Duffy v. City of Saginaw

McGrath, C. J.

This is a bill to cancel a paving assessment upon three grounds: First, that there was no legal advertisement forbids before letting the contract; second, that no detail estimate of the cost of the improvement was certified to the council; third, that the certificate of the board of public works to the assessment roll is no! valid, because it was not signed by the members of such, board.

Section 3, tit. 13, of the charter provides that the board' of public works “shall -advertise for proposals for the furnishing of material and for the performance of such work.” Local Acts 1889, p. 946. The time is n-o-t fixed by the charter. The records of the board show that on Monday, the 27th day of June, 1892, the board met, and ordered the clerk to “advertise for proposals until 12.. o’clock noon, Saturday, July 9, 1892.” The testimony shows that the advertisement actually made was published in the official newspaper, but that it was not published on the 28th or 29th of June, but *337 appeared for tbe first time in the issue of June 30th. There is no force in this objection. The time for which the publication should be made was a matter for the determination of the board. The board received the bids, and must be presumed to have ratified the action of the clerk, and determined that the advertisement was for a sufficient period. Updegraff v. Palmer, 107 Ind. 181 ; Taber v. Ferguson, 109 Ind. 227 ; Beniteau v. City of Detroit, 41 Mich. 116 .

Section 5 of title 6 of the charter provides that when the improvement is completed, or as soon thereafter as may be convenient, the board of public works “shall prepare a detail statement of the cost of such improvement, showing the amount to be assessed upon the property benefited as provided by the resolution ordering the said improvement.” Local Acts 1891, p. 402. Section 6 provides that “the same shall'be certified to . the common council, and, when such statement shall have been approved by the common council, the same shall be certified to the board of public works, who shall proceed without unnecessary delay to make an assessment,” etc.

The statement submitted contained the following details:

The common council, at its next meeting, approved the statement, and instructed the board to make the assessment.

*338 The charter, in section 3, tit. 13, provides that, whenever the council shall have decided upon making an improvement, the board of public works shall estimate iu detail the probable cost and expense of such work and of the material to be used therein, shall make a record thereof in their office, and shall report such estimate to the council. This was done; the bids were reported to the council; and the contract for the work authorized by the common council. The council had, under section 5 of title 6 of the charter, in the resolution ordering the improvement, directed that the entire cost of the improvement, except the intersections, should be defrayed by an assessment upon the lands to be specially benefited thereby.

The facts bring the case within the rule laid down in Goodwillie v. City of Detroit, 103 Mich. 283 . The cost of the intersections was payable out of the highway fund, and it may be said that the charter only requires that the statement shall be so far in detail as to show the amount to be assessed upon the property benefited.

As to the certificate of the board of public works to the assessment roll, the records of the board show the adoption of a resolution determining and certifying that it has made the assessment as set forth in the roll, and authorizing 'the president “to sign, and the clerk to attest and seal, the foregoing certificate.” The certificate concluded as follows:

“In testimony whereof, said board has subscribed this certificate by its president, and duly authorized and caused the seal of said board to be affixed, and the clerk of said board to attest the same, at Saginaw, this 25th day of March, A. D. 1893.

“The Board ok Public Works ok the City ok Saginaw, Michigan.

“By B. B. Buokhout,

“President of said Board.

“Attest: Alfred Davies,

“Clerk of Said Board of Public Works.”

*339 The charter provides for the organization of the board; for the election of one of their number as president; that the city clerk shall be the clerk of the board; and that it shall keep a record of its proceedings, which shall be open to public inspection. .Local Acts 1889, pp. 945, 947. But this roll does not become operative upon this certification. It is then filed with the city clerk, whose duty it is to report the same to the common council. That body thereupon gives notice by publication to all parties interested, reciting the names on said roll, that the council will, at a time stated, hear objections to and appeals from said assessment. Provision is then made for the hearing of all persons, and the council “may rectify and amend the said assessment in whole or in part, or may set the same aside and direct a new assessment,” or may confirm with or without corrections. And then follows this provision: “Every assessment roll so.ratified and confirmed shall be final and conclusive, and, within five days after the confirmation thereof, the controller shall deliver the same to the treasurer.” Upon delivery of such roll to the treasurer, the tax becomes a lien upon the property. Local Acts 1889, p. 922; Local Acts 1891, pp. 402, 403. The fact of confirmation by the council is indorsed upon the roll, and attested by the clerk.

We think the certification was sufficiently attested; but, in any event, the case is not one calling for the intervention of a court of equity. The assessment is in all other respects a valid one. Complainants had an opportunity to be heard thereon before the council. They did not avail themselves of that opportunity. Section 28, tit. 6, of the charter provides that the council, in case an assessment shall be deemed invalid, may vacate the same, and when so vacated, or when it has been held invalid by a court, the council may cause a new assessment to be made. 'Local Acts 1889, p. 927; Sinclair v. Learned, 51 Mich. 335 .

*340 The decree below is reversed, and the bill dismissed, with costs to defendants.

The other Justices concurred.