5 Mich. 336 | Mich. | 1858
Lead Opinion
The City had a right to pave the street on which complainant’s lots are situate, unless the power given by its charter, to pave the streets of the City, and cause the expense to be assessed on the adjacent lots was superseded as to this particular street, by the' Act incorporating the Detroit and Birmingham Plank Road Company. Whether this be so or not, is not the question now before us. The Plank Road Company is not complainant in the present suit, nor a party to it. Whatever may be the relative rights of the City and of this Company, they, and they only, are interested in them, and have a right to complain of their violation. Complainant, as an individual, has no interest in them. If the Company does not think proper to insist on its rights, what is it to him? and how is he injured? He will, it is true, be compelled to pay for the paving done by the City, but this would have been so if the Act of Incorporation had not authorized the Plank Road Company to use the street in constructing its road. If the Company had power to .prevent the paving, and had done so, complainant would not have been called on to pay the assessment of which he complains. But this exemption, in such case, from assessment,
If we concede to the Company all that can be claimed for it under its Act of Incorporation, the City would not be divested of all its power, but of so much only as would conflict with the rights of the Company. What, then, are those rights? They are to use the street in the construction of the road, and to have exclusive possession of the street so far as it is necessary to the enjoyment of the Comjrany’s franchise. It is not necessary to this enjoyment the Company should use the whole street, or any more than sixteen feet in width; eight of which must be covered with plank; and we see no good reason why the City might not pave that part lying on either side of the sixteen feet, if not to the edge of the plank, so long as it did not interfere with the grade or construction of the road, or the travel upon it.
The bill states the Company took possession of the street, constructed its road thereon, and commenced taking toll, and is still taking- toll for travel on this part of the road; and that the' City tore up the plank and plowed up the bed of the road before paving it. If the plank were removed, and the paving done by the City without the consent of the Company, and against its will, while it was in possession of the road; or if the Company abandoned that part of the road lying within the limits of the City; or if the Company continues to exact toll for travel on what was once a plank road, but is now a paved street of the City, questions upon some or all of these facts may-hereafter arise, to be settled by this or some other Court when properly brought before it by parties having an interest in them, but can not and do not properly arise in the present suit.
It must be certified the bill does not present a case
Dissenting Opinion
dissenting:
The first question' reserved is, Whether the Detroit and Birmingham Plank Road Company are exclusively authorised and required to construct, repair, and maintain a plank road upon the premises in question. The counsel for the defendants having admitted this, and no argument having been made against it, we may properly assume it to be true. Such is the fair construction of the Plank Road Charter, and no facts are introduced to change it.
The second question depends on the first. If the Plank Road Company is under an exclusive obligation, and if it has an exclusive right, the City can not have the right to pave the road so occupied, without the consent of the Company. There can not well be one distinct and another exclusive .occupation of the same premises at the same time.
Had, then, the City the right to levy an assessment on the complainant’s property for the purpose of paving this turnpike? I do not perceive how an assessment can be legally levied to pay for a pavement unless the City has the right to make it; ’ and it certainly could not lawfully pave this street against the will of the Company. But the defense set up is, that this is a matter entirely between the Company and the City, with which the complainant has no concern. If this tax had been levied for paving a strip of land never dedicated to the public, it would be acknowledged at once that the City had no jurisdiction. And yet in that case the owner could have assented, and made it a highway after the paving was done. The true objection there, as here, would be, that the City had no right to charge the tax where there was no legal assurance that the property assessed could retain the advantages which the law assumes as authorizing
The power of the City to pave is granted in immediate connexion with the imposition of a duty to work and keep the streets in repair, and to have general control and supervision of them. — Laws of 1857, pp. 96, 119, 132. The one power is attached to the other, and the dependence 'is based in reason, as well as law. Paving is but one method of keeping a street in repair. If the custody of a particular road is vested in another body, I do not perceive how the right qr duty in the City to pave could attach to it, whether that other body is a private corporation with chartered and indestructible rights, or a local board. — Local Board of Health of Kingston-upon-Hull vs. Jones, 28 Eng. L. & Eq. 349. The powers of a city are just as subject to legislative control as those of a highway commissioner, and it is entirely competent to limit and define them at pleasure. And there is no legal objection to making one or 'all of the streets exempt from any control of the Common Council. The whole subject is in the hands of the Legislature, but when any portion of the streets has been legally entrusted to a private corporation, the Legislature can not (and in this case has not attempted to) transfer the trust to others, without consent or compensation. The assessment of this paving-tax was, I
The jurisdiction of Chancery to restrain public officers, when acting illegally and beyond their jurisdiction, is maintainable as well when goods and '.chattels as when other property may be assailed, if the circumstances of the case are such as to render it expedient. Where the act is merely irregular, or where the same thing can be accomplished inevitably by a further new procedure, an injunction will not be- granted without strong grounds of equity. — Mercer vs. Williams, Walk. Ch. 85. In the case before us, the whole proceeding is illegal for want of power. To turn the complainant over to an action at law, would be to enable the City to build these improvements by general tax. The charter expressly provides that paving shall be at the expense of the adjacent lands, and that no contract shall be made for it until a tax is levied, and then payment can only be made out of the specific fund. If the land owner is put to his action, the money collected of him goes to pay for an illegal work, and he is re-imbursed out of the general fund, to which, as a tax-payer, he is also bound to contribute. If the plain intention of the charter can thus be avoided, the citizens will lose the benefit of all those safeguards which have been so 'carefully devised to prevent this very evil. Besides, no remedy against a city can be said to be free from difficulty in its final enforcement. And it is by no means the' policy of the law to encourage or permit the expansion of corporate liabilities. If the contractors should suffer, they are in the position of others who have made illegal bargains. It is not supposable that they can have contracted without inquiry. If they have done so, courts may not, out of any desire to save them from loss, amerce the rest of the community for their benefit. And, however the complainant may be benefited by the improvement if it should be permanent, he has not the legal assurance of its permanence, and can not be compelled to
I think this a proper case for an injunction.
Ordered certified, That, in the opinion of this Court, the bill does not present a case .authorizing an injunction.