This is an application for a mandamus to compel the respondent to execute and deliver to the controller of the city two hundred thousand dollars of park fund bonds, ordered by the common council to be issued, for the purchase of lands for a public park, which have been selected and contracted for by the park commissioners, and the selection, and, as is claimed, the contracts and terms of purchase, approved by the common council.
The case, as now presented, is supplementary to that of The People on the relation of The Park Commissioners v. The Common Council of the city of Detroit, 28 Mich., 228, to which, for the nature and history of the legislation and the action of the commissioners, the council and the citizens' meeting, necessary to an understanding of the facts up to the time when the petition in that case was' presented, reference is here made to avoid repetition.
The material facts which have since occurred, and upon
On the 12th December, 1873, the common council passed a resolution, reciting by way of preamble what the commissioners had done and the previous history of the case, the decision of the supreme court (in the case above referred to), the good faith of the commissioners, that the council were satisfied the location selected by the commissioners was the best attainable place, and that the contracts for the purchase of the lands were at a favorable rate; and the belief of the council that it would be for the best interests of the city to provide means to complete the purchase of a portion of the lands selected by the commissioners; therefore the council approves of the site selected by the commissioners and reported to the council on the 13th of the
On the 26th December, 1873, the board of park commissioners reported to the common council that since the passage of the resolution last mentioned, to which they refer, they have selected for a park, so much of the original site as lies west of Crane avenue, extending from Jefferson avenue to the river, which portion so selected they then proceed to describe more particularly, containing three hundred forty-seven and sixty-nine one-hundredths acres; that of this amount they have contracted for two hundred ninety-six and fifty-two one-hundredths acres, at a cost to the* city of one hundred and fifty-one thousand three hundred and eighty-eight dollars and eleven cents, and they estimate the whole of the premises can be purchased and acquired, with some voluntary contributions of citizens, for two hundred thousand dollars.
This report was, on the 30th December, 1873, accepted by the council, and the recommendations therein contained concurred in by a vote of fourteen to six. The contracts referred to are in force, and the holders of them requiring payment.
On the 6th January, 1874, the council passed a resolution that the two hundred thousand dollars of bonds be
The controller prepared the bonds as directed by the resolutions, and is ready and willing to execute them, and has delivered a portion of them so, prepared to the mayor, who, by the charter, is required to sign all municipal bonds, but he refuses to execute them; and to compel him to execute these bonds, the council make this application for a mandamus.
The respondent admits substantially all the material allegations of fact set up in the petition, including the resolutions for the issue of the bonds, and that the same have been prepared and ready for his signature, and his refusal to sign them, as alleged; admits that the board of park commissioners was lawfully constituted under the original act of April loth, 1871, and that the members were duly qualified under said act; but he denies that it was constituted or appointed, or that it in any way exists, under and by virtue of the amendatory act of March 14, 1873. He denies that the resolutions of the council, authorizing the issue of said bonds, represent, either in law or in fact, the corporate will of the city; and insists that if such bonds can be issued at all under the present legislation on the subject, they can only be issued by the consent and approval of the board of estimates of said city, which has not been obtained.
In the case of The People on the relation of these Commissioners v. The Common Council, we held that it was not within the constitutional power of the legislature to com
Of the correctness of these principles and their result, as stated in the opinion of the majority of this court, as given by my brother Cooley, I see no reason to doubt. [Though, had the constitutional authority of the legislature to vest in other municipal boards duly elected by the people or appointed by the council, portions of the legislative powers formerly vested in the common council, been placed upon the same narrow grounds as indicated in the opinions of my brethren in Attorney General v. The Common Council, Supra p. 108, I might not have been able to concur.]
It is insisted, however, on the part of the relators, that though this amendatory act of 1873 is to be held void to the extent above indicated, it is void to that extent only, and that all its provisions not coming within the reasons of the objections upon which it was held void, must still be regarded and enforced as law; that, being held void only for the reason and upon the ground that it undertook to vest in the commissioners the absolute power of contracting a debt which should bind the city, without the consent or approval of the council or a citizens’ meeting, and to impose upon the council the duty of providing for its payment, by the issue of bonds, etc., and the legislature having, by an act of March 28, 1873 (Sess. Laws, Vol. 2, p. 266, etc., after the amendatory park act above referred to), abolished the citizens’ meeting, and thereby dispensed with the submission of the question to them for approval, leaving only the approval of the council necessary, as a pre-requisite to the creation of the debt or the issuing of the bonds; and the council having given this approval and passed a resolution for the issuing of the bonds, and requiring the mayor to execute them, all objections to the constitutional validity of the law are removed, and the action of the commissioners and of the common council are valid under the principles of our former decision.
But without stopping here to notice the abstract objec
Section 3 of the act is in the following words:
“ Sec. 3. Before any moneys shall be raised or taxes levied and collected for the purposes of the several funds mentioned in the charter of the city of Detroit and acts amend
It will thus be seen that every question before required to he submitted for approval or disapproval to a citizens’ meeting, is required to be submitted for approval or disapproval to this board, elected by the people and representing the people, in lieu of a citizens’ meeting, which, owing to the increase of population, had lost its adaptation and efficiency as a means for the expression of the popular will; and the effect of this legislation upon all acts previously requiring submission to a citizens’ meeting, is to strike out the words “ citizens’ meeting,” and to insert “ board of estimates.” If, therefore, prior to, and without this act, it would, have been necessary to obtain the approval of the citizens’
It is insisted, however, by the relators’ counsel, that as the amendatory park act of 1873 was passed prior to the act abolishing the .citizens’ meeting, and had already, before the latter act was passed, expressly taken from such meeting the power of acting upon the question of contracting this debt or issuing these bonds, the latter act, which is admitted to be valid, cannot be construed as embracing, among the subjects required to be submitted to the board of estimates, the creation of this debt, or the issuing of these bonds ; because nothing was required to be submitted to the approval of this board, except what was at the time of the passage of the latter act required to be submitted to such meeting.
This argument necessarily assumes the validity of the the amendatory park act, so far as it undertook to deprive the citizens’ meeting of the right of acting upon this subject, and authorized the creation of the debt and the issuing of the bonds without the approval of such meeting, and it is insisted that the act is thus far valid, and to this extent repeals the original park act, which required the submission to the meeting as well as to the council; though void, so far as it assumed to take from the council the power of approval, and to impose upon them the duty of issuing the bonds without such approval.
But we see no plausible or possible ground upon which this view can be sustained. In holding as» we did, in the case of The People on the relation of these commissioners v. The Common Council, that the act was void in taking from the council the right which they possessed under the original park act of 1871, to approve or disapprove the creation of the debt, to issue or refuse to issue the bonds, and in vesting the entire right of decision in the board of commissioners alone, • we, in effect, necessarily decided that
There is no room, therefore, for the application to this case in respect to this or any other question arising in it, of the familiar doctrine that a part of a legislative act may be unconstitutional and void, and a part constitutional and valid. It is true the amendatory act contains some new provisions, which may, perhaps, be considered independent of and'unconnected with' the main purpose of rendering the powers and acts of the commissioners independent, both of the council and the citizens’ meeting, and having 'no relation to this main purpose; such as increasing from two hundred thousand dollars fixed by the original act as the limit of the cosc of the lands, to three hundred thousand dollars in the fourth section of the amendatory act, and the provisions at the close of the same section permitting the commissioners to use moneys donated for improving the park, as well as for the purchase of lands, while they could only be used.for the latter purpose by the original act; also the provision in the seventh section of the amendatory act, restricting the power of the commissioners to expend money in ..embellishing the lands, until brought within the' city limits; and, perhaps, the power given in the tenth section to the commissioners to contract with the board of water commissioners to sell or lease' part of the lands for a reser
Now, the clear inteut and purpose of all the uther provisions of the amendatory act are one and inseparable, viz: to place in the hands of these commissioners the entire and independent power of locating the park, contracting for the lands, creating the debt incurred in their acquisition, and of imposing upon the municipality the duty to pay, without the necessity of consulting either the common council, a citizens’ meeting, the board of estimates, or any body else. And all these provisions having this intent and purpose, or auxiliary to or calculated for carrying into effect this intent and purpose, are, within the principles of our former decision, unconstitutional and void, and the amendatory act is to be treated and construed as if these provisions had never been inserted. They do not, therefore, repeal or affect the provisions of the original act of 1871, requiring the approval both of the common council and the citizens’ meeting, — ■ now the board of estimates, — before the debt can be incurred or the bonds issued. And there being no other law under which the power exists of creating the debt or issuing the bonds, without the approval of the board of estimates, who have succeeded to the power of the citizens’ meeting, the result is, that, in our opinion,, the respondent, as mayor of the city, was ■ right in refusing to sign or execute the bonds; and the mandamus prayed for must be denied.
Whether, under the present legislation upon this subject, the question of the creation of the debt or the issuing of the bonds could now be submitted to the board of esti