Sparrow v. State Land Office Com'r
| Decision Date | 06 May 1885 |
| Citation | 56 Mich. 567,23 N.W. 315 |
| Parties | SPARROW v. LAND COM'R. |
| Court | Michigan Supreme Court |
Mandamus.
L.S. Montague and Albert Dodge, for relator.
Moses Taggart and H.C. Denison, for respondent.
The legislature of the state at its session in 1883 passed an act "to provide for straightening and opening the channel of Cedar river and its east and west branches, and making an appropriation of state swamp lands to aid the work, and to authorize the levying of a tax for the completion of the same," etc. Pub.Acts, 133. The first section provided that "for the purpose of aiding in straightening the channel of the Cedar river and its east and west branches and opening, widening, and deepening the same, to the end that the large territory now periodically submerged may be reclaimed, and the sanitary condition of the adjacent lands improved, there shall be, and is hereby, appropriated to the county of Livingston ten thousand acres of swamp lands in the lower peninsula not otherwise appropriated." The second section directed that the lands when selected should be withheld from sale during the time fixed by the act for the completion of the work, and that when the commissioner should certify that one-half the work was completed, one-half the lands should be patented to the county, its assigns or the contractor, and the remainder upon a like certificate of the entire completion of the work. The third section named Spiridon S. Abbott as commissioner under the act, and directed that he give bond in the sum of $30,000 for the faithful performance of his duties as such. By the fourth section the commissioner was to proceed at once to prepare plans and specifications for the work in the townships of Conway, Handy, and Iosco, in Livingston county and of Locke, Leroy, and Williamstown, in Ingham county, or in so many of the towns as he might find necessary, and to submit the same to the board of review provided for in a subsequent section. By the fifth section provision was made for procuring the right of way for the improvement. No question arises upon that in this case. The sixth section provided that "the cost of constructing said improvement, together with the expenses incident thereto in excess of the appropriation hereby made, shall be paid by the lands and property benefited thereby, and by any township, city, or village by reason of the benefit to the public health, and as a means of improving any public highway," and the commissioner was empowered to lay an assessment on the lands benefited for the excess in cost above the appropriation. Section 7 provided that on the completion of the assessment the commissioner should advertise for letting a contract for the work to the lowest bidder, and for making the contract and taking bond for security. By section 8 provision was made for the collection of the assessments by the township collectors, and the moneys when collected were to be held, subject to the order of the commissioner, for the payment of the contract and other expenses pertaining to the improvement. Section 9 declared that the supervisors of the several townships named should, together with the commissioner, constitute a board of review; and section 10 made provision for the return of unpaid taxes. Section 11 required the improvement to be completed within five years from the passage of the act, and gave direction for settlement by the commissioner of the state land-office with the special commissioner, and for cancelment of his bond.
The act was declared to have "passed the senate and house by a two-thirds vote of all the members elect of each house respectively, and ordered to take immediate effect." The special commissioner immediately gave bond under the act and proceeded to the performance of his duties. On July 19, 1883, he made certificate in writing of his determination "that the proposed improvement was necessary and for the good of the public health, and as a means of improving the public highways," and ought to be constructed. A survey, with plans and specifications, was duly made and completed, and was submitted to the board of review and duly approved. The commissioner then went on to obtain releases of the right of way for the improvement, and succeeded except in a few instances where lands were owned by minors. As to such minors, proceedings to appropriate a right of way as for a public use were taken, upon which no question is made now. The commissioner then proceeded to make an assessment of benefits as contemplated by the act, and the assessment was laid before the board of review, and approved by the board, with some changes, after hearing the parties complaining thereof.
On September 3, 1884, the commissioner advertised for letting a contract for the construction of the work, and on October 4, 1884, in pursuance of the advertisement, he received and examined the bids. That of Edward W. Sparrow, who proposed to construct the work for $12,600, in addition to the land appropriated, was the lowest bid, and was accepted, and a contract entered into with him. The commissioner then made an assessment upon the lands benefited for this sum and for the other estimated expenses, which increased the total to $15,000. The whole sum thus assessed, with the exception of about $500, was voluntarily paid by the parties assessed. Sparrow, as contractor, immediately proceeded in the construction of said improvement, and became assignee of the county of Livingston of the right to the lands appropriated therefor. On March 19, 1885, after a considerable proportion of the whole work had been done, he applied, as such contractor and assignee, to the commissioner of the state land-office to have certain designated state swamp lands reserved for sale, according to the provisions of said act. The commissioner, in view of doubts which had been suggested of the constitutionality of the act, declined to make the reservation, and Sparrow thereupon applied for this remedy. The commissioner has answered the application, and submitted the facts to the court for its decision. It is not questioned in the answer that the terms of the act have been so far complied with that the relator is entitled to the relief he seeks if the act itself is valid.
The grounds of supposed invalidity which are advanced in the brief of the attorney general are--First, that the act contemplates a scheme of internal improvement not permitted by the constitution; second, that it is an encroachment upon the constitutional right to local self-government; and, third,--which is perhaps embraced in the other two,--that it provides for an inadmissible scheme of taxation. Upon these, so far as necessary, I shall briefly present my views. The constitution provides that "the state shall not be a party to or interested in any work of internal improvement, nor engaged in carrying on any such work, except in the expenditure of grants made to the state of land or other property." Article 14, � 9. This provision is supposed to be violated by the act under consideration, and the case of Anderson v. Hill, 20 N.W. 549, is relied upon in support of that view. The case referred to arose under "an act to provide for the straightening or otherwise deepening the channel of Dowagiac river, in Van Buren county," approved March 17, 1881. Local Acts 1881, p. 110. That act undertook to empower the legal voters of the townships of Decatur and Hamilton to determine by a majority vote whether a tax should be levied on their townships respectively in aid of the improvement mentioned in the title of the act; the money, if voted, to be "assessed and collected in the same manner as other township taxes are, and expended in connection with other funds and means donated to and provided for such river improvement, after a full investigation of its merits under the supervision of the state board of control of state swamp lands." It appeared in the case of Anderson v. Hill that an appropriation of state swamp lands had been made for the improvement, and that one of the townships had voted a tax, the avails of which were to be paid over to a person with whom a contract had been made for the construction of the work. The plaintiff was a tax-payer in the township, who, having paid the tax under protest, brought suit to recover back the amount paid. The only question involved in the case was whether the tax was legal. It was conceded in that case that the state had authority to make an appropriation of swamp lands for the purposes of the improvement, and that the contract which had been made was a competent one for the state to enter into. The work was spoken of as one of internal improvement, but the lands had been donated to the state to be made use of for the purposes of drainage and reclamation, (9 St. at Large, 519,) and making use of them for the purpose expressed in the act was entirely in the line of the donation. The tax levied upon the townships was, however, held invalid in that case.
In this case the tax is not in question. It is incidentally stated though the statement has no relevancy to the relief asked, that nearly all the persons taxed have voluntarily paid the sums assessed upon them. Persons have an undoubted right in any case, when the state is making a donation of state lands, to give their money in aid of the purpose of the state donation; and it is immaterial in the case that they make the gift in the form of taxes. Their giving or withholding does not in any way affect the right or power of the state to make donation of the lands. It was suggested on the argument that if that part of the act which concerns the tax is void, the whole act must fail. That might be so, perhaps, if the tax were to be the consideration to the state for the...
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