Peck v. City of Grand Rapids

Grant, J.

(after stating the facts). The only question to determine is, Can the common council construct a' sewer under the guise of grading and graveling a street ? The charter of the city confers no such authority. Under the act of 1873 providing for a board of public works in and for the city of Grand Rapids, “said board is empowered to determine and establish the grade lines of all streets; * * * to locate all necessary sewers; * * * to cause to be graded, graveled, paved, planked, or covered with other materials all such streets, * * * and to construct all such main and lateral sewers, * * * as the common council shall, by resolution, declare to be necessary improvements.” By Act No. 444, tit. 3, § 10, subd. 39, Local Acts 1895, the common council is empowered *418 “to establish, construct, maintain, repair, enlarge, and discontinue within the highways, streets,” etc., “such * * * sewers as the common council may see fit, with a view to the proper draining and sewerage of said city.” By the Local Acts of 1875 the board of public works is authorized to construct all such main and lateral sewers as the common council of the city of Grand Rapids shall, by resolution, declare to be necessary public improvements. The charter also provides for' two classes of bonds, viz.: “Street-improvement bonds,” and “sewer-construction bonds.” Charter, tit. 6, § 3, subd. 1.

Counsel for the defendant seeks to justify this action of the common council on the ground that the sewer is a necessary part of the street, and therefore comes within the resolution of the council, although the word “sewer” is not mentioned in any of the proceedings. A sewer is not a necessary part of the street, and when action is taken to. lay out, establish, grade, and pave a street, the construction -of a sewer is not included within these terms. The district benefited by a sewer may be, and usually is, different from a district benefited by the establishment of a street or highway. The inhabitants of the city are entitled to a hearing on each of such public improvements, and neither can be included in the other. Grading and graveling. may be a necessary improvement, while the construction of a sewer may not. The common council, under this charter, must first act in each case. The language of this court, speaking through Chief Justice Campbell, in Clay v. City of Grand Rapids, 60 Mich. 451 ( 27 N. W. 596 ), is applicable here:

“If a city council can do one thing and call it some-» thing else, so as to confound roads with sewers, and the repair of one with the building of the other, there is no safety to citizens against the grossest usurpations and injustice.”

That case rules this. See, also, White v. City of Saginaw, 67 Mich. 33 ( 34 N. W. 255 ), and Hoyt v. City of East Saginaw, 19 Mich. 39 ( 2 Am. Rep. 76 ).

*419 The cases of Nelson v. City of Saginaw, 106 Mich. 659 ( 64 N. W. 499 ), and Brown v. City of Saginaw, 107 Mich. 643 ( 65 N. W. 601 ), are not in conflict with this opinion. The assessment is void because the construction of. the sewer was included in it.

Decree reversed, and decree entered in this court for complainants in accordance with this opinion.

The other Justices concurred.