Turner v. City of Detroit

104 Mich. 326 | Mich. | 1895

Grant, J.

Complainant is the owner of a lot facing on the boulevard in the city of Detroit. She was notified by the board of park commissioners to construct a stone sidewalk in front of her lot. She refused to do so, and the board constructed the walk, at an expense of $57. The lot was assessed for this amount, and the assessment roll placed in the hands of the receiver of taxes for collection, who was proceeding to enforce the same under the provisions of law. She thereupon filed a bill in equity to restrain such collection. A demurrer was interposed and sustained.

By Act No. 415, Local Acts of 1893, the commissioners are empowered to order the construction of sidewalks, and to determine the material for their construction, and their location. If, after notice, the owner neglects to construct the walk so ordered, the commissioners are authorized to construct it, and to report the cost thereof to the common council, whereupon the sum so reported is required to be assessed upon the land. Two objections are raised to the validity of this act:

1. That it impairs the obligation of the contract between the city and the owners of property taken for the boulevard.

2. That it delegates legislative power and authority to the commissioners.

1. If the act under which complainant’s land was taken for the boulevard contains an exemption from liability for the construction of sidewalks, her contention is correct. The difficulty with her position is that the act in question contains no agreement or obligation on the part of the city to construct sidewalks at its expense, the cost to be levied upon the whole city. The complainant alleges in her bill that her land was condemned for the use of the boulevard in 1890, under Act No. 388, Local Acts of 1889. Her counsel, in their brief, refer to the original boulevard act (No. 374, Local Acts of 1879). This act was expressly repealed by the act of 1889. Complainant’s rights must therefore be determined by the later act. The title and ¡some of the general provisions of this act may be found an Commissioners of Parks v. Common Council of Detroit, 80 Mich. 667-669. There is nothing in this act from which any inference can be drawn that the adjoining lot-owners are exempted from liability to construct sidewalks. The act contains provisions for condemnation which are, in substance, the same as those for condemning lands for streets. Counsel, in their brief, do not call attention to a single provision of the act showing any intention on the part of - the Legislature to obligate the construction of sidewalks at the expense of the city.

2. The act establishing the board of park commissioners gives them the power to lay out. driveways and walks, canals, and flower beds; to set out trees; and to determine where, and of what material, sidewalks and roadbeds shall be constructed. This is not such a legislative power as is conferrable under the Constitution on the common council alone, and the power may be conferred by the Legislature upon the board. People v. Hurlbut, 24 Mich. 69.

Decree affirmed, with costs.

The other Justices concurred.