People ex rel. Board of Park Commissioners of Detroit v. Common Council of Detroit

Decision Date28 October 1873
Citation28 Mich. 228
CourtMichigan Supreme Court
PartiesThe People on the relation of the Board of Park Commissioners of Detroit v. The Common Council of Detroit

Heard October 21, 1873; October 22, 1873

Application for mandamus. Denied.

Mandamus denied as prayed for.

C. I Walker, G. V. N. Lothrop, Theodore Romeyn and J. Logan Chipman, for the relators.

F. A. Baker, Henry M. Cheever, William A. Moore and Ashley Pond, for the respondents.

Cooley, J. Christiancy, Ch. J., and Graves, J., Campbell, J. concurred.

OPINION

Cooley, J.

The act relating to a public park for the city of Detroit, approved April 15, 1871 (Laws 1871, Vol. 2, p. 1322), created a board of park commissioners, with power and authority to adopt plans for a public park, or boulevard, or both, with the necessary avenues or approaches thereto, for the use of the city of Detroit, and for those purposes to select the needful lands either wholly or in part, within the city or any of the adjacent townships, and to make conditional contracts therefor subject to ratification by the common council and a vote of a citizens' meeting. All purchases for the purpose were limited to five hundred acres, at a cost of not more than two hundred thousand dollars. The common council was authorized to issue bonds to make the necessary purchases, after their proposition for the purpose had been submitted to and approved by a citizens' meeting, and the commissioners were authorized to institute proceedings in the circuit court for the county of Wayne for the appropriation of lands which they could not acquire by purchase. After the lands were acquired, the commissioners were to cause estimates to be made and laid before the council annually, of expenditures proposed for the improvement, embellishment and keeping of the grounds, and the common council were required to provide for such expenditure by an issue and sale of bonds, not exceeding fifty thousand dollars in any one year, as it might think proper, but subject to approval by a citizens' meeting. The act named six prominent citizens of Detroit as the first members of the commission, who were to be divided by lot into three classes, the first to hold office for one year, the second for two, and the third for three years, and their successors were to be appointed by the common council.

The commissioners were duly organized into a board as provided by the act, and proceeded in the discharge of their duties. Some question having been made regarding the power of the Legislature to appoint them, the attorney general instituted proceedings by quo warranto against one of their number, to determine this question, and it appearing that the official authority of the commissioners had been fully recognized by the common council, in whom, with the mayor, was vested the general power to appoint, this Court held that though the appointment could not originally have rightfully been made by the State, yet that the recognition of their official character by the appointing power without objection or dissent, was sufficient to constitute them city officers.-- Attorney General v. Lothrop, 24 Mich. 235. Subsequent to this the common council filled two vacancies occurring in the board, by confirmation of the mayor's nominations.

We are informed by the petition in this case that some time in 1871 the park commissioners selected what they deemed the most eligible site for a park, and entered into conditional contracts for the same on favorable terms; that they reported their action to the common council, and that body ordered the proposition for the issue of the bonds necessary to complete the purchase, to be submitted to a citizens' meeting. Two successive meetings were held to consider it, but there was so much of noise, confusion and violence at these meetings that no intelligent discussion could be had, and no result was reached.

By an act approved March 14, 1873 (Laws 1873, Vol. 2, p. 100), it is supposed much larger powers have been conferred upon the board. They are permitted to "acquire by purchase" lands not exceeding in cost three hundred thousand dollars, and the act declares that whenever the board shall locate the site of a park or boulevard, or both, and shall make such location known to the common council, and lay before that body a statement in writing of the cost of the land acquired by the purchase, and an estimate in writing of the cost of the lands necessary to be acquired which the board has been unable to purchase, the common council shall provide money for such purposes, not exceeding the amount limited by the act, by the issue and sale of city bonds. It will be seen from this that the board of park commissioners are to have discretionary and unrestricted power in the location of the park or boulevard, or both, and in determining the amount of debt the city shall incur for the purpose, within the limits prescribed by the act, and the only discretionary authority left with the council is, that the act authorizes that body to determine the rate of interest on the bonds, not exceeding seven per cent., the sums in which they shall be issued, and the time when they shall be payable, which shall be not less than thirty, nor more than fifty years.

Acting under this legislation, the board reported to the common council on August 13, 1873, that they had located the site of a public park on Jefferson avenue, three miles from the city hall, containing about four hundred and fifty acres; that they had purchased three hundred and seventy-five acres of the four hundred and fifty selected, at a cost of two hundred and twenty-nine thousand one hundred and forty dollars and fourteen cents, and estimated the cost of acquiring the remainder at about seventy thousand dollars, and they requested that the common council would authorize the issue of bonds to an amount not exceeding three hundred thousand dollars, to pay the cost. It is not necessary to state in detail the proceedings of the council on this report; it is sufficient to say that a resolution that city bonds to the amount of three hundred thousand dollars, payable in thirty years, with interest at seven per centum, has failed to receive the approval of that body. And the board of park commissioners now apply to this Court for the writ of mandamus, directed to the common council, commanding that body to provide money to the amount of three hundred thousand dollars, for the purpose of purchasing a site for a public park for said city, in accordance with said report, by the issue and sale of city bonds in compliance with the provisions of the act last aforesaid.

Sufficient has been stated of the legislation on the subject to show that all action of the commissioners, up to the time when an issue of bonds is ordered by the common council, is provisional only, and that no debt is contracted by the city, or legal obligation assumed, until affirmative action is taken by that body upon the report of the commissioners. Why this action was required at all, if the council were to have no important discretionary power in the premises, it is needless for us to speculate, since both parties concede that the purpose of the last act was to take away the discretionary power that was vested in the council by the first, and that suitable and peremptory language has been employed for that purpose. And we shall consider this case upon the assumption that the parties have correctly construed this legislation.

The failure, then, of the common council to comply with the request of the board of park commissioners has, in their opinion, imposed a public duty upon the judicial department, which we must perform on the facts being properly reported. That duty--to state in nakedly--is, by the compulsory process of this Court, to coerce the city of Detroit into entering into contracts involving a debt for a very large sum for an object purely of local concern, which the legislative body of the city has refused to make.

The proposition that there rests in this or any other court the authority to compel a municipal body to contract debts for local purposes against its will, is one so momentous in its importance, and so pregnant with possible consequences, that we could not fail to be solicitous when it was presented that its foundations should be thoroughly canvassed and presented, and that we might have before us, in passing upon it, all the considerations that could be urged in its support. In this our desire has been gratified to the utmost; as it is seldom a case receives so thorough and exhaustive an examination by counsel at once so able and apparently so thoroughly convinced of the correctness of their conclusions. And if we fail to notice in our judgment all the considerations that may possibly bear upon the subject, it will not be because they were not brought to our attention and pressed with ability and force, but because others seem to us conclusive.

The general proposition we have stated may be said to be deduced by the relators from several minor propositions, which we shall endeavor to condense and state in substance as follows:

First. The Legislature creates municipal corporations, defines and limits their powers, enlarges or diminishes them at will, points out the agencies which are to exercise them, and exercises a general supervision and control of them as it shall deem proper and needful for the public welfare.

Second. The Legislature confers upon the bodies it has created the power to make contracts and to levy taxes for their performance, but in matters of public concern it is not limited to conferring a discretionary power, but may exercise compulsory authority where the local officers or agencies neglect or refuse to discharge their public duty in providing for...

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