Wylie v. City Comm'n of Grand Rapids

• Decision Date: 03 June 1940
• Docket Number: Nos. 14-16.,s. 14-16.
• Citation: 292 N.W. 668,293 Mich. 571
• Parties: WYLIE et al. v. CITY COMMISSION OF GRAND RAPIDS (three cases).
• Court: Michigan Supreme Court

293 Mich. 571

292 N.W. 668

WYLIE et al.

v.CITY COMMISSION OF GRAND RAPIDS (three cases).

Nos. 14-16.

Supreme Court of Michigan.

June 3, 1940.

Action by Curtis M. Wylie and Walter F. Perschbacher, executors of the last will and testament of Henry Smith, deceased, against City Commission of the City of Grand Rapids was consolidated with an action by Curtis M. Wylie and Walter F. Perschbacher, executors of the last will and testament of Henry Smith, deceased, and others and with an action by Curtis M. Wylie and Walter F. Perschbacher, executors of the last will and testament of Henry Smith, deceased, against the City Commission of the City of Grand Rapids to recover special assessments. From the decree, plaintiffs appeal and defendants cross-appeal.

Decree modified and affirmed.Appeal from Superior Court of Grand Rapids; Thaddeus B. Taylor, judge.

Argued before the Entire Bench, except SHARPE, J.

Fred P. Geib, Russell Van Kovering, and Linsey, Shivel, Phelps & Vander Wal, all of Grand Rapids (Clem H. Block, of Grand Rapids, of counsel), for appellants.

Ganson Taggart and Earl F. Phelps, both of Grand Rapids, for appellees.

POTTER, Justice.

This is a consolidation of three actions begun by plaintiffs under 1 Comp.Laws 1929, § 3594, as amended by Act No. 8, Pub.Acts 1934, 1st Ex.Sess., and 1 Comp.Laws 1929, § 4651, as amended by Act No. 7, Pub.Acts 1934, 1st Ex.Sess., to recover special assessments paid to defendant for widening streets which later became part of State trunk line highways M-131 and M-50.

Plaintiffs are the owners of three lots on South Division avenue between Monroe avenue on the north and Wealthy street on the south; and own 160 acres in West Grand Rapids abutting upon John Ball park on one side and the city limits on the other. These pieces of property are respectively located in what will hereafter be referred to as special assessment districts Nos. 3478 and 4146.

In 1928, special assessments were levied on plaintiffs' property in district No. 3478 for defraying the cost of widening South Division avenue from Monroe avenue to Wealthy street. Plaintiffs were assessed $23,904.30, payable in tend equal installments, five of which plaintiffs have paid. At the time this assessment was made, South Division avenue was not a part of State trunk line highway M-131. Defendant was receiving gasoline tax moneys under 1 Comp.Laws 1929, § 3594, subd. (c-1), which provided that cities should receive ‘a sum equal to two thousand (2,000) dollars per mile of state trunk line highways, contained within the limits of a city.’

In 1929, assessments were made upon plaintiffs' property in district No. 4146 for defraying the cost of improving Lake Michigan drive between Covell road and Bristol street, the center 20 feet of which was at that time formally dedicated a State trunk line highway, M-50. The State paid the entire cost of improving the center 20 feet, and plaintiffs were assessed $108,749.60 as their share of all other expense. Plaintiffs have paid the first four of ten equal installments. Under Act No. 131, Pub.Acts 1931, commonly known as the Dykstra Act, amending 1 Comp.Laws 1929, §§ 4415, 4418, the entire width of Lake Michigan drive was taken over as State trunk line highway M-50.

In 1931 and 1932, other sections of South Division avenue were improved in what are known as assessment districts Nos. 1145 and 1149. It was originally intended to finance the improvement under the amendment to the Covert law which extended the benefits of that act to cities. Act No. 59, Pub.Acts 1915, as last amended by Act No. 170, Pub.Acts 1927, see 1 Comp.Laws 1929, § 4314 et seq. However, Act No. 41, Pub.Acts 1932, 1st Ex.Sess., commonly known as the Horton Act, amending Act No. 150, § 19, Pub. Acts 1927, 1 Comp.Laws 1929, § 3594, and adding sections 19-a-19-f, made it possible to defray the entire cost out of gasoline and weight taxes.

Recognizing the injustice of assessing property owners in districts Nos. 3478 and 4146 for the full amount of the improvement and not assessing property owners in districts Nos. 1145 and 1149 for any cost of similar improvements, the city commission sent representatives to Lansing to ask the legislature to provide relief for property owners in districts Nos. 3478 and 4146. Relief was afforded by Act No. 150, § 19-a subd. 5(d), Pub.Acts 1927, as last amended by Act No. 107, Pub.Acts 1933. This section was reenacted and made applicable alike to proceeds from the gasoline and weight taxes by 1 Comp.Laws 1929, § 3594, subd. (d)(5)(d), as amended by Act No. 8, Pub.Acts 1934, 1st Ex.Sess., the gasoline tax law, and 1 Comp.Laws 1929, § 4651, subd. 5(d), as amended by Act No. 7, Pub.Acts 1934, 1st Ex.Sess., the weight tax law. Under these acts, funds were to be used for certain enumerated purposes and, if any money remained, it was to be apportioned between the county and incorporated cities and villages to be ‘used by them, respectively, for the following purposes and in the following order of priority: * * *

‘(d) The payment or refunding to the taxpayers, without interest, of all or any portion of the special assessment or assessments for the cost of opening, widening or improving any state trunk line highway within any incorporated city or village, which cost was levied as a special assessment or assessments prior to this amendatory act: Provided, That the legislative body of such city or village desiring to come under this subdivision shall so determine, by resolution, by a majority vote of the members elect. Such legislative body shall determine in such resolution the amount to be so paid and/or to be refunded to the taxpayers, the time of such payment and/or refund and the manner in which such payment and/or refund shall be made: Provided, That when such payment and/or refund shall be determined by such legislative body, the same shall apply in equal pro rata benefits to all lands so assessed for such special assessment or assessments: * * *.’

The city commission interpreted this law as giving it the discretionary power to select certain assessment districts in which total or partial refunds might be made. It passed a resolution September 17, 1934, cancelling the last five installments due upon the assessment in district No. 3478 and provided for the refund of the sixth to tenth installments to those who had paid in advance. At present, only the sixth installment has been repaid. Plaintiffs took no appeal from this action, but did demand refunds for installments paid in district No. 4146. Defendant refused to make the refunds claiming that under 1 Comp.Laws 1929, § 3594, subd. (d)(5)(d), as amended by Act No. 8, Pub.Acts 1934, 1st Ex.Sess., and 1 Comp.Laws 1929, § 4651, subd. 5(d), as amended by Act No. 7, Pub.Acts 1934, 1st Ex.Sess., it was within its discretion what districts should be repaid. The case came before this court in Smith v. City Commission of Grand Rapids, 281 Mich. 235, 274 N.W. 776, where it was held the law was mandatory, that if one assessment district was given a refund, all assessment districts must be given refunds.

Following this decision, taxpayers from some 15 assessment districts filed petitions for refunds. As the statutes required refunds ‘in equal pro rata benefits to all lands so assessed,’ the commission was prevented from paying to any one assessment district until it had determined how many districts and how many persons within each district were entitled to refunds. Weight and gas tax money was accordingly set aside in a special fund pending a final determination and, August 28, 1938, the commission advertised that public hearings would be held to ascertain what persons and districts were entitled to refunds. January 5, 1939, the commission approved a report of its special investigating committee that the statutes, 1 Comp.Laws 1929, § 3594, as amended by Act No. 8, Pub.Acts 1934, 1st Ex.Sess., and 1 Comp.Laws 1929, § 4651, as amended by Act No. 7, Pub.Acts 1934, 1st Ex.Sess., provided for refunds only when the assessment was paid for improving a street which was a State trunk line highway at the time of the improvement. The commission voted that plaintiffs were not entitled to refunds in district No. 4146 as only the center 20 feet of Lake Michigan drive was a State trunk line highway when the improvement was made. The commission also determined that, as to district No. 3478, plaintiffs were not entitled to a refund of the first five installments because no appeal had been taken from the determination of the commission in 1934,-that only the sixth to tenth installments would be repaid. Plaintiffs appealed to the superior court.

At the same time, some twenty other appeals were taken to the superior court by those taxpayers who claimed the statute entitled them, as well as plaintiffs, to refunds. The cases were consolidated and heard together as consolidated case No. 4113, entitled Albert DeVormer et al. v. City Commission of Grand Rapids.

Shortly before taking the appeal, in law, from the determination of the city commission, plaintiffs had begun two actions, in equity, in the superior court. One action, No. 6309, was a bill in equity in the nature of a bill in aid of execution on the theory that in Smith v. City Commission of Grand Rapids, supra, plaintiffs had obtained a final judgment. This action was consolidated with plaintiffs' action, at law, and the two actions were disposed of for the reasons given in Albert DeVormer et al. v. City Commission of Grand Rapids. Plaintiffs' second action, superior court No. 3835, was mandamus to compel the city commission to refund those sums to which plaintiffs claimed they were entitled by reason of the decision in Smith v. City Commission of Grand Rapids, supra. This action was also disposed of for substantially the same reasons as given in Albert DeVormer et al. v. City Commission of Grand Rapids.

After the appeals to the superior court had been taken, but before an opinion was filed in the case...