Smith v. Mayor, etc., of City of Sagniaw
| Citation | 45 N.W. 964,81 Mich. 123 |
| Court | Supreme Court of Michigan |
| Decision Date | 06 June 1890 |
| Parties | SMITH v. MAYOR AND COMMON COUNCIL OF THE CITY OF SAGINAW. |
Petition for mandamus.
Marston, Cowles & Jerome, for relator. Frank E. Emerick, City Atty., (Hanchett, Stark & Hanchett, of counsel,) for respondents.
This is a proceeding by mandamus to determine the constitutionality of Local Act No. 455, Local Acts 1889 consolidating the two cities of East Saginaw and Saginaw City into one municipality. The allegations in the petition are as follows: (1) That relator is a resident and tax-payer of Saginaw. (2) That the first representative district of Saginaw county is composed of the present city of Saginaw and the townships of Carrollton and Zilwaukee, and the second district of the city of East Saginaw. (3) That the city of Saginaw is duly organized, with customary officers, elected in April, 1889, to hold for one year. (4, 5) That, in consequence of agitation in regard to consolidation of Saginaw and East Saginaw, a vote of tax-paying electors was taken in January, 1889, resulting in 957 against consolidation, and 44 in favor of it. (6) That the legislature of 1889 passed Local Act No. 455, to consolidate the two cities. (7) That said act provided that the common councils of the two cities should, on or before the first Monday in February, 1890, designate places of registration and polling for an election of officers to be held under said act on the first Monday of March, 1890, to put said consolidated city government in operation, and that said common council of Saginaw has passed a resolution in accordance with said act, and intends to hold no election under the present charter of Saginaw. (8) That the boundaries of said consolidated city, as fixed by said act, do not include the townships of Carrollton and Zilwaukee, or either of them, and said act provides that it should not change in any respect the boundaries of said first and second representative districts, or the manner of electing representatives therein. (9) That said act makes it the duty of the council of the consolidated city to build a city-hall on a site within certain boundaries therein fixed, and to keep all the city offices there, giving authority to issue $225,000 bonds for said purpose. (10) That said act divides the said consolidated city into two taxing districts coterminous with the old cities, for purposes of sewers, care of streets, sidewalks, ditches, and water-works. (11) The debts of the old cities are by said act to be assessed upon said taxing districts respectively, save certain bonds of the old city of Saginaw, which are to be assumed and paid by the new city. Said provisions enumerated in the last three paragraphs are made fundamental conditions to said consolidation, and unchangeable, save in a way therein described. (12) Said act number 455 is unconstitutional and void- First, as being in violation of sections 3 and 4 of article 4 of the constitution of said state; second, that said act in imperatively requiring said consolidated city to issue its bonds, and to select and purchase a particular site, and erect a city-hall thereon, is unconstitutional and void, and that it violates the right of local self-government.
The answer denies the right of relator to maintain the petition, because the subject-matter affects all the people and public of the two Saginaws, and also the public of the state at large, and he has not applied to the attorney general to institute proceedings, nor has the attorney general refused to act in the premises, and because the respondents have no power to rescind the action complained of, and have no power or control over the officer in charge of the registration and election, and the object sought is not to set the respondents in motion, but to restrain and prevent their action, for which mandamus is not the appropriate remedy. The answer insists that the act is constitutional, and then replies to paragraph 5 of the petition, in the following language: "These respondents say that the cities of Saginaw and East Saginaw are situated upon opposite sides of the Saginaw river. Between them, and leading from one to the other, are four railroad bridges, four highway bridges, and two lines of street cars. For many years and nearly from the time of their incorporation as cities, they have been rivals, and their rivalry has retarded and obstructed the growth and prosperity of each. It has affected both the business and social relations of the people of the two cities, to their great annoyance, and to the derogation of the amenities and enjoyments of life in the two communities. It came to be seen that the way to overcome this unfortunate state of affairs was to make one city of the two, and thereby make it the common interest of all to promote the growth and prosperity of one corporation and one community. With this view, when the act of June 21, 1887, was passed, by which there was added to the city of Saginaw a small territory situated on the west bank of the river, and between the two cities at the northern or lower portion of the city of Saginaw, and which was largely owned by residents of East Saginaw, who opposed the attaching of such territory to the city of Saginaw, the legislature adopted in such act the provisions which were intended to point the way for and set in movement measures for the consolidation of the cities.
Acting under the suggestion of these provisions, the common council of each city appointed a committee to draft a charter for the consolidated city, to be submitted to the legislature. The result of the work of such committee was the preparation of a charter, which was wholly unsatisfactory to the people of the city of Saginaw, and after the same had been prepared the action was taken by the common council, by which the expression of the tax-paying electors was made on the 3d day of January, 1889. The vote was an expression on the proposed scheme of consolidation under such charter, and was not an expression of the tax-paying electors of the city on the subject of the policy or desirability of consolidation. Afterwards, committees of citizens from the two cities met and drafted a charter designed to provide for consolidation, and to remove the objections which were found to exist in the former draft. This draft was submitted to the legislature, and became the act of June 28, 1889. The provisions relating to the location and construction of a city-hall, above referred to, were incorporated into the charter for the express purpose of meeting the wishes of the people of the city of Saginaw on the subject of those provisions. Six of the present twelve aldermen of the city, and the mayor of the city, were elected at the April election of 1889. Upon being informed of the service upon the mayor of the petition in this proceeding, the common council, as representative of the city, at a meeting of which eleven of the twelve aldermen composing the council were present, adopted resolutions, by a vote of ten for and one against, approving the act of consolidation. The alderman who was absent on the occasion of the adoption of the resolutions would have voted for their adoption had he been present."
1. It is evident that the relator has no special or specific interest in the issue here involved. He has only the interest which is common and general alike to all the inhabitants of the city, numbering many thousands. It is not, and never has been, the policy of the law to permit private individuals the use of the writ of mandamus against public officers except in cases where they had some special interest, not possessed by the citizens generally. The rule laid down by Chief Justice SHAW in Re Wellington, 16 Pick. 87, is cited with approval by this court in People v. Inspectors, 4 Mich. 187, viz.: "The general rule of law is that a private individual can apply for a writ of mandamus only in a case where he has some private or particular interest to be subserved, or some particular right to be preserved or protected, by the aid of this process, independent of that which he holds in common with the public at large; and it is for the public officers exclusively to apply, where public rights are to be subserved." In People v. Regents, Id. 98, the relator had no interest other or different than that of any other citizen of the state, and the court held that the action of the attorney general was necessary. This is the established rule in this state. People v. Green, 29 Mich. 121; People v. Supervisors, 38 Mich. 421; People v. State Auditors, 42 Mich. 422, 4 N.W. 274. It is also the rule in other states. Bobbett v. State, 10 Kan. 9; Turner v. Commissioners, Id. 16; Scripture v. Burns, 59 Iowa, 70, 12 N.W. 760; State v. Eberhart, 15 N.W. 320; Heffner v. Com., 28 Pa. St. 108. The result of this holding...
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