Auditor General v. Chase
94 N.W. 178
Mich.
1903
Check Treatment
Montgomery, J.

This is аn appeal from a decree directing the sale of lands for taxes. The tax objected to was a tax imposed upon defendant’s land for the paving of Saginaw street, in the city of Pontiac, in the year 1899. The objections set out in the pleadings are that the intention to makе such pavement and expenditure was not set forth in the preceding annual appropriation bill; that no proper legal noticе was given for a review of the special assessment; that the special assessments were not levied before the paving was commеnced; that the change of grade and repaving of the street were not asked for by a majority of the owners of lots abutting on Saginaw streеt. These comprise the specific objections. In this court it is *632contended that the notice of the proposed pavement, and the district to be assessed, and of the time when the council would meet to hear objections, was insufficient. This is plainly not the objection stated in thе pleadings. By section 13 of chapter 24, Act No. 215, Pub. Acts 1895, a notice is required of the meeting of the council and special assessors sitting as a board of review, which is the meeting referred to in the objection. No complaint appears to have been made as to the suffiсiency of this notice. We have repeatedly held, of these proceedings, that only such objections as were made on the hearing to enforce the tax would be considered by this court. Auditor General v. Maier, 95 Mich. 127 (54 N. W. 640).

Section 16, chap. 30, Act No. 215, Pub. Acts 1895, as amended ‍‌​‌‌‌‌​‌​‌​​‌‌​‌​‌‌‌​‌​​​‌​‌‌‌​‌‌‌‌​‌‌‌​​‌‌‌​​​‌‍by Act No. 136, Pub. Acts 1899, provides that:

“No work or improvement to be paid by special assessment costing more than three thousand dollars shall be ordered commenced or contrаcted for, nor shall any assessment be levied therefor in any year, unless the intention to make such improvement or expenditure, and to defrаy the cost thereof by special assessment, was set forth in the last preceding annual appropriation bill: Provided, however, that this section shall not apply to any public improvement ordered by the council upon a petition of the owners of a majority of the lands liable tо be assessed for the improvement.”

In September, 1898, the annual appropriation bill did give notice of an intention to pave Saginaw street between Jackson street and Oakland avenue, at a cost estimated at $40,000. Subsequently the expense turned* out to be some $70,000, of which thе city assumed to pay something over $20,000, leaving nearly $50,000 to be raised by special assessment. It is contended that ‍‌​‌‌‌‌​‌​‌​​‌‌​‌​‌‌‌​‌​​​‌​‌‌‌​‌‌‌‌​‌‌‌​​‌‌‌​​​‌‍the council did not have jurisdictiоn to levy in excess of $40,000 in a special assessment for the purpose mentioned. We do not*-think this statute is susceptible of this construction. The fаct that the council intended to enter upon the work is sufficiently set out in the annual appropriation bill, and the fact that it turned out later that the expense of the improve-*633meat was greater than was anticipated does not make it necessary for the city to wait anоther year before entering upon the contemplated work.

The meritorious question presented by the case is whether the levy is void because the improvement was not petitioned for by a majority of the property owners on Saginaw street. The village of Pontiac was incorporated in 1842, and continued as a village until 1861, when incorporated as a city. In .1855 the street in question was graded and paved. By the charter of the city of Pontiac, all rights belonging to the village of Pontiac, and all obligations, and all streets, alleys, rights, and privileges of said village, it is deсlared, shall be and remain, accrue, and belong to the city of Pontiac, so far as the same are not repugnant to this act. Section 6, chap. 22, Act No. 215, Pub. Acts 1895, provides that whenever any street, alley, or public highway shall have been graded, or pavement shall have beеn constructed in conformity to grades established by authority of the city, and the expense thereof shall have been assessed upon lots оr lands bounded by or abutting upon such street, alley, or public highway, the owner or owners of such lots or lands shall not be subject to any special аssessment occasioned by any subsequent change of grade in such pavement, street, alley, or public highway, unless such change be asked for by a majority of the owners of such lots or lands, but the expense of all improvements occasioned by such change of grade shall be сhargeable to and paid by the city. It is contended that, under this provision, the city had not the authority to assess this tax against the defendant, becаuse it appears that the improvement was not petitioned for by a majority of the property owners.

It is perhaps fairly to be inferrеd from the testimony that the street was paved with cobblestones in 1855 at the expense of the abutting owners, and, if we assume that this provision apрlies to such ‍‌​‌‌‌‌​‌​‌​​‌‌​‌​‌‌‌​‌​​​‌​‌‌‌​‌‌‌‌​‌‌‌​​‌‌‌​​​‌‍paving as had been done by the abutting owners at this time, the question is whether the case falls within the provisions of this statute. The power to pave and repave at the expense of adjacent pro*634prietors, and to replace an insufficient pavement with nеw, appears not to be questioned, except as it be limited or restricted by this charter provision. Was this an assessment occasioned by a subsequent changе of grade in the pavement laid down in 1855, within the meaning of this act ? We think not. The fair deduction from this record is that the pavement was deemed inadеquate for present necessities and requirements; that it was deemed desirable to pave with asphalt. The action taken had reference to repaving. As an incident to such repaving, the actual grade, as it existed, was changed slightly, and in this way: With a cobblestone pavement, it appears that the crown of the street was higher than it need be .with a smooth, asphalt pavement, so that in the center the street was cut dоwn, and the sidewalk line raised somewhat. As to the change in the grade, the surveyor testified that the only change in the grade ‍‌​‌‌‌‌​‌​‌​​‌‌​‌​‌‌‌​‌​​​‌​‌‌‌​‌‌‌‌​‌‌‌​​‌‌‌​​​‌‍was to get an even grаduation of the street; and that is true with reference both to the center of the street and the curb line. It is confusing terms to say that this assessment was оccasioned by-the change of grade in the pavement. The slight change which was made in the grade was-occasioned by the fact of the improvement of the pavement. The case is very similar in principle to that of O’Reilley v. Kingston, 114 N. Y. 439 (21 N. E. 1004).

We construe this limitation of authority above quoted as precluding á repavement made necessary by the fact that the grade of the street had been changed in so substantial a way as to do away with the former pavement, as by a large cut or fill. That is not this case. It is manifest that the necessity of repavement was determined by the council without any thought оf any substantial change in the grade. That followed upon the determination as necessary in view of the character of the pavement adopted. We think the statute does not limit the authority.

The decree of the circuit judge directing a sale ‍‌​‌‌‌‌​‌​‌​​‌‌​‌​‌‌‌​‌​​​‌​‌‌‌​‌‌‌‌​‌‌‌​​‌‌‌​​​‌‍of these lands for taxes will be affirmed.

The other Justices concurred.