Stevens v. City of Port Huron

• Decision Date: 04 October 1907
• Citation: 113 N.W. 291,149 Mich. 536
• Parties: STEVENS et al. v. CITY OF PORT HURON.
• Court: Michigan Supreme Court

149 Mich. 536

113 N.W. 291

STEVENS et al.

v.CITY OF PORT HURON.

Supreme Court of Michigan.

Oct. 4, 1907.

Cross-Appeals from Circuit Court, St. Clair County, in Chancery; Harvey Tappan, Judge.

Suit by Herman W. Stevens and others against the city of Port Huron to obtain relief from certain assessments for street sprinkling. A demurrer to the bill was overruled as to complainants Mitchell and Willson, and sustained as to complainant Stevens, from which he appealed, and the city prosecuted a cross-appeal as to the other complainants. Reversed as to complainant Stevens, and affirmed as to the other complainants.

Argued before McALVAY, C. J., and OSTRANDER, GRANT, BLAIR, MONTGOMERY, HOOKER, MOORE, and CARPENTER, JJ.William T. Mitchell (Stevens, Graham & Stevens, of counsel), for complainants.

Joseph Walsh, for defendant.

CARPENTER, J.

The Legislature empowered defendant's common council ‘to provide by ordinance for the * * * sprinkling of any of the streets of said city * * * by the city or by contract, and to levy and collect special assessments, to defray the costs and expenses of so doing, and to provide by ordinance the necessary means for carrying out the provisions of this section and the making of the necessary assessment rolls. The amount so assessed shall be a personal charge against the owner or occupant of the premises adjacent to which such sprinkling * * * is done, and be and remain a lien upon the property until the same is paid.’ In accordance with this authority defendant's common council passed an ordinance providing that the streets which it determined to have sprinkled should be sprinkled by contract, and that the total expense should be levied upon the lots and premises abutting the street so sprinkled ‘in proportion to the number of feet fronting, abutting or touching on such street.’ In pursuance of this ordinance Pine street, in said city of Port Huron, was sprinkled, and the total amount of said cost assessed upon the abutting property owners. As would be inferred from this statement, no steps were taken to ascertain that the property assessed was benefited, and the owners were given no opportunity to be heard upon that question. Complainants, whose property-some of which is vacant and some of which is occupied-abuts on said street and is assessed for said sprinkling, bring this suit in equity, setting forth the above facts, and also averring that their property was not benefited by said street sprinkling, and asking to be relieved therefrom. Defendant demurred to this bill. The cause was heard in the lower court, and a decree therein rendered, setting aside said assessment on the vacant property and sustaining it on the occupied property. Both parties appeal to this court.

Complainants contend that the proceedings for the levy of this assessment are void, because the assessment was not apportioned according to benefits. They rely upon Detroit v. Judge of Recorder's Court, 112 Mich. 588, 71 N. W. 149, where it was said: ‘The sole ground for imposing a part or all of the cost of a public improvement upon one part of a municipality is that the part burdened with the cost receives corresponding benefits which the general public does not receive’-and where we held invalid a street opening law which provided that at least half of the amount required for opening the street should be raised by local assessments, saying: ‘It contains to provision which requires the assessment upon the local district to be in proportion to the benefits received. The common council are not required to determine, when they establish the district, to what extent it is benefited. The jury are required to assess one-half upon the assessment district, regardless of whether it is benefited to that extent, and are clothed with power to assess a larger amount only when they conclude that the benefit exceeds 50 per cent. The Legislature has no power to fix an arbitrary percentage of a public improvement to be imposed upon a local assessment district, regardless of the benefits received.’ Defendant's counsel contend that the case at bar is not within the principle of the above case, but is within the principle which is applied in paving a street. In such cases it is held that it is competent for the Legislature to provide that the entire cost of paving the street shall be borne by the property abutting upon the street in proportion to its frontage. See Sheley v. Detroit, 45 Mich. 431, 8 N. W. 52;Cass Farm v. Detroit, 124 Mich. 433, 83 N. W. 108; s. c. 181 U. S. 396, 21 Sup. Ct. 644, 645, 45 L. Ed. 914, 916;French v. Barber Asphalt Paving Co., 181 U. S. 324, 21 Sup. Ct. 625, 45 L. Ed. 879.

There is this distinction, however, between those cases and the case at bar. In those cases the Legislature itself directed the entire cost of the improvement to be levied upon the abutting property in proportion to frontage. In the case at bar it has not done that. It has simply given the common council of defendant authority to collect the same by special assessments. It cannot be said that this distinction is unimportant. It was recognized by the Supreme Court of the United States in French v. Barber Asphalt Paving Co., by quoting with approval from a former decision of the Supreme Court of the United States (Fallbrook Irrigation District v. Bradley, 164 U. S. 112, 17 Sup. Ct. 56, 41 L. Ed. 369) as follows: ‘It has been held in this court that the Legislature has power to fix such a district [assessing district] for itself, without any hearing as to benefits, for the purpose of assessing upon the lands within the district the cost of a local public improvement. * * * But when, as in this case, the determination of the question of what lands shall be included in the district is only to be decided after a decision as to what lands described in the petition will be benefited, and the decision of that question is submitted to some tribunal (the board of supervisors in this case), the parties whose lands are thus included in the petition are entitled to a hearing upon the question of benefits, and to have the lands excluded if the judgment of the board be against their being benefited. Unless the Legislature decide the question of benefits itself, the landowner has the right to be heard upon that question before his property can be taken.’ In Wight v. Davidson, 181 U. S. 384, 21 Sup. Ct. 616, 45 L. Ed. 900 (this was a case similar to the Cass Farm Case and decided at the same time), the Supreme Court of the United States, in speaking of Norwood v. Baker, a former decision reported in 172 U. S. 269, 19 Sup. Ct. 187, 43 L. Ed. 443, said: ‘There the question was as to the validity of a village ordinance, which imposed the entire cost and expenses of opening a street, irrespective of the question whether the property was benefited by the opening of the street. The Legislature of the state had not defined or described the abutting property as benefited by the improvement, nor had the village authorities made any inquiry into the question of benefits. There having been no legislative determination as to what lands were benefited, no inquiry instituted by the village council, and no opportunity afforded to the abutting owner to be heard on that subject, this court held that the exaction from the owner of private property of the cost of a public improvement in substantial excess of the special benefits accruing to him is to be extent of such excess a taking under the guise of taxation of private property for public use without compensation.’

The foregoing quotations are placed in this opinion, not because I regard them as correct statements of the law, for I candidly confess to a conviction that the law upon this subject is not yet settled, but for the purpose of showing the difficulty of bringing this case under the principle of the streetpaving cases. If we concede that the Legislature might itself determine that the total expense of sprinkling a street should be assessed upon the abutting property owners in proportion to their frontage (and I make such concession only for the purpose of this opinion), and if we concede that the Legislature may delegate this power to a municipality (and this concession is opposed to the principle declared in the foregoing quotations), the question arises whether in this case the power was delegated. If it was, it would, as already shown, permit a municipality to decide that a landowner is benefited by an improvement, without giving him any opportunity whatever of being heard upon the question of benefits. A municipality certainly does not possess that power, unless the Legislature granted it. See Detroit Citizens' Street Railway Co. v. Detroit, 110 Mich. 384, 68 N. W. 304,35 L. R. A. 859, 64 Am. St. Rep. 350. The Legislature did not expressly grant it. Was it granted by implication? It was not, unless it is to be implied from the grant of authority ‘to levy and collect special assessments, to defray the costs and expenses of’ sprinkling the street. It is clear that defendant's common council might fully and effectively exercise this authority by proceeding in the usual manner, viz., by apportioning the assessments according to benefits after hearing the parties interested. To make said grant of authority effective it is not, therefore, necessary to infer a grant to the municipality of the unusual and extraordinary power of determining that a landowner is benefited by a public improvement without giving him any opportunity of being heard.

Whether such power passed by implication is to be determined by the general rules applicable to the construction of municipal charters. Justice Cooley, in his work on Constitutional Limitations (7th Ed. p. 271), says: ‘The general disposition of the courts in this country has been to confine municipalities within the limits that a strict construction of the grants of powers in their charters will assign to them, thus applying substantially the same rule that...