24 Mich. 456 | Mich. | 1872
Van Gorder was contractor with the city of Lansing for grading one of its streets, the expense of which was assessed upon the adjoining proprietors. Under the charter, and by the express terms of the contract, Van Gorder was to be paid from the fund realized from this special assessment.
The assessment was levied, collected and paid over to the city treasurer, and Van Gorder performed a large portion of the work under his contract and received the larger portion of the. contract price, when the' common council, being dissatisfied with his progress, employed another person to complete the work, and paid him from this fund, thereby nearly exhausting it. Van Gorder then' sued the city.
The verdict of the jury settles the right of Van Gorder to be paid. The only question is, whether the city at large is liable to make the payment. It is contended, on the part of the city, that in respect to such local improvements, and the assessments to pay for the same, the common ouncil do not act for the whole city, but as agents on the
We think this argument wholly mistakes the position of the council. The council is the legislative body of the city; and it is acting-as such not, less when levying a special assessment than when imposing the ordinary taxes. The improvement does not belong to the parties assessed, but to the public at large; and it is made from considerations of the general benefit. The cost is levied upon the-adjacent property because such property receives the larger portion of the benefit from enhanced values, and therefore is thought to embrace the proper limits for an assessment district; but if the whole city had been made such district, the character of the work, its use and its proprietorship, so far as there can be said to be any, would have been the same as now. So far are the owners of the land taxed from being principals of the council which taxes it, that they are not even suffered to decide for themselves that they will have the improvement; but the- council, looking to the needs of the whole city, orders it, and then imposes the cost upon a few, though the advantages of the street are received by all. The few thus taxed may well deny the agency of those who are first set over them by the votes of all, and who then tax them for the benefit of all.
When the parties assessed have paid the tax levied upon them, they have performed their whole duty and discharged their entire liability. The duty then devolves upon the city, through its common council, to see that the money is properly applied. This court held in Chaffee v. Granger, 6 Mich., 51, that where under .a city charter a contractor
The judgment must be affirmed with costs.
