New York Cent. R. Co. v. City of Detroit
| Decision Date | 03 December 1958 |
| Docket Number | Nos. 50,51,s. 50 |
| Citation | 354 Mich. 637,93 N.W.2d 481 |
| Parties | The NEY YORK CENTRAL RAILROAD COMPANY, a Michigan corporation, for itself, and as Lessee, Assignee and Subrogee of The Michigan Central Railroad Company, a michigan corporation, Plaintiff and Appellant, v. The CITY OF DETROIT, a municipal corporation, existing under and by virtue of the laws of the State of Michigan, Defendant and Appellee. The NEW YORK CENTRAL RAILROAD COMPANY, a Michigan corporation, for itself, and as Lessee, Assignee and Subrogee of The Michigan Central Railroad Company, a Michigan corporation, and The Michigan Central Railroad Company, a Michigan corporation, Plaintiffs and Appellants, v. The CITY OF DETROIT, a municipal corporation, existing under and by virtue of the laws of the State of Michigan, Defendant and Appellee. |
| Court | Michigan Supreme Court |
Jack I. Alspector, Grey K. Nelson, Detroit (George H. Wyatt, Detroit, of counsel), for The New York Cent. R. Co., and The Michigan Cent. R. Co., plaintiffs and appellants.
Nathaniel H. Goldstick, Corp. Counsel, Bert R. Sogge, Stephen J. Carey, Julius C. Pliskow, Asst. Corp. Counsel, Detroit, for defendant and appellee.
Before the Entire Bench.
Two actions were instituted by the New York Central Railroad Company as lessee, assignee and subrogee of the Michigan Central Railroad Company and the Michigan Central Railroad Company against the city of Detroit to recover the amounts paid for assessments against railroad property for the paving of 2 portions of John Kronk avenue, formerly known as Southern avenue, in the city of Detroit.
The first segment paved extended from the westerly city limits of Detroit (bordering the city of Dearborn) easterly to Lonyo road. The property of plaintiffs bordered John Kronk on the south side and was assessed for $19,606.20. Appellants paid this sum with interest, and sued to recover with interest. It was stipulated that plaintiffs' failure to institute suit on the first installment was barred by a 30-day statute of limitation, and that the refund covering this portion of the street would be limited to $15,289.60.
The second segment paved extended from Lonyo road east to Central avenue. Appellants' property on the south side of John Kronk was assessed for $14,952.12, and some property on the north side of John Kronk was assessed for $432.16, making a total assessment for this segment of $15,384.28.
Both segments were ordered paved by the common council of the city of Detroit pursuant to section 11, chapter 8, title 4, of the charter of the city of Detroit, as amended, which provides for forced paving of streets and alleys, rather than upon the petition of abutting property owners.
The second portion was paved in the year 1955 following the acquisition of land by condemnation for the opening and widening of John Kronk between Lonyo road and Central avenue.
Appellants brought these actions below pursuant to section 53 of the general property tax law (C.L.1948, § 211.53 [Stat.Ann. § 7.97]) which provides a remedy for the recovery of a tax or special assessment paid under protest, within 30 days after such payment and protest, providing the tax or special assessment is shown to be illegal for the reason alleged in such protest.
It is important to a decision of this case that the language of the protests be set out in full. The reasons for protest with reference to the first assessment, mailed to the treasurer of the city of Detroit on May 22, 1953, were as follows:
'This payment is made under protest because the so-called special assessment is illegal and void for the following reasons, among others:
'1. That the cost of said paving has not been equitably assessed against the lots or parcels of real estate to be benefited by such paving as required by the provisions of amended Sections 2, 3 and 4 of Chapter III, Title VI, of the Charter of the City of Detroit, adopted April 4, 1949, in effect April 5, 1949.
'2. That the property of the Michigan Central Railroad Company abutting that portion of Southern Avenue which has been paved, as covered by said Assessment Roll, has by law been devoted permanently to the use to which it is now put, namely, as a site for an integral part of its common carrier railroad, devoted to the transportation, by railroad trains, of passengers and property in both intrastate and interstate commerce. That the fitness of its said property for such common carrier use is in no wise increased, nor is said property enhanced in value, by the said paving. That said paving was not laid to serve abutting property owners, but rather to take the heavy truck traffic off from other streets. It is to be used as a bridge for the movement of such heavy truck traffic destined between other points in the City and points located beyond, and operated by motor carriers which compete with the Railroad Company. That no part of the cost of said paving should be assessed against the property of the said Railroad Company
'3. That the proposed assessment against the property of the Michigan Central Railroad Company violates the due process and equal protection clauses of the Fourteenth Amendment of the Constitution of the United States.
'4. That, as is shown on the street paving plan for Southern Avenue, prepared in the City Engineer's office, and contained in said assment roll, said Southern Avenue, between the City Line and W. P. L. of Lonyo, was in fact paved, not as an ordinary street or highway, to serve the abutting property owners, but as a through superhighway, to be used as a bridge, for the handling of heavy truck traffic, destined between other parts of the City and points located beyond. Assessing your protestant for the sole benefit of its competitors constitutes a violation of the 14th Amendment of the Constitution of the United States with respect to due process and equal protection and the due process provision of the Constitution of the State of Michigan.
'Said New York Central Railroad Company reserves the right to contest the decision in any manner which may be available for such purposes.
'This payment is made under protest, involuntarily and under duress to save the Company and its properties from liens, distress, seizure and forfeiture, interest, and from such other fines and penalties as may be imposed and exacted.'
The language of the second protest dated December 21, 1955, directed to the city treasurer, was as follows:
'The New York Central Railroad Company and its lessor, The Michigan Central Railroad Company, hereby protest payment of this so-called special assessment for the following reasons, among others:
'1. The paving of John Kronk Avenue is not required as a local or general improvement of the City of Detroit and is therefore beyond the power of said City to undertake under the provisions of its Charter and laws.
'2. The paving of John Kronk Avenue between Lonyo and Central, will not benefit the property of The Michigan Central Railroad Company abutting on the north and south of said highway, which property has by law been devoted permanently to the use to which it is now put, namely, as a site for an integral part of its common carrier railroad, devoted to the transportation by rail of passengers and property in both intrastate and interstate commerce. The fitness of said property for such railroad use is in no way increased, nor is said property enhanced in value, by the paving of John Kronk Avenue. The said paving will not benefit the abutting property owners, but rather will benefit the City of Detroit and its west side residents exclusively, whose other streets will be thereby relieved of the annoyance and hazards of heavy industrial traffic. The said paving will in fact be a detriment to the Railroad Company in that, when completed, it will form part of a 'bridge highway' for the use and benefit of motor carrier competitors of said Railroad. The assessment therefore violates amended Sections 1, 2, 3, and 4 of Chapter III, Title 6 of the Charter of the City of Detroit.
'3. The assessment violates the due process clause of Section 16 of Article II of the Michigan State Constitution, and the equal protection of the law clause of the Fourteenth Amendment to the Constitution of the United States.
'4. The assessment is excessive, unreasonable, arbitrary, fraudulent, inequitable, unfair and capricious, in violation of the Charter and laws of the City of Detroit and the Constitutions of the State of Michigan and of the United States, in that it requires the Railroad to subsidize its trucking competitors, to its detriment and without any gain or return to it or its property.
'Said New York Central Railroad Company for itself and as lessee of The Michigan Central Railroad Company, and The Michigan Central Railroad Company, reserve the right to contest the determination of the Detroit Common Council in this matter in any manner which may be available for such purpose.
'Payment of said special assessment is made under protest, involuntarily and under duress, to save the said Railroad Companies and their properties from liens, distress, seizure and forfeiture, interest, and other fines and penalties as may be imposed and exaced.'
The two actions were consolidated for trial, and a stipulation was entered into agreeing upon a number of facts with respect to the action, but providing for the introduction of evidence in addition thereto on the part of either party.
The lower court found that the plaintiffs were unable to show that no practical benefits whatsover inured to their right-of-way now or in the foreseeable future; that the defendant in the making of this assessment followed the law and the city charter provision; that the assessments as they stand are perfectly proper and within the authority of the defendant city of Detroit. The lower court in its opinion found that that which benefits the local community and especially develops and improves the locality brings...
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