W. F. Stewart Co. v. City of Flint

Montgomery, J.

This is a bill filed by complainants to restrain the collection of a special assessment upon property owned by the complainants for the construction of the “ St. John Street Sewer,” so-called. The bill alleges many irregularities in the proceedings providing for the construction of the sewer. It also alleges that the sewer was constructed mainly in the interests of the public health of the entire community, and that, notwithstanding this fact, 75 per cent, of the entire cost of the sewer was levied upon property in the assessment district, and that this was fraudulent conduct on the part of the common council. The defendants filed a cross-bill, denying the charge of fraud, and asking that a decree for the amount of the assessment be made against the various complainants for the amount assessed to each. In the court below, a decree was entered, restraining the defendants from collecting the tax, and dismissing the cross-bill; the court, however, holding that the city had a right to levy an assessment against the local district. Both parties have appealed; the defendants from the decree entered, and the complainants from that part of the decree which holds that the city has a right to levy the assessment against the local district.

The irregularities in the proceedings are numerous, and it is not contended that the statute was in all respects complied with. The ordinance requires a yea and nay vote, determining the necessity of the public improve *699 ment, and providing for the assessment of the tax for the improvement. The action originally taken was not taken by a yea and nay vote. The contract, as originally let, was let to Lynch & Lynch for an aggregate sum of $26,153.30. It subsequently transpired that a sewer of six feet less depth than that originally contemplated would answer all requirements, and the contract with Lynch & Lynch was modified by reducing the contract price proportionately. Later on a new assessment was made, by which an assessment district was fixed. Seventy-five per cent, of the cost of the sewer was apportioned to the assessment district, and 25 per cent, was apportioned to the city at large. Commissioners were appointed to make the assessment, and this resolution was adopted by a yea and nay vote, as required by the charter.

Under section 9 of chapter 20 of the charter (Act No. 346, Local Acts 1901), any special assessment, which is in the opinion of the council invalid by reason of irregularity or informality in the proceedings, may be validated by a new assessment for the same purpose for which the former assessment was made. This statute is very broad. It is entirely within the power of the legislature to correct any error in an assessment which does not in effect work any injury to the taxpayer. Farr v. City of Detroit, 136 Mich. 200 ; 1 Cooley on Taxation (3d Ed.), p. 510. There would be little difficulty, therefore, in sustaining this reassessment as entirely valid, except for the fact that, in providing for a modification of this contract, in substantial respects the council exceeded its authority, and ignored the provisions of section 3 of chapter 20- of the charter. There is no doubt that, so far as the case is affected by the informality in the proceedings, the property is still subject to a new assessment, if there can be found or provided legislative authority for ascertaining what in fact were the actual benefits to the property within the assessment district from the construction of this sewer. But the failure to advertise and let the contract as it was modified leaves the question of the actual law *700 ful cost of the sewer not susceptible of determination, and / for this reason the prayer of the cross-bill cannot be granted. See Auditor General v. Stoddard, ante, 329.

As to the relief asked by the complainants, the record discloses the fact that some of the complainants were very active in securing the action of the council in providing for this sewer. They were the proprietors of the Oak Park Subdivision, so-called, a portion of the city devoted to manufacturing, and it was thought to be exceedingly important that the séwer be provided for this district at as early a date as possible. With this in view, some of the complainants urged action by the council, and asked that this action be taken, even if it was thought necessary to provide for assessing the whole cost upon this Oak Park Subdivision, but with the understanding that the council would later take up and consider what was equitable and fair as between the different sections of the city, and apportion such part as should equitably be borne by the city at large to the whole city. It was in pursuance of this action, thus urged by the owners of property in Oak Park Subdivision, that the original action of the council was taken. Later on the subject came before the council, and it was then decided that the portion which the city should bear was 25 per cent., and the remaining portion should be borne by the special assessment district. Not only is this true, but the parties stood by, took no action until after the work was entirely completed, and then filed this bill. So far as the complainants’ right to invoke, this remedy is concerned, the question is ruled against them in various cases. Beginning with the case of Byram v. City of Detroit, 50 Mich. 56 , this court- has steadily refused to grant relief to a complainant in equity who has stood by and permitted a special improvement to be made, knowing that such improvement is to be compensated by a special assessment upon a district in which his property is located. Lundbom v. City of Manistee, 93 Mich. 170 ; Goodwillie v. City of Detroit, 103 Mich. 283 ; Atwell v. Barnes, 109 Mich. 10 ; Farr v. City of *701 Detroit, 136 Mich 200 . The last cited case is controlling of the question of the'complainants’ right to the relief sought.

It is strenuously argued in this case that the assessment was fraudulent, for the reason that this sewer as laid was really laid for the benefit of the health of the city at large, and to avoid polluting the waters of Flint river. It is, doubtless, true that it was thought necessary to carry this sewer to a point where by turning it into the river the public health would be as little affected as possible; but it does not necessarily follow that the sewer was built for the protection of the public health, in the sense that it should become a public charge. It is true of all sewer construction that a public nuisance is to be and must be avoided, but this has never been thought to prevent the levying of a tax for its construction upon a special assessment district. In view of the previous history of the sewer construction in Flint, and in fact upon this whole record as made, we are not able to find any evidence of fraud, or even of unfairness, in the method adopted for providing for the payment for this sewer. The only reason why we are forced to withhold affirmative relief to the defendants is that we do not find the amount of the benefit to these various complainants to have been determined by the legal method pointed out by the statute. It is, no doubt, within the power of the legislature to provide a means for a determination of the benefits actually received, if, in view of this opinion, payment shall be withheld.

The complainants’ bill will be dismissed, and the defendants’ will also be dismissed, without prejudice to any further proceedings which may lawfully be had in the premises.

Blair, Ostrander, Hooker, and Moore, JJ., concurred.