132 Mich. 152 | Mich. | 1903
Lead Opinion
{after stating the facts).
None of these cases involve this question. In Peninsular R. Co. v. Howard, two of the jurors were stockholders of the plaintiff company. In Stockwell v Township Board of White Lake, a member of the township board was interested in one of the orders involved in the litigation. In Wilson v. Township Board of Burr Oak, it was held that two members of the board were disqualified because they were interested in laying out the highway in dispute, and had already prejudged the case by expressing - their opinions. In Locke v. Wyoming Township Highway Commissioner, two members of the township board were held disqualified because one had made an affidavit that the highway was a public necessity, and the other had stated that he would decide it as he had done before. In Lewick v. Glazier, three of the village trustees were stockholders of the electric-light company, which made a contract with the village through the common council.
There is no more reason why the councilmen in this case were disqualified than they would be if the assessment district included the entire territory of the village. Supervisors and assessors of all municipalities are generally taxpayers, and have it in their power to favor them
Decree will be entered in this court in accordance with this opinion. The case will then be remanded to the court below, with instructions to see that the provisions of the decree are carried out. . 5
SUPPLEMENTAL OPINION.
After the opinion in this case was handed down, counsel for all the parties interested filed a stipulation requesting the court to determine whether the assessment might be extended over a period of years, as was done in Boehme v. City of Monroe, 106 Mich. 401 (64 N. W. 204). This stipulation was complied with, and oral arguments were submitted. We are all of the opinion that the power to extend the taxes for various years is not conferred by the statute. As we said in the former opinion, Boehme v. City of Monroe was based upon an express statute authorizing such extension. No such provision is found in the village act, and we are not at liberty to infer that it was omitted by mistake. It follows, as stated in the former opinion, that the village council must proceed to assess the excess above 5 per cent, upon the village at large.
Rehearing
ON REHEARING.
After the former decisions in this case had been rendered, the defendant village applied for a rehearing, claiming that its views as to the legality of the proceedings had not been properly presented to the court, and that the village, under the belief that it was not interested, but that the contest was one virtually between the com
Under the contention of the complainant, both the district and the defendant village have secured the construction of a sewer without any cost to them. Courts can only sanction such a result when compelled to do so by the inexorable rules of law. It is no new doctrine that municipalities will be compelled to do that which their charters give them power to do. Where the law provided that the board of supervisors of a county owing debts which its current revenue was not sufficient to pay “may, if deemed advisable, levy a special tax not to exceed in any one year one per cent, upon the taxable property,” etc., it was held that the law was mandatory, although permissive
“It is true that, under the contract, petitioner was to be paid from and out of the money to be raised by the assessment, and it is also true that the city did not personally assume the payment for the improvement; but the city did assume the obligation to collect the assessment imposed to pay for the improvement, and that obligation, in connection with the other facts and circumstances in the case, required the city to use all reasonable efforts within its power to make and collect a new assessment to pay petitioner for the labor and materials used in the construction of the improvement, as provided in the contract.” People v. City of Pontiac, 185 Ill. 437, 445 (50 N. E. 1114).
It is also said that, “where a city agrees to pay for certain improvements out of a fund to be raised by assessments upon abutting property, and which the property owners refused to pay, and the city was without authority to enforce, the city is primarily liable.” 2 Smith, Mod. Law Mun. Corp. § 1275, and cases there cited; Commercial Nat. Bank v. City of Portland, 24 Or. 188 (33 Pac. 532, 41 Am. St. Rep. 854); City of Chicago v. People, 56 Ill. 327.
The principle governing this case was enunciated in East Jordan Lumber Co. v. Village of East Jordan, 100 Mich. 201 (58 N. W. 1012), where this court, speaking through Mr. Justice Montgomery, said:
“The village has had the benefit of a full performance by the relator; it has ratified, by auditing these bills, a contract which, as we have said, it had the original power to make; and we think, within settled rules, the village is bound to respond to relator.”
So in this case the defendant village entered into con
Our former decision is affirmed.