Common Council v. Board of Public Works

99 Mich. 392 | Mich. | 1894

Montgomery, J.

This is certiorari to review the decision of the circuit court granting a mandamus to compel the board of public works to proceed to pave a portion of South Ionia street, in the city of Grand Rapids, in pursuance of a resolution of the common council.

The resolution, which was adopted by a unanimous vote, directed that the street be paved with “common cedar blocks,” so called, and declared that the paving of said street with common cedar blocks was a necessary public improvement. The board assumed the power to determine that the pavement should be of sapless cedar blocks, making a difference in .cost of some $1,200 to $1,500. The sole question for our determination is whether the board has the power to 'depart from the terms of the order of determination of the council.

The respective powers of the board and the common council were considered in Common Council v. Board of Public Works, 87 Mich. 113, where the provisions of the charter are quoted at length, and need not be here repeated. The present case differs from that only in this: The improvement under consideration in that case was petitioned for by a majority of the abutting owners, but in the present case the council proceeded under the provisions of section 2 of title 6, which authorizes the council to provide for the paving of a street, without any petition of the abutting owners, by a five-sixths vote of all the members elect. In the present case the necessity for paving with common cedar blocks was determined by a vote of more than five-sixths of the members. It is insisted by counsel for the board that this should distinguish the two cases; that in the one case the property owners have the right to determine what kind of pavement shall be used, and that, having petitioned for a particular kind of paving, neither the common council nor the board, while acting in pursuance of that petition, has the power to provide for any different kind of paving; but that in the present case the action is independent of petition, and that in such case the particulars relating to the kind of material are to be determined by the board. But we think the true construction of the charter provisions does not admit of the board adopting a different kind of material than that described in the resolution declaring the necessity. The charter provides two safeguards for the property owner: (1) Except by a five-sixths vote, no paving can be done but upon petition of a majority. (2) In case there is not such a petition, and the council proceeds independently, there must be a five-sixths vote; and this vote is had with reference to.the kind of material to be used. Such a vote might be obtained for a pavement of common cedar blocks, when it would be against the judgment of the majority of the council that there was a necessity for brick pavement, or even for incurring the expense of paving with sapless cedar blocks. The difference in cost might well have a controlling effect upon the vote, and it is the right of the property owner to insist that only such work as shall be declared a necessary public improvement shall be entered upon. As was said by Mr. Justice McGrath in the case cited:

“It is unquestionably the duty of the council to avail itself of whatever information or knowledge the board of public works possesses, but the authority for these expenditures must originate- with the.common council, and that authority includes the right to determine the question of cost, dimensions, and general character.”

We do not intimate that, if the resolution were broad enough to leave details to the board, a discretion might not be exercised by the board. But in this case it affirmatively appears that there was a limitation upon the resolution declaring the work a necessary public improvement, and it cannot be enlarged.

The order of the court below will be affirmed; but as both parties represent the city, and are simply asking a determination as to their respective powers, no costs will be awarded.

The other Justices concurred.