Woodbridge v. City of Detroit

• Decision Date: 01 June 1860
• Court: Michigan Supreme Court
• Parties: William Woodbridge v. The City of Detroit

8 Mich. 274

William Woodbridge v. The City of Detroit

Supreme Court of Michigan

June 1, 1860

Heard January 4, 1860 [Syllabus Material] [Syllabus Material] [Syllabus Material]

Case reserved from Wayne circuit in chancery.

The bill was filed against the city of Detroit, and William Cook, city collector, to restrain the collection of a tax assessed for the grading and paving of a part of Fort street.

The bill shows that, in 1859, the common council of Detroit passed an ordinance directing the paving and grading of Fort street, and the placing of curb-stones along the same, through a portion of complainant's land lying upon the same, and for a short distance above; that for fifty feet front of this improvement, the land of Lucy Maria Abbott was assessed $ 132.60, and for the remainder, being 810 feet front on the westerly side, and 860 feet front on the easterly side, the land of complainant was assessed $ 4,436.80; that the common council have issued their warrant for the collection of this assessment, and in default of complainant paying the same he is liable to have his goods and chattels seized for the satisfaction thereof; that he has not goods and chattels sufficient to satisfy the same, and the council will proceed to sell the lands assessed therefor if the goods and chattels prove insufficient; that the assessment constitutes a cloud upon his title; that the paving, etc., has been done, but without his consent and against his remonstrance, and that the provision of law authorizing such assessment is unconstitutional.

A temporary injunction having been granted, defendants moved to dissolve the same, and on such motion the circuit judge reserved the constitutional question raised by the bill for the opinion of this court.

T. Romeyn, for complainant:

1. The remedy by injunction is proper: Le Fever v. Detroit, 2 Mich. 587; Caroll v. Safford, 3 How. 441, 463; Burnett v. Cincinnati, 3 Ohio 86; Ohio State Bank v. Knoop, 16 How. 369; Dodge v. Woolsey, 18 How. 331, 339, 340.

2. The paving of the street, like the first taking of its soil, is for the use of the public. To sequestrate a citizen's property for this purpose is, in fact and in principle, to take it for the public use. And as no compensation is provided, either by estimated benefits or otherwise, such taking is unconstitutional. See 11 Johns. 77; 3 Wend. 263; 4 Hill 76; 6 Barb. 214; 9 Barb. 535; Ang. on Highways, 144 to 165.

There is nothing in the principles of taxation, nor in the adjudications in other states, sustaining and justifying this proceeding: Ang. on Highways, Ch. 4; People v. Mayor of Brooklyn, 4 N. Y., 419.

J. L. Chipman, and G. V. N. Lothrop, for defendants:

The assessment in this case is necessarily based on the idea of a benefit to the property assessed. The law itself implies that the courts have always so treated it: 11 Johns. 77; 4 Hill 82. And hence, though it is true as charged in the bill that the assessment is not made on an estimate of the value of the lots, or of their enhanced value, or of the resulting benefits, yet it is no less true, that the assessment rests on the ground of local benefit or improvement to the lots by reason of the paving. And no averments of the bill can negative this fundamental idea of the law.

Paving is, or may be, a local improvement. It is authorized to be done upon that ground. The law properly vests the determination of the question when it will be such improvement in the common council. And their decision on this question, when there is a question, is not the subject of judicial review: 23 Barb. 166.

Local assessments like these in principle, have been upheld generally. See 19 Ohio 418; 1 O. S. R., 127; 5 O. S. R., 243; 6 Humph. 371; 1 Swan 177; 6 Cush. 223; 4 Comst. 420; 23 Barb. 166; 2 Mich. 568.

There is another objection to this injunction. The bill does not show that there is any process now on foot, except for the collection of this tax out of complainant's chattels. The sale of the land is only a remote and contingent liability, for which no proceedings have yet been taken. The real gist of the bill is to prevent our taking complainant's goods and chattels, which, on the supposition that the assessment is illegal, would be merely to prevent a trespass to personal property. But the court will not ordinarily interfere by injunction to restrain a mere trespass, nor ordinarily to restrain the collection of an illegal tax out of goods and chattels; and generally will not restrain the collection of taxes and assessments, except on strong and clear equities: 6 Johns. Ch., 29; 26 Wend. 135; 10 Paige 539; 9 Paige 387; 4 Barb. 9; Ibid., 17; 15 Barb. 255; Ibid., 385; 26 Barb. 301; 3 Ohio 370; 3 O. S. R., 36, 49; 25 Conn. 232; 2 Mich. 582.

Besides, the paving is all done, and of course the whole expense incurred. During the whole period of this expenditure the complainant lies by, and moves only when the collector comes around with his roll. But a party who asks an injunction to prevent an alleged injury, must act promptly. He will not be aided if he lies by while large expenditures are made: 18 Ves. 515; Walk., Ch., 249; 22 Me. 207; 2 Rand. 99; Saxton, 518; 10 Cush. 252; 6 O. S. R., 119.

Manning, J. Martin, Ch. J., Campbell, J., Christiancy, J. concurred.

OPINION

Manning J.:

I can not see that the present case differs essentially from Williams v. The Mayor of Detroit, 2 Mich. 560. The city charter then in existence contained the following clause: "And the common council shall have full power and authority to provide funds for defraying the expenses of such paving of streets or sidewalks as may be deemed necessary, either by assessment on the owner or occupant of such lot or premises, in front of adjacent to which such streets or sidewalks may be directed to be paved or repaired, or otherwise, as they may direct." And it was provided by a city ordinance that, "whenever the common council of said city shall deem it necessary to provide funds necessary for defraying the expenses of grading, paving, or planking any alley, avenue or street of said city, or any portion thereof, they shall cause an assessment to be made by the city surveyor on the owners or occupants of the lots or premises in front of or adjacent to the avenue or street directed to be graded, paved, or planked." And it appears from the opinion of the court that the aggregate cost of the pavement was "apportioned according to the width of each lot fronting on the street paved."

The assessment was held to be a tax, and not the taking of private property for public use.

The only difference between that case and the present is, that the revised charter requires the cost of paving and grading to be assessed "on the owner of the lot or premises in front of or adjacent to which" the paving and grading are done. In Williams' case the cost of the paving and grading was apportioned between the owners of the lots by the number of feet frontage each lot bore to the frontage of all the lots contiguous to the pavement. If the street in front of some of the lots had to be cut down, and in front of others to be filled up to bring it to the grade of the pavement, the expense was assessed on all the lots in proportion to their several frontages on the street. In the present case a different principle of apportioning the expense was adopted, to comply with the revised charter, which requires the owner of each lot to pay for the grading as well as paving in front of his lot. The thing is not impracticable. The work is done by contract; and to carry out the new rule of apportioning the aggregate cost of the whole work, the different parts of it should be, and I presume are, contracted at different prices--the paving at one price and the grading at another. Men will differ as to which of these two modes of apportioning the expense is most just and equitable. The difference, it seems to me, is not of such a nature that one can be a tax and the other not.

Judge Ruggles, in the case of The People v. Mayor of Brooklyn, 4 Comst. 423, says: "Taxation exacts money or services from individuals, as and for their respective shares of contributions to any public burden."

"Private property taken for public use by right of eminent domain, is taken not as the owner's share of contribution to a public burden, but as so much beyond his share."

"Special compensation is therefore to be made in the latter case, because the government is a debtor for the property so taken; but not in the former, because the payment of taxes is a duty, and creates no obligation to pay, otherwise than in the proper application of the tax."

"Taxation operates upon a community or upon a class of persons in a community, and by some rule of apportionment."

"The exercise of the right of eminent domain operates upon an individual, and without reference to the amount or value exacted from any other individual or class of individuals."

I know of no case in which the distinction, with the reasons for it, between taking property by taxation and by the right of eminent domain, is more clearly pointed out, and I find no difficulty in sustaining the assessment in the present case on the principles stated by the learned judge.

Article 14 of the constitution contains the following sections relative to taxations:

"Section 11. The legislature shall provide an uniform rule of taxation, except on property paying specific taxes, and taxes shall be levied on such property as shall be prescribed by law.

"Section 12. All assessments hereafter authorized shall be on property at its cash value.

"Section 13. The legislature shall provide for an equalization by a state board, in the year one thousand eight hundred and fifty-one, and every fifth year thereafter, of assessments...