Summary
Certiorari to Wayne; Carpenter, Lillibridge, Hosmer, .and Waite, JJ.
Mandamus by Francis A. Blades, comptroller of the -city of Detroit, to compel the board of water commissioners of said city to turn over to him the books, papers, and property of the waterworks system, in accordance with the provisions of Act No. 408, Local Acts 1899. From an •order denying the writ, relator brings certiorari.
In 1853 the legislature passed an act (Act No. 90, Laws 1853) entitled “ An act to amend the laws relative to supplying the city of Detroit with pure and wholesome water,” which act was approved February 14, 1853. ' Under this act the present board of water commissioners of the city of Detroit was organized, and it has ever since conducted its affairs under that act and acts amendatory thereof. The material provisions of that act are as follows:
“Section 1. The People of the State of Michigan enact, That Shubael Conant, Henry Ledyard, Edmund A. Brush, William B. Noyes, and James A. Van Dyke be and they are hereby named and constituted as a ‘ board of water commissioners of the city of Detroit,’ who, and their successors in office, shall be known by the name and style of the ‘Board of Water Commissioners of the City of Detroit,’ and by that name shall have power to contract, sue, and be sued, to purchase, hold, and convey personal and real estate, to have a common seal, to alter and change the same at pleasure, to make by-laws and ordinances, and do all legal acts which may be necessary and proper to carry out the effect, intent, and object of this act.
“Sec. 2. The said commissioners shall hold their offices respectively for the term of three, four, five, six, and seven years from the first Tuesday in May of the year one-thousand eight hundred and fifty-three. Said commissioners shall, within sixty days after the passage of this act, decide by lot their respective terms, which decision shall be notified by a written statement to the common council of said city, which shall be entered of record on the books of the said common council; and at their first regular meeting in the month of April in the year one-thousand eight hundred and fifty-six, and annually thereafter, the said common council shall elect and appoint a citizen of said city, being a qualified voter and a freeholder, as a commissioner, who shall hold his office for five years from the first Tuesday in the May next following : Provided, that this section shall not be so construed, as to disqualify any member of the said board for reappointment; and in case of the death, or resignation, or removal from the city of any of said commissioners, the common council shall, as soon thereafter as possible, appoint to fill such vacancy, for the remainder of the term, some citizen of said city, being a qualified voter and freeholder.”
“Sec. 4. The said commissioners shall have power to loan from time to time, upon the best terms they can make, after giving public notice by advertising in the city papers for sixty days, and in one paper in Boston, and two in New York, for such time as they shall deem expedient, a sum of money, not exceeding two hundred and fifty thousand dollars, upon the credit of said city of Detroit, and shall have authority to issue bonds pledging the faith and credit of said city for the payment of the principal and interest of said bonds; which bonds shall issue under the seal of said board of commissioners, and shall be signed by them, or a majority of them, and bearing interest not exceeding eight per cent, per annum. And it shall be the duty of said commissioners to cause to be kept an accurate register of all the bonds issued by them, showing the number, date, and amount of each bond, and to whom the same was issued; and it shall also be their duty to cause to be furnished to the auditor of said city a copy of such register as soon as the same is made, which shall be preserved by said auditor, and copied into the records of said city.
“Sec. 5. It shall be the duty of said commissioners to examine and consider all matters relative to supplying the city of Detroit with a sufficient quantity of pure and wholesome water, to be taken from the Detroit river, or such other source as may be deemed expedient, for the use of its inhabitants.
‘ ‘ Sec. 6. Said commissioners shall have, power to employ superintendents, clerks, collectors, assessors, engineers, surveyors, and such other persons as, in their opinion, may be necessary to enable them to perform their duties under this act, and to specify the duties of such persons so employed, and to fix their compensation: Provided, that in no case shall said commissioners receive, directly or indirectly, any compensation for their own services.
“Sec. 7. Said commissioners shall have power, and it is hereby made their duty, as soon as may be after the necessary funds have been procured as herein provided, to purchase such land and materials, and to construct such reservoirs, buildings, machinery, and fixtures, as shall be deemed necessary or desirable to furnish a full supply of water for public and private use in said city.
“Sec. 8. Said commissioners shall have power to construct reservoirs, jets, and fire hydrants at such localities in said city as they may deem expedient and necessary, and to lay pipes in and through all the alleys and streets of said city; and also to construct in such localities as they may deem expedient, not exceeding one to each block, hydrants for public use, and to keep the same in repair; and also, with the consent of the common council of said city, to construct fountains in the public squares, or such other public grounds of said city as they shall deem expedient.
“Sec. 9. Said commissioners shall, from time to time, cause to be assessed the water-rate to be paid by the owner or occupant of each house or other building having or using water, upon such basis as they shall deem equitable; and such water-rate shall become a continuing lien, until paid, upon such house or other building, and upon the lot or lots upon which such house or other building is situated.”
“Seo. 13. Whenever the receipts of said board, from water-rates or other sources, shall accumulate so that there shall be a surplus, amounting to a sum of hot less than five hundred dollars, not needed for the payment of the current expenses or the extension of said works, it shall be the duty of the commissioners, together with the auditor of said city, who shall be associated with them for that purpose, to invest the same in some safe stocks, or upon other real or personal securities. Such investment shall be made in the name of said board, and in such manner as to make the same available for the payment of interest and principal of the bonds issued as aforesaid as soon as may be. It shall be the duty of said commissioners to pay the interest on such bonds, and, as fast as such surplus fund will permit, also the principal, as the bonds become due, as funds for such purpose shall from time to time accumulate. The said commissioners may, when they have funds for that purpose, purchase the bonds so issued as aforesaid, whether the same have become due or not; and in case the said commissioners shall at any time not have funds on hand sufficient to meet any of the said bonds at the time when they shall become due, they shall have the right to issue new bonds, for such amount and on such time as they shall deem expedient, in the place of bonds so becoming due as aforesaid; the said old bonds to be canceled in the registry thereof, and the said new bonds to be recorded in the manner hereinbefore provided.”
“Sec. 24. It shall be the duty of said commissioners, at least thirty days before the time fixed by the ordinance of said city for assessing city taxes, to make a special report to the common council of said city, what, if any, sum will be needed by said commissioners, over and above the revenue of said board, to meet the payment of interest or principal of the bonds issued as aforesaid; and it shall be the duty of the common council to raise said amount by special tax in the same manner as general taxes, to be designated a water tax; and the said amount shall be paid over to said board by the treasurer of said city.”
“Sec. 26. All lands, lots, docks, buildings, machinery, pipes, logs, hydrants, and all fixtures whatsoever, purchased, designated, or used for the present waterworks of the said city of Detroit, are hereby conveyed to and vested in said board of commissioners, who shall have full power to regulate, protect, and control the same; and all the authority, rights, and power heretofore exercised and had by said city over said works are hereby continued to and vested in said board of commissioners.”
By subsequent acts of the legislature, the respondent was authorized to issue bonds for the purpose of extending and improving the waterworks. In 1873 a loan of a million dollars was authorized. Section 2 of that act (Act No. 302, 3 Laws-1873) is as follows:
“If the said commissioners shall, at any time, not have funds on hand sufficient to meet any of the said bonds at the time when they shall become due, they shall have the right to issue new bonds, for such amount and on such time as they shall deem expedient, in the place of the bonds so becoming due as aforesaid, or such part thereof as said commissioners shall be unable then to pay. The said old bonds so taken up shall be canceled, and such cancellation recorded or otherwise indicated in the registry thereof, and the said new bonds shall be recorded in the manner hereinbefore provided. It shall be the duty of the common council, and said council is hereby empowered, to cause to be levied and assessed annually, upon the taxable property in said city, the sum of seventy-five thousand dollars, the same to be included in each annual tax assessment levied on said city, and the same shall not require or be conditioned upon the vote of the freemen of said city. The said sum shall be collected the same as other general taxes, and shall, from time to time, as received, be paid over to said board by the treasurer of said city; and the moneys so paid over by said treasurer to said board shall be used and appropriated by said board, first, in payment of tbe interest of said bonds; second, if there be any surplus after payment of the interest accruing during the year, said moneys shall be paid into and form a part of the sinking fund of said board, and used and appropriated to the payment of said bonds when due, or to the purchase of the same, or of any other of the bonds heretofore issued by said board, as the said board may, from time to time, think expedient.”
The purpose of this loan was the removal of the waterworks outside the territorial limits of the city of Detroit. In 1887 an act (Act No. 539, Local Acts 1887) was passed which, among other things, authorized the respondent to accept a bequest made to it by Chauncey Hurlbut, who had been for many years the president of the board.
The value of the property under the control of the commissioners January 1, 1899, was $6,030,963.29. Up to 1875 it had been supported by water-rates alone. From that year to the present a general per annum tax has been levied, under the direction of the common council, under the section last above quoted, amounting to from about $18,000 to about $74,000.
In 1899 the legislature passed an act (Act No. 408, Local Acts 1899) entitled:
“An act to transfer to the city of Detroit the title to all the property, of every name and nature, now owned, operated, and controlled by the board of water commissioners of the city of Detroit, under the powers, rights, and privileges granted said board of water commissioners by an act entitled ‘An act to amend the laws relative to supplying the city of Detroit with pure and wholesome water/ approved February fourteenth, eighteen hundred fifty-three, and the acts amendatory thereto, and to give to said city of Detroit the possession, control, and operation and management of said property, and to repeal all acts and parts of acts in conflict herewith.”
Section 1 provides for the transfer of all the property, authority, rights, and powers of the board of water commissioners to the city of Detroit, and provides that the operation, extension, and improvement of the system shall be under the direction and supervision of the board of public works.
Section 2 provides for the laying of pipes, mains, etc., in the streets and through private property; defining the proceedings to be instituted for condemnation.
Section 3 provides for the purchase of lands, and the erection of buildings and machinery.
Section 4 provides for the assumption by the city of Detroit of the bonded and other indebtedness of the board of water commissioners, and also of all lawful contracts entered into by said board of commissioners, and for the prosecution of all suits then pending.
Section 5 provides for the erection of drinking hydrants for public use.
Section 6 provides for the erection of a separate department of the board of public works, to be known as the “Water Department” thereof, and for the employment of superintendent, clerks, etc.; for the removal of the superintendent ; for the classification of the work of the department, and the keeping of accounts. It also contains the following provisions:
‘ ‘ It shall keep a separate account of the cost of laying distributing pipes, aqueducts, and mains hereafter laid, so that the cost thereof in each block may be ascertained at any time, and so that, whenever a pipe or main larger than six inches in diameter is laid, the cost of laying the six-inch pipe in each block, had it been laid, may also be ascertained. The just proportion of the cost of laying said six-inch pipes shall be assessed to each lot benefited. Such just proportion shall be ascertained by finding the ratio which the narrowest frontage of said lot bears to the entire frontage on both sides of the street or alley in the block where said lot is located. The amount of such just proportion due from each lot, when ascertained, shall be assessed as a special assessment upon such lot. The common council shall provide by ordinance for the collection of all such special assessments. Lots already supplied with water shall not be subject to special assessment for water-pipes hereafter laid. No lot shall be supplied with water from any pipe, main, or aqueduct hereafter laid, without there is first paid to the city treasurer the just proportion of the cost of laying a six-inch pipe in the street or alley on which said lot abuts, with interest thereon from the time said pipe is laid. Such money, when paid, shall be credited to the water department construction fund.”
Section 7 provides for the distribution of water outside the city.
Section 8 provides for a division of the revenues and moneys of the water department of the board of public works into separate funds.
Sections 9 and 10 are as follows:
“Sec. 9. It shall be the duty of the board of public works to transmit to the common council of the city of Detroit, on or before the fifteenth day of February in each year, an estimate of the amount of moneys which said board may deem necessary for improving and enlarging the pumping works and plant of the waterworks of the city of Detroit; also an estimate of the amount of money said board may deem necessary to pay the cost of extending water mains and pipes, and for any other purpose essential to the proper maintenance and operation of the waterworks and water system of said city. Such estimates, or so much thereof as the common council shall approve, shall be submitted to the approval of the board of estimates, at the meeting thereof required by law for the approval of annual taxes voted by said common council ; and so much of said estimates as shall be approved by the board of estimates shall be placed upon the general assessment rolls, and shall be assessed, levied, and collected the same as other city taxes. Said money, when collected, shall be paid into the city treasury, and shall be credited to the construction fund of the water department. They shall also transmit to the common council, on or before the fifteenth day of February of each year, an estimate of the total amount of money they deem necessary to pay the cost of maintaining and operating the water plant for the ensuing fiscal year, which shall include all necessary repairs. Such estimate, or so much thereof as the common council and board of estimates shall approve, shall be levied and collected as hereafter provided.
“The board for fixing water-rates, as provided for in section ten of this act, shall prepare and transmit to the common council, on or before the first day of May in each year, an estimate 'of the amount of money they deem a just proportion of the total estimate for maintenance as a reasonable charge for the expense of furnishing water for domestic purposes to the inhabitants of the city of Detroit, such domestic purposes to include such use,of water in and about places of residence as are usual for household purposes; and for water used for water-closets and washroom facilities in all buildings used wholly or in part for other than residence or household purposes; to the city of Detroit, including its agencies and municipal boards, the Detroit house of correction, the public schools, and such charities as the common council shall have determined to exempt from the payment of water-rates, — which estimate shall be in detail, specifying the objects of such expenditure, the sums desired for each, and the reasons therefor. It shall be the duty of the common council to cause to be levied and assessed, upon the taxable property of the city, the sum so stipulated, as contemplated in the preceding paragraph, and the same shall not be submitted to the board of estimates or to a vote of the freemen of the city. When such tax is collected, it shall be paid into the city treasury, and credited to the water department maintenance fund. The balance of the total estimate for operating expense shall be assessed as water-rate, to be paid by the owner or occupant of each house or other building having or using water, and against any persons using water, except for domestic purposes, in the city of Detroit, upon such basis as they shall deem equitable; and such water-rate shall become a continuing lien, until paid, upon such house or other building, and upon the lot or lots upon which the house or other building is situated; and all such water-rates, when collected, shall be paid into the city treasury, and credited to the water department maintenance fund.
“Any surplus of moneys remaining in the maintenance fund at the end of any fiscal year shall be applied to and credited to the maintenance fund of the ensuing fiscal year, and shall be used for no other purpose. Any surplus of money remaining in the construction fund at the end of any fiscal year shall be applied to and credited to the construction fund of the ensuing fiscal year, and shall be used for no other purpose. On and after the first day of July, eighteen hundred ninety-nine, the water-rates, as heretofore levied and collected by the water commissioners, shall continue to be levied and collected under the supervision of the board of public works, until the first day of July, nineteen hundred, when said rates shall cease, and thereafter the water-rates shall be assessed and collected as provided for in this act.
“Seo. 10. The superintendent of the water department, the mayor, the president of the board of public works, the city comptroller, and the city treasurer shall constitute a board for fixing water-rates, which shall, on or before the • first day of May of each year, fix a schedule of the water-rates to be collected for the ensuing'fiscal year, which schedule shall comply with the requirements of the preceding section. The water-rates so fixed shall be collected by the receiver of taxes in such manner and at such times as shall be provided by an ordinance by the common council.”
Section 11 provides for an annual report by the city comptroller of the financial condition of the water department, and provides for access to the books for that purpose.
Section 12 provides for a distribution of the revenue received from the house of correction, and that all the bonds mentioned and provided for in this act shall continue to be exempt from the charter provision limiting the bonded indebtedness of the city.
Section 13 provides a penalty for injuring any of the property of the waterworks.
The act contains no repealing clause.
The respondent refused to turn over to the relator the books, property, etc., under its control. Thereupon he applied to the circuit court for the county of Wayne for a writ of mandamus to compel such delivery. The case was there heard before four of the circuit judges, three of whom (Judges Carpenter, Lillibridge, and Hosmer) held the law to be void. The majority opinion held that the scheme of taxation provided in section 9 of the act is unconstitutional, because, in a matter purely local, the power of taxation was conferred upon a board appointed by the legislature, in which the taxpayers and freemen of the city were allowed no voice, either by direct vote or by those chosen to represent them for that purpose, and that this unconstitutional scheme was so interwoven with the entire frame of the act that the entire act must fall. In a concurring opinion filed by Judge Hosmer, he held that the object of the law was not expressed in its title, and that the act was, for this reason, void. Judge Waite dissented, and, while he held that certain provisions were unconstitutional, he also held that the waterworks might be carried on and maintained as heretofore, and that the balance of the act could stand, without the unconstitutional provisions.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
