Scotten v. City of Detroit

• Citation: 106 Mich. 564,64 N.W. 579
• Court: Supreme Court of Michigan
• Decision Date: 01 October 1895
• Parties: SCOTTEN v. CITY OF DETROIT ET AL.

64 N.W. 579

106 Mich. 564

SCOTTEN v. CITY OF DETROIT ET AL.

Supreme Court of Michigan

October 1, 1895

Appeal from circuit court, Wayne county, in chancery; William L Carpenter, Judge.

Bill by Daniel Scotten against the city of Detroit and others to enjoin the collection of an assessment. The bill was dismissed, and complainant appeals. Affirmed.

John D. Conely, for appellant.

John J Speed, for appellees.

MONTGOMERY J.

This is a bill filed to restrain the collection of an assessment levied by the common council to pay for the opening of Toledo avenue. It is contended that the proceedings for the opening of this street were fatally defective, and without jurisdiction, and that, this being so, the assessment of complainant's property is without authority of law. The proceedings were taken under the general statute providing for the taking of property for public use in cities and villages, being chapter 83, How. Ann. St. Section 2 of the act provides that: "Proceedings may be commenced and prosecuted under this act whenever the common council *** shall have declared a public improvement to be necessary, and shall declare that they deem it necessary to take private property, describing it, for such public improvement designating it, and that such improvement is for the use or benefit of the public. They shall by resolution direct the city attorney to institute the necessary proceedings on behalf of the municipality in the proper court, to carry out the object of the resolution in regard to taking private property by the city, village or county." The resolution adopted by the common council in this case did not receive the signature of the mayor, and the evidence shows that it was not presented to the mayor for his signature, as is required by the city charter in case of resolutions providing for the expenditure of money. We assume for the purposes of this case that the resolution in question required the signature of the mayor. The question then arises whether the determination of the recorder's court is conclusive upon the question of whether the antecedent steps were properly taken. This involves an examination of the act in question. By section 2, jurisdiction is conferred upon the circuit court for the county, and, in case of cities, upon the recorder's court, in all cases brought under the act. Section 3 provides that the city clerk shall make, and deliver to the attorney, a copy of the resolution provided by section 2, duly certified, and it shall be the duty of such attorney to prepare and file, in the name of the city, in the court having jurisdiction of the proceedings, a petition signed by him in his official character, and duly verified, to which petition a certified copy of the resolution of the common council shall be annexed, which certified copy shall be prima facie evidence of the action taken by the common council. "The petition shall state among other things, that it is made and filed as commencement of judicial proceedings by the municipality, in pursuance of this act, to acquire the right to take private property for the use and benefit of the public. *** The petition shall also state that the common council *** has declared such improvements to be necessary, and that they deem it necessary to take the private property described, in that behalf, for such improvement, for the use or benefit of the public." Succeeding sections provide for the issue of summons, and for service. Section 8 provides that on the return day of the summons, or on some subsequent day to which the proceedings were adjourned, if no sufficient cause to the contrary has been shown, the court may order the impaneling of a jury. Section 14 provides for the determination by the jury of the necessity for the proposed improvements. Section 16 provides that the verdict of the jury may be set aside by the court, and a new trial ordered, as in civil cases at law in the circuit courts of this state. Section 17 provides that motion for new trial shall be made within two days, and that if such motion is not made the court shall enter an order or judgment confirming the verdict of the jury, and such judgment or confirmation, unless reversed by the supreme court, shall be conclusive or final as to all persons interested therein. Section 28 provides that the common council shall not have power to discontinue proceedings under this act after rendition of the verdict of the jury. Section 15 of the act provides for an assessment of property for benefits from the opening of the street.

It is apparent, we think, that the legislative purpose was to provide for a judicial determination of the questions involved and stated in the petition. While it is true that the common council, in the first instance, is the body to determine the necessity for instituting the proceedings, it is clearly contemplated that the question of whether this action by the council has been had shall be open to determination by the court, for it is provided that the petition shall set forth and state the fact of the adoption of such resolution. It is one of the questions put in issue by the petition, which is the pleading in the case, and it is only in case no sufficient cause to the contrary has been shown that the court proceeds to impanel a jury; and, when the judgment is finally entered by the court, it is declared that it shall be final and conclusive as to all persons interested therein. If this is a judicial proceeding, can it be said that it is open to attack by any party in a collateral proceeding? We think not. We think, when the judgment was pronounced by the court, this bound the city, and compelled the authorities to make compensation to the owners of the land. The power to dismiss the proceedings voluntarily by the city terminated at the rendition of the judgment. Where the owner of the property has the opportunity to have a hearing, we think the determination of the court that the proceeding is properly instituted is conclusive in all collateral proceedings. See Lewis, Em. Dom. � 605, and cases cited; Van Fleet, Coll. Attack, 62; Dyckman v. Mayor, etc., 5 N. Y. 434; Borgman v. City of Detroit (Mich.) 60 N.W. 696; Lehmer v. People, 80 Ill. 601.

It is urged by counsel that, while the judgment may be good as against the respondents in that proceeding, it is not good as against the taxpayer. But this statute provides for two different proceedings,-one proceeding by which the street is to be opened,-and in this proceeding in the court the city and the owner of the land sought to be taken are parties. The other proceeding is by the assessment of property benefited by the opening, for the benefits conferred. The first proceeding has been had. The highway is opened. This is accomplished in fact and in law. It is not open to the city to assert that its legal representative acted without authority, nor...