Tennant v. Crocker
| Decision Date | 24 April 1891 |
| Citation | 85 Mich. 328,48 N.W. 577 |
| Court | Michigan Supreme Court |
| Parties | TENNANT et al. v. CROCKER, Mayor. |
Application for mandamus.
Lungershausen & Erskine, for relators. T. M. Crocker, for respondent.
This is an application for a mandamus to compel the mayor of the city, as presiding officer of the common council, to reverse his decision in declaring a certain resolution carried and to declare it lost. The city of Mt. Clemens is organized under chapter 80, tit. 16, How. Ann St., provided for the incorporation of cities. That act provides that "the legislative authority of cities incorporated under this act shall be vested in a council consisting of the mayor, two aldermen elected from each ward the aldermen at large, if any are elected in the city, and the city clerk." Section 2509, Id. "The mayor shall be president of the council, and preside at the meetings thereof, but shall have no vote therein except in case of a tie, when he shall have the casting vote." Section 2510. "The city clerk shall be clerk of the council, but shall have no vote therein." Section 2512. Each alderman is entitled to a vote in all the proceedings of the council. Section 2513. Section 2515. The power of taxation is limited by the statute; and section 2695, subd. 3, authorizes a "general street fund," out of which the expenses of opening and widening streets are to be paid. In the month of September in each year the council are required to cause estimates to be made of all the expenditures which will be required to be made from the several general funds of the city during the next fiscal year, and, among other things, for lands to be acquired. Section 2702. And in the same month the council are required to pass an ordinance to be termed the "Annual Appropriation Bill," in which they shall make provision for and appropriate the several amounts required to defray the expenditures and liabilities of the corporation for the next fiscal year, payable from the several general funds, as estimated and determined upon, and specify in such ordinance the objects and purposes for which such appropriations are made, and the amount appropriated for each object and purpose, and to each of the general funds and shall also designate in the said bill any local improvements which they may deem advisable to make during the next fiscal year, to be paid for in whole or in part by special assessment, and the estimated cost thereof; and these sums are to be certified to the clerk of the board of supervisors on or before the first passage of the annual appropriation bill. No further sums shall be used, raised, or appropriated; nor shall any further liability be incurred for any purpose, to be paid from any general fund during the fiscal year for which the appropriation was made, unless the proposition to make the appropriation shall be sanctioned by a majority vote of the electors voting upon the proposition at the next annual election. No improvement to be paid out of any general fund shall be contracted for or incurred in any fiscal year unless in pursuance of an appropriation especially made therefor in the last preceding annual appropriation bill. No public work, improvement, or expenditure shall be commenced, nor any contract therefor be let or made, except as herein otherwise provided, until a tax or assessment shall have been levied to pay the cost and expense thereof. Sections 2703-2709.
The city council of the city of Mt. Clemens consists of eight aldermen, elected in the four wards of the city. The mayor is the presiding officer. The relators are three of the aldermen of the city. They set forth in their petition that the Mt. Clemens Bath-House Company owns land in the city, bounded north by Cass avenue and west by South Gratiot street; that they have made repeated unsuccessful attempts to sell to the city a strip of land on the east side of Gratiot street; that a portion of the strip is within the limit proper of Gratiot street,-an old turnpike running between Detroit and Fort Gratiot,-and has been used by the public as a high way for 30 years and upward, which facts are well known to the common council. That at a regular meeting of the council, at which all the aldermen and the mayor were present, the following resolution was offered: "Resolved, that the mayor and city clerk be authorized to enter into a contract with the Mt. Clemens Bath-House Company for the purpose of purchasing a certain strip of land, being about 20 feet wide, for the sum of $1,000; said land fronting on the south side of Cass avenue, and running thence southerly along the east side of Gratiot street, to a point about 165 feet; said piece of ground is wedge-shaped, and to be used for the purpose of widening Gratiot street where the same strikes Cass avenue." That relators and Alderman Matthews, constituting one-half of the aldermen elect, voted against the resolution, the other four aldermen voting in favor of it, and the mayor, against the protest of relators and Matthews, declared that there was a tie, and that he had a casting vote, and thereupon attempted to cast a deciding vote in favor of said resolution, and declared it adopted. They set up that such action of the mayor was illegal, and in contravention of sections 2672, 2673, How. St., which prohibits any improvement requiring the taking of private property being made except with the concurrence of two-thirds of all the officers elected to office; and of section 2515, which requires the same vote for taking private property for public use; and also that it violates another provision of section 2515, forbidding any resolution to be passed or adopted without a concurring vote of a majority of all the aldermen elected to office. They further set up that the action of the mayor was illegal for the reason that no estimates were made, as required by section 2702; and no appropriation was made for such improvement, as required by sections 2704 and 2707; and it had not received the sanction of a majority of the electors, as provided for in section 2706. That no provision has been made for the purchase price of said land, nor has the fund out of which the same shall be paid been designated, and no provision has been made for the same, or any tax or assessment been levied, to pay the cost and expense thereof, as required by section 2709. That no contract has yet been entered into by the mayor and clerk in pursuance of said resolution.
The answer of respondent does not deny any of the foregoing facts except that relative to the old turnpike, and in respect to that respondent says that in the year 1818 Christian Clemens platted a parcel of ground which has at all times since been called and known as the old survey or plat of the village now city, of Mt. Clemens. That on said plat was Cass street; and leading from Cass street southerly was...
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