24 Mich. 322 | Mich. | 1872
held that the appeal did not revive the injunction, and that the defendants were not liable as for contempt, and denied the motion with costs.
This is a bill to restrain the collection of a paving assessment in the city of Detroit. The charter requires contracts for such work when the cost is to exceed two hundred dollars, to be let to the lowest bidder after public notice. This paving was to be done on Woodbridge street, and proposals were advertised, inviting bids for the paving from Third street to the west line of the Brevoort farm; a distance of about a mile. Bids were put in accordingly, but the common council, instead of directing an unconditional contract with the lowest bidders for the whole work, entered into one for the paving to Eleventh street, which was for about one-half of the distance, “or farther if ordered.” This contract was dated July 6, 1867; and the work provided for was done under it. On the first day of October following, the common couucil directed the controller to contract with the same parties for completing the paving from Eleventh street to the west line of the Brevoort farm; and they went on and completed it, but without any new contract being, in fact, made; all parties
The first objection to the assessment is to this action of the council on October 1, which the complainants treat as the letting of a new contract, and which they insist should only have been after the advertising of proposals a second time. We think, however, the parties -were correct in treating this work as being covered by the original contract. It was all to be done under that contract “if ordered” by the council; and they gave order accordingly. It is suggested that a right in the council to advertise for bids for more than they propose to have done immediately, and then to make an optional contract of this description, would be one not to be recognized, because peculiarly susceptible of abuse and fraud; but it is not pretended that there was any fraud, or could be any.abuse in the present case, and cases of possible fraud need not now be anticipated. The objection taken we think untenable,
A second objection is, that the paving included those portions of the street before used as sidewalks, and that the sidewalks were in effect abolished, not by direct resolution for that purpose, but indirectly, by ordering the paving This is -claimed to be illegal, but we do not very distinctly perceive the reason why.' A street includes the whole width of public way; it is customary in a city to set apart a portion of it for foot passengers; but there is no rule of law absolutely requiring this, and in many parts of an incorporated town it might be needless. We have no doubt the whole matter was within the control of the council.
A third objection is based upon the fact that the first ■assessment made to- defray the cost of the work was supposed to have been irregular and was abandoned, and legislation was obtained authorizing a re-assessment. In fact the second assessment proved irregular also, and the one
One is, that the original assessment being void, there was no constitutional power in the legislature to order a re-assessment. This, however, may depend upon the nature of the original infirmity. If the difficulty there was that the sums assessed did not constitute any just or equitable charge for public purposes upon the property upon which it was sought to be imposed, it is quite clear that the legislature could not make it such a charge. But if the defect consisted in some irregularity of proceeding, or in some oversight in the law itself, in consequence of which a just and equitable claim had failed to be legally imposed, there can be no good reason why the legislature should not retrospectively supply the oversight or cure the irregularity. The actual difficulty in the present case, we are told by the briefs, was that no apportionment was provided for by the act under which the first assessment was made. Surely there could be no reasonable objection to this being provided for by a new assessment. We are referred to Hart v. Henderson, 17 Mich., 218, as laying down a different rule; but this is a misapprehension of that decision. It was admitted by the record in that case that a portion of the sum imposed as a tax upon the lands of complainant was levied without authority of law; and consequently was neither a legal nor an equitable claim against him or his property. The exact opposite is the case here. A claim which is both legal and equitable having failed of legal provisions for its enforcement, the legislature has stepped in to do what is just in the premises, by supplying such provisions. The act providing for the re-assessment was adopted in 1869, as an amendment to the city charter, and a question is raised regarding its proper construction. It declares that “Whenever any special assessment for the
It is also insisted that when the council has once made a re-assessment it has exhausted its power, and cannot order a second one. But we think the plain purpose is to confer a continuing power; and that it is not exhausted in any case until an assessment is made which can be enforced.
It is also claimed that the re-assessment is not for the same purpose as the first, and therefore not justified by the amendatory law. The specifications under this point are purely technical, and would go to defeat almost .any law passed to cure irregularities. Such laws must have a reasonable interpretation, to- accomplish the beneficial purpose designed. The last assessment unquestionably varies from the first; but it is varied only to avoid the former errors, and its purpose is the same.
It is also objected that the assessment district divides a block, which is forbidden by § 39 of Chap. 7 of the
It is further objected that the law was not followed, inasmuch as the council made a new assessment district after the bids for paving were received; which is forbidden by section thirty-nine, above referred to. We need not examine this objection particularly, because we think the case of a re-assessment stands on its own reasons, and is not within the intent of this provision. The want of an assessment district originally, might have been the very difficulty requiring new proceedings.
We find no error in the decree appealed from, and it must be affirmed.