107 Mich. 643 | Mich. | 1895
This bill was filed by Addison T. Brown and about 90 others to set aside a special assessment levied by the defendant upon their lands to pay the awards of damages and the expenses of opening Ash street in what is called the “Western Taxing District” of the city of Saginaw. The lands are all situate in that district, but none of them were taken for the opening of the street. The objections made to the assessment, among others, are:
(1) Because there was no such oath administered to the jury as required by the charter, before they began the discharge of their duties.
(2) Because the complainants were not made parties to the original proceedings, and had no opportunity to take part therein; nor were they informed in any manner that they were to be assessed for said street opening in season to have appealed from the confirmation of the verdict.
(3) Because no district was fixed upon which the tax was to be spread before the proceedings in the recorder’s court were had.
(4) Because the common council, which decided that the total expense should be assessed upon the property*645 in the vicinity of said opened street, was not a disinterested body, for the reason that, if the members of the council owned any property in the city, it was for the interest of said members to make the order for local assessment to protect their property from taxation.
(5) Because the council or board of public works, 'in ordering and making said tax roll, did not limit the amount assessed to the amount each parcel of land would be benefited by the opening of the street.
(6) Because said roll had been twice set aside as unjust and inequitable, as, by the charter of the city, the council had a right to do; and yet a council, half or more of whom had been elected since said roll was set aside, without reconsidering the former action of said council, assumed to confirm and approve a roll that had been legally annulled.
(7) Because there is no reason why complainants’ lands should be assessed that does not equally apply to any other real estate in the city, as complainants’ lands do not front on the opened street.
(8) Because complainants have had no opportunity to present the reasons they had for objecting to- and appealing from said assessment to the council, as the charter provides, as, the last time they were notified to appear before the council to object to the roll, they were not heard, but were sent before a committee of the council, and were not present when said committee reported, and had no opportunity to be heard upon said report; and that the council cannot thus delegate its duties to a committee.
1. We think the first point is not well taken, as the proceedings to make the assessment were based upon the judgment obtained in the recorder’s court, directing the opening of the street. The statute provides two different proceedings, — the one by which the street is to be opened, and the other for the assessment of the property benefited by the opening, for the benefits conferred. The first determines the question of necessity and compensation to those interested, and is not open to collateral attack by parties who are not necessary parties to that proceeding. Borgman v. City of Detroit, 102 Mich. 261; Scotten v. City of Detroit, 106 Mich. 564.
This disposes of the first, second, and third objections raised.
5. In answer to the fifth objection, it may be said that section 19, tit. 15, of the charter provides that, after the confirmation of the verdict of the jury, the common council, if it believes that a portion of the city in the vicinity of the proposed improvement will be benefited by such improvement, may, by an entry in its minutes, determine that the whole or any just proportion of the compensation awarded by the jury shall be assessed upon the owners or occupants of real estate deemed to be thus benefited. This is to be levied and collected in the same manner as the expenses of other public improvements are, under title 6 of the charter. This title provides for the assessment to be made by the board of public works. The board, after the assessment is made, reports the same to the common council, under the provisions of section 19 of title 15; and, when the roll is confirmed by the council, it is final and conclusive.
6. It appears that the council had set aside two assess-' ment rolls made for this street opening, and the board of public works made a new one. We think, from an examination of the rolls, it cannot be said to be the same roll as the two former ones rejected.
7. It may be said, in .regard to this objection, that the •charter leaves it to the council to fix an assessment district, and its judgment as to the lands benefited is conclusive.
8. In answer to the last proposition, it appears that, before the confirmation of the roll, the required notice was published, and the complainants appeared before the council, and made their objections. These objections were read to the council. A motion was then made to confirm the roll, but an amendment was adopted referring the matter to the committee on street openings and the city attorney, to afford the parties an opportunity to
The court below held the assessments void, and entered a decree restraining their collection, in accordance with the prayer of the bill. That decree must be reversed, and a decree entered here dismissing the bill, with costs of both courts.