Scofield v. City of Lansing

• Decision Date: 20 October 1868
• Citation: 17 Mich. 437
• Court: Michigan Supreme Court
• Parties: Sylvester G. Scofield et al. v. The City of Lansing

17 Mich. 437

Sylvester G. Scofield et al. v. The City of Lansing

Supreme Court of Michigan

October 20, 1868

Heard October 17, 1868 [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Appeal in chancery from Ingham circuit.

The bill in this cause was filed to restrain the city of Lansing from collecting a tax for grading a street fronting complainants' premises.

The bill set forth that the complainants, fifty-nine in number, were owners of certain real estate in the city of Lansing, lying adjacent to and fronting on Cedar street, and a road in continuation thereof; and that they petitioned to the common council of said city to grade a certain portion only of said street. The following proceedings of the common council sufficiently present the facts upon which the case was decided as to the legality of the assessment:

On the 20th day of February, 1865, as appears from the minutes of the common council of said city of Lansing, the following preamble and resolutions were adopted:

"Whereas, A majority of the resident property holders living on Cedar street, have petitioned the common council for the grading and side-walking of said street; and,

"Whereas, The same is deemed by the common council to be a necessary public improvement to grade said street from the north line of lot five, block two hundred and forty-four, to the point on said street eight rods south of the south line of Kalamazoo street, and that the estimated expense of said improvement is about $ 2,500, and that the property to be benefited by such public improvement is all the property lying on or touching said street, being blocks and parts of blocks two hundred and thirty-seven, two hundred and thirty-eight, two hundred and forty, two hundred and forty-one, two hundred and forty-four, two hundred and forty-five; therefore, be it

"Resolved, That the council will cause said grading to be done, and that the necessary expense of grading said street shall be assessed as estimated, by the commissioners appointed, upon all lots or parts of lots lying on said street, or benefited thereby, being blocks or parts of blocks two hundred and thirty-seven, two hundred and thirty-eight, two hundred and forty, two hundred and forty-one, two hundred and forty-four, and two hundred and forty-five, in the city of Lansing, according to the recorded plat thereof; and be it further

"Resolved, That the estimates and assessments for grading Michigan avenue and Cedar street shall be increased or diminished as in the opinion of the common council necessity demands or equity may require."

The committee of said council also reported an order appointing commissioners to make an assessment to defray the expenses of the aforesaid public improvement, with the names of the commissioners left blank. On motion, the blanks were filled with the names of A. F. Weller, M. Hudson and George Grove. Order passed as filed.

May 22, 1865, A. W. Williams, chairman of the committee on streets, proposed a resolution changing the profile of the grade of said Cedar street. In this resolution the grade is referred to as "from Franklin street to a point four hundred feet south of Kalamazoo street."

Referring to said map, it appears that the grade, as there referred to, is some three-quarters of a mile more than that adopted by the resolution of February 20, 1865. June 5, 1865, the committee on streets reported upon bids for grading Michigan avenue and Cedar street. The bill charged that as to Cedar street the bids only covered the grade from the south line of lot five, block two hundred and forty-four, to a point eight rods south of Kalamazoo street. June 12, 1865, the common council of said city of Lansing passed the following resolution:

"Resolved, That the commissioners to assess the amount of the cost of grading Cedar street from the south line of lot five, block two hundred and forty-four, to a point four hundred feet south of Kalamazoo street, be and hereby are authorized and instructed to assess the amount of the estimated expense upon the whole of the property lying on said street, the aggregate not to exceed $ 5,540, and said commissioners be hereby required to report said assessment by the 9th day of January."

On the 18th day of September, 1865, the following resolution was passed:

"Resolved, That, in conformity to the conditions of his contract, the contractor for grading Michigan avenue and Cedar street be and is hereby authorized and instructed to proceed with the least possible delay to grade Cedar street from Mrs. Elder's north line to a point two hundred feet south of Kalamazoo street, in accordance with the adopted profile of said street."

Referring to the description given of the property assessed to Calista Elder in exhibit "A," hereto annexed, the bill showed that Mrs. Elder's north line is the north line of lot six, block two hundred and forty-four.

October 23, 1865, the said common council passed the following resolutions:

"Resolved, That the order passed February 20, 1865, appointing four commissioners to assess a certain portion of Cedar street, be rescinded.

"Resolved, That the contractor, Mr. Shine, be instructed to complete the grade of Cedar street, not already ordered, from Franklin street to Cedar river.

"Resolved, That the committee on streets are hereby authorized and instructed to procure a survey of Cedar street, from a point two hundred feet south of Kalamazoo street, to the south city limits."

October 31, 1865, as appears from the minutes of said common council, Alderman A. W. Williams presented an order for the grading of Cedar street from Cedar bridge to Franklin street, and appointing D. M. Bagley, L. D. Preston and C. Tracy as commissioners to assess the expense of the same. Adopted by yeas and nays.

November 6, 1865, these last mentioned commissioners made their report. November 22, 1865, the assessment roll presented by said commissioners was unanimously adopted.

The bill further charged that this assessment roll was for the sum of $ 2,500, and that said amount was duly collected from complainants and the other owners of lands specified in the order of October 31, hereinbefore set forth, and paid into the city treasury.

September 6, 1866, as appears from the minutes of said common council, "Alderman Jones presented an order appointing D. M. Bagley, E. Longyear, and S.W. Wright, commissioners to make an assessment to defray the expense of grading Cedar street, which was adopted."

September 17th, 1866, as also appears from the said minutes, Alderman Whitney moved to amend the order appointing commissioners to defray the expense of said Cedar street, by inserting the following after the word street: "From Franklin street south to the southern terminus of said Cedar street," and the lots and parts of lots and lands lying and fronting on the street running south from Cedar street to the south line of the city.

Copies of the assessment rolls and maps, representing Cedar street and the adjacent property, were annexed as exhibits. The bill charged that the action of the council was illegal; that it created a cloud upon the title to their said lots, and prayed for an injunction.

The case was heard on demurrer. The injunction previously allowed was dissolved, and the bill was dismissed.

Decree of the court dismissing the bill, reversed, with costs, and the demurrer overruled, and the record remitted to the court.

S. F. Seager, and J. W. Longyear, for appellants:

1. The action of the common council was clearly irregular and unauthorized in making the assessment.

a. No estimate of the expense of the proposed improvement was ever made.

b. There was no determination as to whether the whole or any portion of the expense should be assessed on the owners or occupants of lands benefited by the improvements.

c. There was no designation of the portion of the city that would be benefited.

The assessment made under the resolution of February 20th, 1865, was collected in full. The present assessment rests on the resolutions of September 10th, 1866, and September 17th, 1866, which are not in compliance with §§ 9, 10, Sess. L. 1865, p. 448, in a single particular.

2. The treasurer having returned the assessment roll, and the amounts assessed to the complainants having been placed on the general tax roll of the several city wards, and the warrants of the supervisors attached to the rolls, the taxes constitute a cloud on title: Sess. L. 1865, page 451.

3. This court has virtually held by a uniform train of decisions that complainants' proper remedy is by injunction.

In Palmer v. Rich, 12 Mich. 417, approved in Grundy's Case, 13 Id. 341, equity jurisdiction in case of cloud on title arising from illegal tax is expressly affirmed.

4. The bill is not multifarious for misjoinder of parties.

The objection will not be entertained when the justice of the case does not absolutely require it.

The interest of the parties is a common one. "The object of the bill is to avoid the payment of the assessment in question, and every individual assessed has, in that respect, a common interest: 2 Sim. and Stuart, 67; 1 M. and C., 623, and the cases cited.

To dismiss the bill on this ground must give rise to great multiplicity of suits, as each complainant would be driven to a separate action at law.

S. L. Kilbourne, and A. E. Cowles, for defendant:

The bill is multifarious. Fifty-nine complainants, owning or claiming to own fifty-nine separate, distinct parcels of land, not in common, but severally, have joined together fifty-nine separate causes of action to be passed upon by the court in one comprehensive suit: Story's Eq. Pl §§ 279, 289, 530, 540, and notes; Daniells' Ch. Pl. and Prac., 342, and...