Steckert v. City of East Saginaw

• Decision Date: 27 October 1870
• Citation: 22 Mich. 104
• Court: Michigan Supreme Court
• Parties: Jacob Steckert et al. v. The City of East Saginaw et al

22 Mich. 104

Jacob Steckert et al. v. The City of East Saginaw et al

Supreme Court of Michigan

October 27, 1870

Heard October 25, 1870; October 26, 1870.

Appeal in chancery from Saginaw circuit.

The bill in this cause was filed by Frederick A. Koehler, Jacob Steckert, Jay S. Curtis, John H. McFarlin, Frederick Hubert John McKay, John Gallagher, William Gallagher, William Lloyd Freeman G. Casey, DeWitt C. Gage, Ashael Jackson, Sarah L Warford, Michael Jeffers, Solomon B. Bliss and Moses B. Hess in the circuit court for the county of Saginaw, in chancery, against the city of East Saginaw, Charles V. DeLand, controller, and Gilbert R. Chandler, marshal of the city, to restrain the collection of an assessment levied by the city authorities for a public improvement, by paving Washington street with the Nicolson pavement. A preliminary injunction was granted on filing the bill. After the cause was at issue upon answer and replication, and before the proofs were taken, Frederick A. Koehler was permitted to discontinue by consent. Proofs were taken, and the cause was heard upon pleadings and proofs, and a decree entered making the injunction perpetual against proceeding to enforce the collection of the assessment, from which the defendants appeal to this court.

Decree of the court affirmed, with costs.

John J. Wheeler and John Moore, for complainants.

William Gillett and Wm. L. Webber, for defendants.

Cooley, J. Campbell, Ch. J. and Graves, J. concurred. Christiancy, J. did not sit in this case.

OPINION

Cooley J.:

This is a bill to restrain the collection of an assessment for paving Washington street, in the city of East Saginaw, with what is known as the Nicolson pavement. The complainants are owners of lots in said city upon which the assessment is a lien, and they ask for a perpetual injunction against its collection, upon the ground that the proceedings to levy it have not been in accordance with the charter of the city, which prescribes the several steps to be taken in such cases.

The first ground of alleged invalidity in the proceedings is that the several votes in the common council ordering the improvement made, directing a contract therefor and the levy of an assessment for payment of the expense thereof, were not taken by ayes and noes as the charter requires.

The provision of the charter on this subject is that "Whenever required by two members, the votes of all the members of the common council, in relation to any act, proceeding or proposition, had at any meeting, shall be entered at large on the minutes; and such votes shall also be entered in relation to the adoption of any resolution or ordinance, report of a committee or other act, for taxing or assessing the citizens of said city, or involving the appropriation of public moneys:" S. L. 1859, p. 971.

The proceedings in question were such that the votes thereon were required, under this section, to be entered at large on the minutes, whether specially required by two members or not. The defendants insist that this section has been complied with, in substance and in spirit, in every instance; while the complainants, on the other hand, argue that a disregard of its provisions is manifest throughout. Upon this point the evidence of the minutes must be conclusive, and if we find the votes entered there at large, the objection must fail.

On looking at the minutes we find that the votes have uniformly been entered and recorded in the same way; and we may therefore take the proceedings on any one of the several votes as a sample of them all. The vote ordering the contract for paving the street to be entered into was had June 29th, 1868. The record of the meeting of the council on that evening begins as follows:

"Regular meeting, Monday evening, June 29th, 1868. The council met pursuant to adjournment. Present--Aldermen Buckhout, Carlisle, Eastman, Morley, Owen, Wood and Zimmerman--7. By Alderman Carlisle: 'Whereas,' etc. [Here follow the resolutions, after which is this minute] 'Adopted unanimously on call.'"

Unless the minute is a compliance with the section of the charter in question, it is not claimed by the defendants that it has been complied with at all; but their argument is that the record shows, first, the names of the several aldermen who were present when this action was had; second, that the roll was called on the vote; and, third, that each of them, when the roll was called, voted for the adoption of the resolutions. This being so, the vote is, in effect, entered at large on the minutes, and the repetition of the names of the aldermen in the minutes, when the precise position of each upon the resolutions submitted was already recorded, would have been only an idle ceremony, accomplishing no useful purpose.

We have found ourselves unable to take the same view of this record that is taken by the counsel for defendants. There can be no doubt that the provision of the statute which requires these votes to be entered at large on the minutes, was designed to accomplish an important public purpose, and that it cannot be regarded as immaterial, nor its observance be dispensed with: Spangler v. Jacoby, 14 Ill. 297; Supervisors of Schuyler Co. v. The People, 25 Ill. 181. The purpose, among other things, is to make the members of the common council feel the responsibility of their action when these important measures are upon their passage, and to compel each member to bear his share in the responsibility, by a record of his action, which should not afterwards be open to dispute. Now, if the record in the present case shows precisely who voted for the resolution in question, it is apparent that the object of the statute has been fulfilled, and we may be able to sustain the action, notwithstanding the compliance with its provisions has not been exactly literal.

We are of opinion that the record does not show with sufficient certainty that all the members present at roll-call at the opening of the meeting in question, voted for the resolutions; and if it does not show that all did, it does not show that any particular one of them did. What it does show is, that at roll-call when the meeting was opened certain members named were present, and that afterwards, before the meeting adjourned, certain resolutions were adopted unanimously on call. Now, if it were a legal presumption that all the members who were present at the call to order of such a meeting remained until its adjournment, and that no others came in and took their seats afterwards, and if it were also a presumption that every member voted on each resolution on roll-call, the argument of defendants would be complete, and we could say with legal certainty from this record that these resolutions were passed with the affirmative vote of each of the members named as present in the clerk's minutes of the meeting in question.

But surely there are no such presumptions of law, and if there were, they would be contradictory to the common experience of similar official bodies. It is very well known that it is neither observed nor expected that when a legislative body of any grade has commenced its daily session, the doors will be closed to prevent the ingress of members not prompt in arrival, or the egress of others who may have occasion to leave. The actual attendance on such a body will frequently be found to change materially from hour to hour, so that a record that a vote was passed unanimously would be very slight evidence that any particular member present at the roll-call voted for it, or that any member not then present did not. And even if the record could be held to afford a presumption on that subject, its character must be so faint, doubtful and unreliable as to subserve no valuable purpose. Moreover, the members actually present are usually allowed to vote or not to vote at their option, except in cases of close votes, or where an appeal is to be made to the people; and...