The city of Lansing, acting under the provisions of its charter, seeks in this proceeding to acquire certain property for a public alley on block 101, in that city. Sophie S. Turner, an owner of a portion of the land sought to be condemned,- contests the proceeding. She insists that the provisions of the charter are invalid; that they conflict with the 14th amendment to the Federal Constitution; that they authorize the taking of private property for public use without compensation; and that the whole scheme of the provisions of the сharter with reference to the opening of alleys contemplates and authorizes the confiscation of the private property of individual owners for a public use without compensation, and without due process of law. It does not seem to be сontroverted that the proceedings taken conform to the requirements of the charter; but the argument is directed to the validity of the charter under which the proceedings are had. The jury in justice’s court found the necessity for taking and fixed the damages.. Upon aрpeal the circuit court sustained Mrs. Turner in her contention and quashed the proceedings as to her. To review this action we allowed this writ of certiorari.
The validity of the charter provisions are properly raised in this proceeding. It is not necessary that Mrs. Turner wait until the assessment is levied before raising the question. She is not contesting the amount or validity of an assessment which may be levied upon her abutting property, but is questioning the right of the city to take from her the property in question. Her objections are not prematurely made.
Under the chapter of the charter entitled “Taking Private Property For Public Use,” being chapter 13, specific provision is made with reference to alleys, and
“If the proposed improvement shall be the opening, widening, altering, extending or vacating of an alley, the expense of tailing private property therefor, including the сost of the proceedings, and the compensation and damages to be paid, and the first cost in making such alley serviceable for use, shall be defrayed by the lands and property abutting thereon, and in such case it shall be the duty of the city council, by resolution, tо determine the amount which each piece of land shall bear.”
: While with reference to streets and sewers the provision is as follows:
“If the proposed improvement shall be the opening, widening, altering, extending or vacating of a street or avenue, or the construction of any sewer, drain or ditch, the expense of taking private-property therefor including the cost of the proceedings, and the compensation and damages, shall be defrayed in whole or in part as the council'may determine, by the spеcial assessment upon the lands and premises specially benefited by such improvement, in proportion to the special benefits accruing to each parcel. In such case it shall be the duty of the city council by resolution, to determine and describе a local tax district, which embraces all the lands, and premises which, in the opinion of the council, shall be especially benefited. Such resolution shall prescribe the percentage of the expense aforesaid, to be defrayed by special assessment on the lands and premises in said tax district.”
This radical- difference it will be noted, lies in the fact that as to streets and sewers, assessments are levied upon the lands especially benefited, while as to alleys the entire costs must be arbitrarily levied upon the abutting owners by the city council, without requiring the council to consider the question of benefits as between such abutting owners, and at the same
But before considering the validity of the provision above quoted with reference to alleys we will consider the argument advanced by the city attorney, that all •the provisions of the charter must be taken into consideration to obtain the proper construction of the section in question,-and that other sections of the charter, when properly considered, relieve the provision from any question of unconstitutional taint. The argument is made that sections 202 and 250 eliminate this question from the cаse. We must consider the charter in its entirety, but it is quite doubtful if the general language found in other provisions can be substituted for the specific provisions here involved. In section 202 it is provided for the transmission to the council of certified copies of the proceеdings in the condemnation case, and directs that:
“Thereupon the city council shall cause a special assessment to be made of the sum or sums awarded by the jury, and .the expense of said proceedings in pursuance of, and in accordance with the said resolution of the city council hereinbefore mentioned.”
Clearly this does not contemplate that the action of the city council shall be other than as directed and provided for in section 188. That section has already made provision for the aрportionment of the assessment and there is nothing in this last quoted provision contemplating different action from that found in the former section. It is then.provided:
“The assessment shall be made, and the amount levied and collected, in the same manner as is provided in this chаrter for other special assessments.”
This must be taken as meaning no more than that the same machinery shall be used as for other special assessments, rather than that the specific provisions
Much is claimed for section 250 of the charter. This section provides:
“Pursuant to the order of the city council the assessors shall make an assessment upon all lands within the portion of the city so designated, of the amount of expense, in сase of construction of sewers and drains or of the opening of streets or alleys in proportion as nearly as may be to the benefits which each shall be deemed to acquire by the making of such improvement, and in case of grading, graveling, paving and all other street improvements, shall be according to foot frontage, and shall make out an assessment roll in which shall be entered the names of persons and the description of the property assessed, and the amount assessed to each person respectively; and in case any lots or parcels of real estate shall belong to a nonresident, or the owner or owners are unknown, the same shall be entered accordingly, with a description of such lots or premises, as is required by law in assessment rolls made by supervisors of townships, with the amount assessed thereon, which assessment roll, shall be subscribed by them and returned within two weeks to the city council unless such time be extended by resolution of said city council.”
As already stated, it is quite doubtful if general language can be used to eliminatе the specific language found in section 188 with reference to alleys, and the provision there found must be eliminated by something in the charter before we would be justified in overlooking its provisions. But by section 250, it appears that any assessment made by the assessors is tentаtive only, and by this and subsequent sections the final action on the assessment list is taken by the city council. When, therefore, the city council acts, it acts in accordance with the provisions of the charter; if the special assessment be one for streets or sewеrs, the provisions with reference to streets and sewers
We are constrained to hold that these provisions to which our attention has been directed by the learned city attorney cannot supersede the specific provisions found in the charter having application alone to alleys. The proceedings for the condemnation of lands for opening alleys, and the assessment to be made to pay therefor, are prescribed by the charter in specific language. The whole machinery is рrovided for and the manner and method to be used to accomplish the end are set forth in specific terms. The proceedings there provided for must be the foundation upon which the condemnation of defendant’s land must stand or fall. It is per force of the authоrity there granted the city council that this case was started, and, unless such authority has been validly granted to the city council, defendant may not be required to surrender her property, even for a public use.
It is the settled law that special assessments may be sustained uрon the theory that the property assessed receives some special benefit from the improvement differing from the benefit that the general public enjoy. This is the foundation of the right to levy special assessments, and without such foundation the right must fail. That the private property of the citizen may not be taken for the opening of a public alley, except the necessity therefor — the public necessity — be
“The legislature has no power to fix an arbitrary percentage of a public improvement to be imposed, upon a local assessment district, regardless of the benefits received.”
This case controls the instant case, unless we overrule it, which, in effect, we are asked to do. It is pointed out by counsel that the tendency of the court of last resort of the Nation has been to relax and modify the hоlding of that court in Norwood v. Baker,
The judgment of the circuit court dismissing the proceedings as to Mrs. Turner must be affirmed.