. Of the fourteen complainants, six signed a petition to the common council to cause Grand River street to be paved; but not with any specific kind of pavement.

The right of petition is a privilege common to every citizen, and carries with its execution nothing more than the expression of a desire that the legal authorities should gratify a reasonable wish within the legal power. The request assumes the existence of a legal power and a legal exercise of it.

It was for the city to determine whether it had the power.

There is no privity of contract--no principle of agency involved. The city could order the paving without any petition. This act of petitioners, therefore, created neither a legal nor equitable bar to their raising any legal objection to the tax: City Charter, p. 50, § 14, and p. 120.

2. The contract entered into between Smith & Cook and the city, among other requirements, prescribed:

1st. That the "best of materials" should be used.

2d. That "beach or bank-sand or gravel" should be used for the road bed.

3d. That the "spaces between the blocks" should be filled with "clean gravel and hot coal tar," and that the gravel should "be applied thoroughly dried and heated enough not to chill the tar."

The breach of these conditions are alleged as a violation of said contract.

The testimony tends to show:

a. That the sand used did not comply with the specifications.

b. That the gravel was not applied hot when put into the spaces between the blocks.

The defendants admit that no artificial process was adopted to dry the gravel, but insist that the sun dried the gravel sufficiently.

The contract required that the gravel should be thoroughly heated when applied, and it is not for the defendants to urge that some other mode was equally as good. Besides, Nicholson pavement is a patent, and cannot be varied.

The failure to construct said pavement according to the terms of the contract is a good defense to the enforcement of the tax.

3. The acceptance and approval of the work by the city concludes the parties to the contract; but no others. The complainants were not parties.

When the city seeks to deprive the citizen of his property to pay for such improvement, he has a right to ask if the proper steps have been taken to justify the exercise of this sovereign power; and this involves an inquiry into the mode of performing the work. This is the first time that he could exercise the right.

If the work was imperfect, the owner of land adjoining it was liable to pay for its repair, or repaving: City Charter, p. 8.

4. The chief question is, was the assessment complained of made in accordance with law?

Seventeen of the complainants' lots front upon Grand River street.

Of these, eleven lots are triangular, and of irregular form, while three lots belonging to the other complainants front upon side streets.

These lots vary in frontage, in depth and in superficial feet.

Some are vacant and some have valuable buildings upon them.

In addition to these diversities, the grading in front of the several lots varies in a very great degree.

Then, again, many of them extend through to other streets, and thus have two fronts.

While again others (owing to the angle at which certain streets cross Grand River street upon one side of the street) have no lots opposite them to bear a share of the paving, on account of interior spaces formed by irregular streets.

The blocks which give rise to these diversities are more irregular than the lots.

There is, perhaps, no main thoroughfare in this city, which presents such a strange variety of form and surface of both lots and blocks as does this one.

The resolution of the common council was to "pave Grand River street from First street to Eighth street."

Mr. Robinson, the city surveyor, who prepared the assessment rolls, testifies that several distinct principles were applied in preparing them, viz.:

First. The expense of the paving from the line of one cross street to another was assessed as follows:

The actual cost of paving immediately in front of a lot to the center of the paved street, was assessed upon said lot.

Second. The expense of the grading between the same lines, was computed in gross, and then assessed upon the lots within said lines according to their frontage.

Third. The expense of paving, grading, curb stones, etc., of the spaces produced by the intersection of streets with said Grand River street was assessed as follows:

a. If the street crossing Grand River street was equal in width on both sides, then one-fourth of the cost of paving, etc., of the spaces produced thereby was assessed upon one-fourth of the superficial feet of the block adjoining the respective four angles.

b. When the width at the point of entrance and exit of a cross street varied, then the cost of the space produced on either...