text:
    MAHER v. CITY OF JACKSON.
    1. Municipal Corporations — Cities—Charter—Election.
    The home rule act, 1 Comp. Laws 1915, § 3304 ei seq., makes no provision, either mandatory or permissive, for submitting together alternative charters or parts thereof for the electors to choose between or reject, and provides no rule or machinery to conduct or canvass such election, as provided in certain jurisdictions where a constitution or statute expressly authorizes submission of alternative propositions. It contemplates the submission of one distinct and complete proposed charter to be accepted or rejected by the electors and the submission at the same time of additional independent proposals not covered by the charter as proposed, but which, if adopted by a three-fifths vote, become part of the charter.
    2. Same — Amendment—Elections—Alternative Proposals.
    Under these provisions of the statute the charter commission were not authorized to append a so-called amendment to the proposed charter, containing an alternative provision or clause relating to special assessments for paving to be voted on at the same time as the adoption of the charter and if adopted by a sufficient vote to become part of the instrument in place of a similar section therein included.

      3.. Same — Majority Vote — Statute.
    And although the proposed amendment carried by a majority vote, when the vote on the charter was four to one in favor thereof, the court could not recognize the will of the electors expressed in a manner not legally authorized.
    4. Same.
    And where it was not apparent that any appreciable number of the electors was misled by the submission of the amendment, and the charter went into effect, in due course and was treated as carried, the court could not attack or review the certificate of the canvassing board by declaring that any part had not duly been adopted as certified.
    Appeal from Jackson; Parkinson, J.
    Submitted April 10, 1916.
    (Docket No. 58.)
    Decided April 24, 1916.
    Bill by Elsie Maher and others against the city of Jackson and others for an injunction restraining defendants from collecting certain taxes. From a decree for defendants, complainants appeal.
    Affirmed.

      John F. Henigan and Reece & Blackman, for complainants.

      Lyman B. Trumbull and Wilson & Cobb, for defendants.
   Steere, J.

This suit involves the validity of a special paving tax levied against plaintiffs’ property in the city of Jackson, which adopted a commission charter in 1914, under provisions of the so-called “Home Rule Law” (Act No. 279, Pub. Acts 1909), as amended by Act No. 5, Pub. Acts 1913 (1 Comp. Laws 1915, § 3304 et seq.).

It is not necessary for the purposes of this contention to review in detail all the various steps taken under the act leading up to the adoption of said charter, which was prepared by a commission elected for that purpose in the spring of 1914, and adopted by a ma~ jority vote of the electors at a general election held November 3, 1914. The only portion questioned is serial section 250 of said charter which, under the heading “Pavements,” is as follows:

“Except the cost of intersections and of paving in front of exempt property, the entire cost of the original pavements shall be met by special assessments upon premises included in a special district to be constituted of the lands fronting upon that part of the street or alley so paved or to be paved.”

Prior to January 1, 1915, the city was under the aldermanic system of government, its charter having been granted by the State legislature, which was entirely superseded by the present charter, adopted by its electorate, providing for a commission form of government. The old charter provided that two-fifths of the expense of such portions in front of private property abutting upon the street to be paved should be paid by the abutting property owners and the remaining three-fifths out of the general funds of the city. Presumably as the result of some diversity of opinion amongst themselves, or divided public sentiment over whether the entire expense of paving in front of private property should be borne by the landowners or allotted between the city and abutting owners, the charter commission prepared and submitted to the electors at the same time the proposed charter was voted upon a so-called “amendment” to serial section 250 of the proposed new charter, which amendment, more closely in harmony with the old charter, provided that, except the cost of intersections, etc. (to be borne entirely by the city), abutting owners should pay three-fifths and the city two-fifths. The commission handled this subject in the proposed charter itself, under the heading “Miscellaneous,” in part as follows:

“(303) Sec. 4. There shall also be submitted to the electors, for their approval or rejection, at the same time and upon the same ballot that this proposed char-; ter is submitted, an amendment to section 4 of the' subject ‘Pavements,’ being general paragraph number 250 of said proposed charter, as follows: ‘Except the cost of intersections /and of paving in front of exempt, property, which is to be borne entirely by the city, the cost of original pavements shall be met, three-fifths thereof by special assessments upon premises included in a special district to be constituted of the lands fronting upon that part of the street or alley so paved or to be paved, and two-fifths of the cost thereof shall be borne by the city.’
“(304) Sec. 5. Said proposed amendment shall appear on the ballot below the submission of the charter and the form of submission shall be as follows: Instructions — A cross (x) in the square ([ ]) before the word ‘Yes,’ is in favor of the amendment, and before the word ‘No,’ is against the amendment.
“Shall section 4 of the subject ‘Pavements’ of the proposed charter, which reads as follows: [quoting]— being general paragraph number 250, be amended so as to read as follows: [Quoting.]
[] Yes.
[] No.
“(305) Sec. 6. If this proposed charter be adopted, by the electors, and said amendment be also adopted,, then said amendment shall become a part of the charter and shall be inserted in the place of section 4 under the subject ‘Pavements,’ general paragraph number 250, as now found in this proposed charter.”

The questions of adoption of the charter as a whole and the so-called “amendment” were accordingly submitted upon one ballot, but to be voted upon separately. A statement, with explanation of the essential features of the proposed charter, was issued by the commission in pamphlet form, containing the whole chartei and “amendment.” This was generally distributed throughout the city, and published in full in both daily papers. The purpose of the amendment and manner of voting upon it were also explained. The voters were instructed that those desiring to vote for the charter as it was submitted should vote “Yes” for the charter and “No” for the amendment, and those desiring to vote both for the charter and amendment should vote “Yes” for the ■charter and “Yes” for the amendment, and if the amendment was adopted, it would supersede the provision in section 250 of the proposed charter as to special assessments for paving. The canvass of this election, made by the then common council of the city acting as the legally constituted canvassing board, showed that on the proposition of adopting or rejecting the proposed new charter there were 5,166 votes cast, of which 4,170 were in the affirmative and 996 in the negative, showing a majority in its favor of 3,174, while on the question of adopting the so-called “amendment” there were cast a total of 4,465 votes, of which 2,434 were in the affirmative and 2,031 in the negative, showing a majority in its favor of 403. As a result of this canvass the common council officially declared and -certified the charter adopted in its entirety, but the ¿amendment lost because it had not received a three-fifths vote of the electors voting thereon, as required by section 23 of the home rule act (1 Comp. Laws 1915, § 3326). A mayor and four commissioners were elected under the new charter, who took office January 1, 1915, and proceeded to administer the affairs of the city. In April, 1915, steps were taken to pave Seymour street in said city at an estimated cost of $8,144.60, of which $5,862.20 was to be paid by the abutting property owners and the balance by the city, according to the provisions of serial section 250 of the new charter. In July, 1915, when the city commissioners and assessor sat as a board of review upon a special assessment roll prepared by the city assessor, plaintiffs appeared by counsel and filed their protest against the proceedings, and especially the method by which the assessments were made, but the assessments were subsequently affirmed by resolution of the commission, and on July 81, 1915, a contract was entered into by the city with the defendant Globe Construction Company to do said paving. -On August 27, 1915, this bill of complaint was filed, and an order was made by the circuit judge to show cause why a preliminary injunction should not issue as prayed for, but, after a hearing upon the order to show cause, held September 10,1915, the injunctive relief asked was denied. Plaintiffs’ counsel interrogatively summarize the issues they propose as follows:

“(1) What was the so-called ‘amendment,’ an independent section or proposition, or an alternative section or proposition?
“(2) Did the charter commission have the power under the provisions of Act No. 5 of the Public Acts of 1913, as amended, to submit an alternative proposition or section to the voters?
“(3) If legally submitted, was it adopted?”

It is patent that no question of amending an existing charter is involved here, and provisions of the home rule act upon that subject are not applicable. The commission elected for that purpose worked out in all its details a new and complete charter revision for the city, framed upon a plan of government and administration radically differing from the old, which it was designed to be a substitute for, and take the place of, as an entirety. Having prepared and agreed upon a proposed new charter the commission had the power, and it was its duty, to submit it as a whole to the electors, according to prescribed procedure, for adoption or rejection. The act provides for the submission of but one charter for adoption or rejection, not two or more for the electors to compare and pass upon, or select from. The commission may, however, in its discretion, submit additional matters to the electors under amended section 23 (Act No. 5, Pub. Acts 1913 [1 Comp. Laws 1915, § 3326]), which provides, so far as material here:

“There may be submitted with any charter or an amendment to a charter independent sections or propositions, and such of them as receive a three-fifths vote of the. electors voting thereon shall become a part of such charter, or shall prevail as such amendments.”

Under this provision the commission apparently conceived itself empowered to submit to the electors a proposed “amendment” to a proposed charter, and in the proposed charter, not yet adopted, to prescribe the manner of submitting and voting upon the proposed amendment. It was not in fact or name an “independent section or proposition.” In force and effect it was a proposed alternative to serial section 250 of the proposed charter, submitted to the electors to choose between the two. Whichever was adopted, the other was necessarily rejected. Our home rule act has made no provision, either mandatory or permissive, for submitting together alternative charters or parts of charters for the electors to choose between, or reject, and provides no rule or. machinery to guide and control the conduct and canvass of such an election, as provided in certain jurisdictions where a constitution or statute expressly authorizes submission of alternative propo ■ sitions. If under this act alternative ‘propositions or sections or amendments could be submitted as to one section of a proposed charter, it could be done as to all, and amendments might be submitted to proposed amendments, until the electors would be confronted by a confusing variety of proposed charters and conflicting propositions, with no rule or restraint as to the manner of submission or canvassing the result. The act only contemplates the submission of one distinct and complete proposed charter, to be accepted or rejected by the electors, and permits submission at the same time of additional independent sections or propositions, not covered by the charter as proposed, but which, if adopted by a three-fifths vote, while the proposed charter only requires a majority, would be added to and become a part of the charter, which otherwise would remain unchanged.

It is evident, and necessarily conceded, that plaintiffs could have no standing in court if the so-called “amendment” was authorized by and submitted under section 23 of the act, for it failed to carry by a three-fifths vote; but it is pointed out that the charter commission did, in fact, submit to the electors an “alternative article or proposition” in the form of a substitute paving section for serial section 250 of the proposed charter, which received a clear majority of those voting upon it, and it is urged that, despite the “bungling manner” in which it was submitted, a majority of the voters, having voted for the adoption of the alternative proposition, should not be disenfranchised and their will, as registered by their votes, held for naught, by resort to section 23 of the act, which requires a greater majority than a direct vote for the charter as a whole, and which is not applicable to such an alternative proposition or section, but that under the general powers conferred by the Constitution and laws enacted pursuant thereto, authorizing the electors of a city to “frame, adopt and amend its charter,” the implied authority exists to vote upon alternative propositions, or substitute sections when submitted, and when a majority expresses its preference for them, the electors’ choice in that particular should be recognized in the canvass, and adopted without discrimination as to the size of the majority.

Without questioning the authorities cited in support of the plenary powers of municipalities over their local affairs, they are nevertheless subject, in framing their charters under which those powers may be exercised, to the Constitution and general laws of the State, and the home rule law was enacted in compliance with an express constitutional requirement that the legislature provide a general law for their incorporation. In framing or amending a municipal charter, the will of the majority can only be recognized when clearly expressed in compliance with the statute. In the instant case it was neither in compliance with the statute nor clearly expressed. As before stated, the statute does not contemplate nor provide the machinery for voting on alternative propositions, and the arguments of counsel touching the result in this case illustrate the importance of such provision where the submission of alternatives is authorized. Counsel for defendant point out that less than half the votes cast in favor of the charter were cast in favor of the so-called “amendment,” and say:

“The charter itself carried by a vote of four to one, while the amending proposition had but a small majority, which shows clearly that the charter itself would have carried regardless of the opportunity for amendment”

— while counsel for plaintiffs contend that those who voted on the question of adoption or rejection of the charter as a whole and failed to vote on the so-called “amendment” did not vote for or against the paving proposition at all, and state:

“The question was submitted in such a way that several different methods of determining the vote may be used.”

This is illustrated at considerable length in their brief, showing various results which might be reached through possible methods of canvassing the vote as cast, concluding with the one most acceptable to plaintiffs, which is as follows:

“There is still another way to figure the vote on the charter and alternate paving proposition. Two thousand four hundred thirty-six votes were cast in favor of the alternate paving proposition. It is claimed 2,031 were cast against it. If that is so, the 2,031 votes were cast for the paving proposition in the charter, but out of the 2,031 votes, 996 were against the charter and the paving proposition contained in it. These votes should have been deducted from the 2,031 votes, leaving 1,035 votes for the paving proposition contained in the charter as submitted, because, being against the charter, they certainly were against the paving proposition embraced in it. This would leave a majority in favor of the so-called ‘amendment’ of 1,401 votes of a total vote of 3,471 votes, of which more than three-fifths were in the affirmative.”

As before noted, the legislature has nowhere authorized, either directly or indirectly, the submission at the same time of more than one proposed charter, nor proposed alternative sections of a proposed charter, and consequently has made no provision for the conduct and canvass of such an election. For the court to recognize a vote upon alternative sections as valid and determine between the plausible contentions of opposing counsel as to how the same should be counted and canvassed would be to legislate, and thereby assume the powers of a co-ordinate department of the State government.

The proposed charter in its entirety was legally submitted to the electors for a “Yes” or “No” vote upon the question of its adoption, and received an affirmative vote of 4 to 1. It is not shown that the majority, or even a single elector, was deceived or misled by the manner of its submission into voting contrary to intention upon that proposition. The city is now governed, and its affairs administered, by authority of this charter, under a commission form of government, and this bill seeks to restrain certain of its officers from exercising official duties authorized by the charter, on the ground that a certain portion of that charter was not legally adopted, and the certificate of election of the canvassing board was false in fact, thus indirectly attacking the decision and official certifica.tion of an election board. If at any time any portion of this charter proves unsatisfactory to a majority of the electors, it is readily within their power to amend it in a manner pointed out in the act.

We discover no reason for disturbing the decree of the Jackson county circuit court in chancery dismissing plaintiff’s bill of complaint, and the same is hereby affirmed, with costs to defendants.

Stone, C. J., and Kuhn, Ostrander, Bird, Moore, Brooke, and Person, JJ., concurred.


source: Caselaw Access Project

author: Bird, J. Ostrander, J.

license: Public Domain

text:
    BOARD OF EDUCATION OF CITY OF HASTINGS v. GILLELAND.
    1. Certiorari — Review oe Eminent Domain Proceedings — Public Interest.
    The writ of certiorari is not available to an individual who has no direct or particular interest in the proceeding to be reviewed, unless he shows that he will suffer special injury beyond that which will affect him in common with, the public or others similarly situated.
    2. Same — Eminent Domain — Parties.
    Real property owners whose holdings did not adjoin parcels taken in a condemnation proceeding for a high school site, and who would merely be inconvenienced by the taking of the land, in having to travel one block out of the direct course because of the vacation of the public street, had no such interest as would warrant them in intervening and could not set aside the proceedings by writ of certiorari.
    Certiorari to Barry; Smith, J.
    Submitted October
    Í3, 1915.
    (Docket No. 17.)
    Decided April 29, 1916.

      Proceedings in eminent domain by the board of education of the city of Hastings for the condemnation of a schoolhouse site. Alexander N. Gilleland and others intervened as respondents and objected to the proceedings. Judgment for petitioners on objections to the petition. Intervening respondents bring certiorari.
    Affirmed.

      Colgrove & Potter, for petitioners.

      Ellis & Ellis, for intervening respondents.
   Bird, J.

The city of Hastings constitutes a single school district. It was recently decided by the district to erect a new high school building. The board of ■education was desirous of locating it upon a plat of ground made up of a portion of Temple Square, a portion lNof the City Park, and that portion of a street known as “South Broadway,” which lies between them. The city council agreed to vacate these parcels on condition that the inhabitants were not opposed. A postal card vote developed that there was a majority in favor of the proposition, and the parcels were accordingly vacated by the council. For the purpose of acquiring the fee, condemnation proceedings under the statute followed, at which respondents appeared by counsel and interposed certain objections to the validity of the council proceedings, by which the parcels were vacated. Objection was made by counsel for the board that respondents had no such interest in the proceedings as gave them the right to appear as parties thereto. The circuit judge before whom the proceedings were had disposed of the questions raised on the merits, but did not rule upon petitioners’ objection, save by inference in allowing respondents to be heard. The condemnation proceedings resulted in the parcels being condemned, and compensation fixed. Respondents have removed the proceedings to this court by writ of certiorari, and several questions affecting their validity are made and argued. The question of the right of respondents to be heard in the proceedings must be first determined.

From the return of the circuit judge to the writ, it appears that the respondents are resident taxpayers of the district; that they reside on and own property fronting on South Broadway a block distant from the parcels vacated, but that they own no property adjacent to, or fronting upon, the parcels so taken. It further appears that the only inconvenience the respondents will suffer by reason of the closing of that portion of South Broadway is in traveling north from their homes. It will compel them to divert either to the east or west one block. It is a rule of law well established that a writ of certiorari is not available to an individual who has no direct or particular interest in the proceeding sought to be reviewed, unless he shows that he will suffer special injury beyond that which will affect him in common with the public or others similarly situated. Davison v. Otis, 24 Mich. 23; People v. Leavitt, 41 Mich. 470 (2 N. W. 812); Vanderstolph v. Boylan, 50 Mich. 330 (15 N. W. 495); Wolpert v. Newcomb, 106 Mich. 357 (64 N. W. 326) ; 6 Cyc. p. 768; 5 R. C. L. p. 256; 4 Standard Enc. of Procedure, 903. The same rule is also applied to other remedies. People v. Inspectors of State Prison, 4 Mich. 187; Miller v. Grandy, 13 Mich. 540, 551; Smith v. City of Saginaw, 81 Mich. 123, 127 (45 N. W. 964); Thomas v. Hamilton, 101 Mich. 387, 388 (59 N. W. 658); Brophy v. Schindler, 126 Mich. 341, 347 (85 N. W. 1114) ; Sweet v. Smith, 153 Mich. 674 (117 N. W. 59). It is held in People v. Schell, 5 Lans. (N. Y.) 352, that:

“The writ will not be sustained to review the proceedings of a highway commissioner in laying out a road, where it appears that the relator was not a party to the proceedings for laying out such road, and. has no direct interest in the road, either as owner of property over which it passes, or otherwise; the only interest which he claimed in the proceeding being that his business as a tavern keeper will be injured by the highway to be laid out, by the diversion of travel from the road on which his tavern is located."

The most that can be said of the situation here presented is that respondents will be inconvenienced by the closing of that portion of South Broadway which lies a block north of them, and in consequence they will be compelled to go one block either to the right or left. This inconvenience will not establish such an interest as will enable them to be admitted as parties to the proceeding. Buhl v. Depot Co., 98 Mich. 596 (57 N. W. 829, 28 L. R. A. 392). In this case a very similar situation of inconvenience is presented and it is held that the mere cutting off of one’s ingress and egress by the closing of a street, rendering it less convenient is damnum absque injuria. To the same effect see Sioux City Seed, etc., Co. v. Railway Co., 184 Mich. 181 (150 N. W. 841); City of Chicago v. Building Ass’n, 102 Ill. 379 (40 Am. Rep. 598). The frequency with which the rule has been applied where attempts have been made to interfere with municipal action, leaves no room for doubt that it should be applied in the instant case. It is suggested, however, that a larger right to intervene exists .where the municipality is dealing with parks and public grounds which have been dedicated to the public use. An examination of the reported cases discloses no such exception to the rule. 2 High on Injunctions states the rule as follows:

“And where, under a general power in a city charter to establish and regulate markets, the corporate authorities of the city are about to remove a market house, taxpayers, as such, have no sufficient ground for enjoining the removal, whatever may be the rights of adjacent proprietors and others injuriously affected thereby. So a taxpayer in a city, who files a bill in behalf of himself and other taxpayers to enjoin the city from selling a public park or square, is not entitled to the relief when he has no land abutting upon the square, and when he has no private interest involved other than or different from the body of taxpayers.” Section 1301.

In Tifft v. City of Buffalo, 65 Barb. (N. Y.) 460, the complainant sought to restrain the defendant city from selling a public square to the Union Hotel Company. It appeared that the public square was situate between Main and Washington streets; that complainant was the owner of property fronting on Main and Washington streets, but that he owned no property fronting on the park. The question being raised that complainant was not a proper party to maintain the suit, the court held “that he had no standing in a court of equity entitling him to maintain the action.”

We therefore conclude that respondents did not have the required interest to authorize them to intervene in these proceedings. This'leaves the court without power to consider the other important questions raised by the record. The writ, having been improvidently granted, will be dismissed, with costs to the petitioners in the condemnation proceedings.

Stone, C. J., and Kuhn, Moore, Steere, Brooke, and Person, JJ., concurred with Bird, J.

Ostrander, J.

(concurring). This is a condemnation proceeding, the proceeding being reviewed by certiorari. The petition for a jury, filed by two members of the board of education of Hastings, sets out, among other things, that the common council of the city of Hastings vacated, discontinued, and abandoned three certain pieces of land, one of them a portion of a public park and one a street, and deeded them to the board of education, which therefore possesses all' of the title to the lands formerly possessed by the said city; that the lands were originally platted by the owners thereof in the year 1836, the plat being recorded; that by virtue of the dedication evidenced by the plat, and the statute then in force, it is believed that a base fee was conveyed to the county in trust for the purposes designated in the plat, and that , by vacating a portion of the plat the lands reverted to the original owners or to the person ox persons to whom the owners may have conveyed them. The prayer is for a jury—

“to ascertain and determine the just compensation to be made for the real estate, * * * the same being required by the said board of education of said school district for a site for a school house.”

The rightful owners, assuming that the land reverts, are not known. Plaintiffs in certiorari are not, as the record is understood, owners of or interested in any property which abuts upon the vacated street or the park or Temple Square, the land sought to be condemned. It appears that the jury determined the necessity for taking the property, and the damages were fixed at $100.

Plaintiffs in certiorari attacked in the court below, and now attack, the validity of the action of the common council in vacating the said premises, as well as the right of the board of education to fix a site for a school. The objections made by them were overruled by the circuit judge, who, however, expressed no opinion concerning their right to appear and contest the right of the petitioners to institute and carry on the proceeding. It is not clear whether the validity of the action of the common council in vacating the premises was passed upon, or whether the objections presented were for other reasons overruled. The serious question presented is whéther the petitioning board of education having set out an alleged title to or interest in the premises derived from the city of Hastings through certain actions of the common council of the city— made a profert of an alleged interest so derived — the validity of such derived title may be inquired into and the action of the common council investigated at the instance of any citizen taxpayer of the city; at least, whether any citizen taxpayer may question the action vacating the park.

It is understood, from the record presented, that the park in question here was dedicated by the owners for, and has for many years been, a public park, from which fact it is assumed that the city of Hastings, or some other public authority, held the land in trust for a public park. This assumption excludes the idea that the trustee is a proprietor, or, as proprietor, has any authority over the park. Board of Education v. City of Detroit, 30 Mich. 505. Nor is the dedication here such an one as was involved in Hinchman v. City of Detroit, 9 Mich. 103, and in Riggs v. Board of Education of Detroit, 27 Mich. 262. It is explained in the case last mentioned that the interior open spaces in the original plan of the city of Detroit were set apart to such uses as the council, in its legislative capacity, might at any time provide.

When all of the proceedings shown by or referred to in the record are considered, it becomes apparent that the action of the common council and of the board of education which was taken, the validity of which is questioned, was designed to accomplish a particular purpose. The common council, it may be assumed, would not have abandoned, or surrendered, the park it held in trust unless the premises were devoted to a site for a schoolhouse. The purpose was to place at the disposal of the board of education a part of the park, a portion of a public street, and another piece of property called “Temple Square,” to be used for school purposes. Pursuant to this purpose, the board of education selected the premises as a site for a school house, accepted a deed from the city, and instituted this proceeding.

The general rule is that the erection of buildings upon land dedicated and held by a municipal corporation for a park is unauthorized, and that such buildings are a public nuisance, which may be abated by any one aggrieved. 21 Am. & Eng. Enc. Law, p. 1072; City of Hopkinsville v. Jarrett, 156 Ky. 777 (162 S. W. 85, 50 L. R. A. [N. S.] 465); Codman v. Crocker, 203 Mass. 146 (89 N. E. 177, 25 L. R. A. [N. S.] 980, and note); Porter v. Bridge Co., 200 N. Y. 234 (93 N. E. 716, 21 Am. & Eng. Ann. Cas. 684) ; Church v. City of Portland, 18 Or. 73 (22 Pac. 528, 6 L. R. A. 259, and note).

It seems to be assumed by plaintiffs in certiorari that the city of Hastings might have abandoned the park — might have declined longer to hold the land embraced therein for park purposes. The formal resolution of the common council was one “to discontinue and abolish a part of a park in the fourth ward of the city of Hastings,” describing a piece of land 100 by 300 feet in quantity, without reference to the ultimate purpose for which the land was to be used. This was May 3, 1915. Objections were later on, and on June 4, 1915, overruled, and a resolution of the council was passed, donating the land in trust to the school district for schoolhouse purposes, and directing the city clerk to execute a deed of the premises to the school district, in trust, for schoolhouse purposes. It was on June 5, 1915, that the board of education determined and established the site for a schoolhouse and authorized two members of the board to institute proceedings to condemn the land.

A careful review of authorities has convinced me that my Brother BIRD is right in denying plaintiffs in certiorari the right to review, in this proceeding, the action of the common council and the action of 'the board of education about which they complain. A school district has authority to institute proceedings to condemn land for a schoolhouse site. Such a proceeding being instituted and concluded by a confirmed verdict of a jury, this court should, upon certiorari, examine only the questions relating to the public character of petitioners, the public purpose to be subserved, and the regularity of the condemnation proceeding, and do this at the instance of interested persons. Petitioners are not, to this extent, more than any and all citizens of the community, interested. If public or private rights have been invaded in any of the proceedings anterior to this one, it will be time to consider them when they are properly asserted. In this proceeding we are not called upon to consider them.

Stone, C. J., and Steere, J., concurred with Ostrander, J.


author: Stone, C. J.

text:
    SCHOUWINK v. FERGUSON.
    1. Appeal and Error — Moot Question — Certiobabi—Demurrer— Mandamus.
    After the expiration of the license period for which relator’s bond was preferred, the court would not review, on certiorari, the question whether or not the city council could reject the surety for insufficiency, a bond being required from the operators of motor bus lines during the term of license; the question thereafter became a moot question and any action of the court became futile.
    2. Mandamus — Practice—Demurrer.
    The practice of demurring to the petition of the relator in mandamus is not to be encouraged; the better practice is to answer it. Judicature Act, chap. 36, §§ 1-4; 3 Comp. Laws 1915, § 13437 et seq.; Circuit Court Rule 50.

      Certiorari to superior court of Grand Rapids; Dun-ham, J.
    Submitted April 27, 1916.
    (Calendar No. 27,140.)
    Decided May 6, 1916.
    Mandamus by Garrett Schouwink against Raymond M. Ferguson, the common council of the city of Grand Rapids, and others, to compel respondents to accept the bond of and issue to relator a license to operate a motor bus in the city of Grand Rapids. An’ order sustaining a demurrer to the petition is reviewed by relator on certiorari.
    Dismissed.

      Sheridan F. Master, for relator.

      B. M. Ferguson, City Attorney, and Frank E. Shaw, Assistant City Attorney, for respondents.
   Stone, C. J.

The petition shows that the relator is the owner and operator of a “motor bus,” and held a license and permit under a certain ordinance of the city of Grand Rapids, which license terminated by its terms May'1, 1916.

It appears from the record that, having operated his motor bus for some time, his bond became inoperative, and, desiring to comply with the terms of the said ordinance, he procured a new bond or policy of insurance, alleged to be in the form, terms, penalty, etc., prescribed by the ordinance, executed by the National Indemnity Exchange of Kansas City, Mo., as surety, which corporation, it is alleged, was authorized to do business in this State, and tendered the same to the city attorney of Grand Rapids for approval, and to the city clerk for filing, but which tender was not accepted ; the said city attorney refusing to approve and thé city clerk to file the same, for the sole reason that the common council had by resolution “recommended that bonds issued by said company be rejected, as they appear to be inadequate.”

Contending that the adequacy of bonds executed by such surety companies was exclusively within the powers of the commissioner of insurance of the State, and not within the domain of any discretion of any of the respondents, relator brought mandamus in the superior court of Grand Rapids to compel such approval and filing of his bond. The respondents demurred to the petition. On the hearing of the demurrer the same was sustained, and relator’s petition was dismissed. Whereupon relator applied to this court for and secured a writ of certiorari on February 1, 1916.

By the seventh paragraph of relator’s petition for a mandamus it appears that the certificate of authority issued .by the commissioner of insurance expired on the last day of February, 1916. We quote from the record:

“Now know ye that said National Indemnity Exchange is authorized to exchange contracts or agreements of fire, theft, and liability insurance on motor vehicles until and including the last day of February in the year 1916, unless this authority shall before that time be revoked.”

It appearing by the record that relator’s license expired May 1, 1916, and that the certificate of authority expired February 29, 1916, we have nothing before us but abstract questions of law, which do not rest upon existing facts or rights. The questions involved are moot questions, and the case becomes a moot case, which we must decline to consider. When it appears by the record that action by the court would be futile, by reason of the lapse of time, the case will be dismissed. Howe v. Doyle, 187 Mich. 655 (154 N. W. 62) ; Carlson v. Wyman, 189 Mich. 402 (155 N. W. 418).

The result of a reversal here would be to direct the court below to proceed to hear the case. It should not be required to issue a mandamus where its effect would be of no avail or idle. Fuchs v. Common Council, 166 Mich. 569 (132 N. W. 96). This case was submitted to this court but a few days ago; the reply brief of the relator having been filed April 26, 1916.

We will say in passing that the practice of demurring to a petition for mandamus is not to be encouraged ; the better practice being to answer the petition. Lauzon v. Board of Supervisors, 129 Mich. 269 (88 N. W. 628); Circuit Court Rule 50; Judicature Act, chap. 36, §§ 1-4 (Pub. Acts 1915, Act No. 314 [3 Comp. Laws 1915, §§ 13437-13440]).

The writ of certiorari is dismissed, without costs.

Kuhn, Ostrander, Bird, Moore, Steere, and Person JJ., concurred. Ostrander, J., did not sit.


author: Bird, J. Ostrander, J. Brooke, J.

text:
    JASNOWSKI v. BOARD OF ASSESSORS OF THE CITY OF DETROIT.
    1. Automobiles — Taxation—Constitutional Law.
    The tax imposed on motor vehicles by Act No. 302, Pub. Acts 1915, entitled “An act to provide for the registration, identification and regulation of motor vehicles operated on the public highways of this State and of the operators of such vehicles and to provide for levying specific taxes upon such vehicles so operated and to provide for the distribution of such funds and to exempt from all other taxation such motor vehicles so specifically taxed,” etc., is * imposed not on the property, but upon- the privilege of operating automobiles on the highways of the State, and partakes of the nature of (a fee for privilege or license rather than a property tax. And the statute is sufficiently entitled to sustain the validity thereof, as against the objection that the title included two objects.
    2. Same — Taxation—Exemption—Constitutional Law.
    What classes of property shall be taxed and what shall be exempted except as restricted by the Constitution is a question that rests within the discretion of the legislature. It is within legislative authority to exempt from other forms of taxation, property which pays a specific tax, whether or not the tax is levied on the property itself or on the right to use it in a certain way.
    3. Same — Review of Legislative Discretion.
    And the question whether the motor vehicle tax should be in lieu of, or in addition to, all other forms of taxation was one which appealed to the legislative discretion, that, once exercised, was not reviewable by the courts.
    4. Same — Specific Tax — Highways.
    The statute is not unconstitutional because it provides that the funds secured by the specific tax shall be devoted to upbuilding the State highways in that it infringes the provisions of section 1, Art. 10, of the Constitution, limiting the sources of contributions to the primary school fund to that purpose alone; and the fact that some automobiles were owned by corporations and included in the valuation on which they paid taxes did not have the effect of invalidating the classification, a’s those so owned and taxed were exempt from other forms of taxation under express terms of Act No. 302, Pub. Acts 1915.
    5. Same — Uniformity.
    The act is valid as a classification and does not fail in the matter of uniformity.
    6. Same — Constitutional Law — Home Rule.;
    Nor was the statute invalidated by providing for a tax on automobiles used in one division or corporation and for the expenditure of the funds in other counties; it is within the legislative authority to determine what roads should be improved by a tax that became a State fund when paid.
    Kuhn, Ostrander, and Brooke, JJ., dissenting.
    Certiorari to Wayne; Mandell, J.
    Submitted April 4, 1916.
    (Calendar No. 27,160.)
    Decided May 12, 1916.

      Mandamus by Charles H. Jasnowski, prosecuting attorney of the county of Wayne, on relation of Julius L. Krimmel against Daniel L. Dilworth and others, constituting the board of assessors of the said county, to compel the respondents to assess motor vehicles in the city of Detroit. An order denying the writ is reviewed by relator bn certiorari.
    Affirmed.

      Harry J. Dingeman and Vincent M. Brennan, for relator.

      Grant Fellows, Attorney General, and Leland W. Carr, Assistant Attorney General, for respondents.

      Fred A. Baker, amicus curiae.

   Bird, J.

This proceeding questions, upon constitutional grounds, the validity of the Michigan motor vehicle law, passed by the legislature of 1915, the same being Act No. '302 of that session (1 Comp. Laws 1915, § 4797 et seq.).

1. The validity of the act is assailed because the legislature failed to observe the constitutional requirement that “no law shall embrace more than one object.” Article 5, § 21. The title of the act reads:

_ “An act to provide for the registration, identification and regulation of motor vehicles, operated on the public highways of this State and of the operators of such vehicles and to provide for levying specific taxes upon such vehicles so operated and to provide for the disposition of such funds and to exempt from all other taxation such motor vehicles so specifically taxed, registered, identified and regulated and to repeal all other acts or parts of acts inconsistent herewith or contrary hereto.”

It is pointed out that this title provides for both regulation and taxation — two distinct objects. Whether the act shall be declared invalid on this ground must turn upon the nature of the tax which the act imposes. Should the several provisions of the act relating to taxation be adjudged a property tax, counsel’s objection would be a serious one. If, however, the provisions be construed as an occupation or privilege tax, the act would not be open to that objection. The legislature, in the exercise of the police power of the State, may enact a regulatory statute in which regulation and taxation are so blended as to have but a single purpose. An illustration of this may be found in the liquor law of 1887 (Act No. 313, Pub. Acts 1887), which was an act providing for the “regulation and taxation” of the liquor traffic. The title to that act was assailed on the same ground as the present one, but this court approved it in Robison v. Miner, 68 Mich. 549 (37 N. W. 21). A careful study of the various provisions of the act persuades us that a privilege tax was intended father than a property tax. The tax is not imposed upon the property, but upon the privilege of operating a motor vehicle upon the highway. That it was not intended by the legislature to impose a property tax is evidenced in part by the fact that one may own one or more motor vehicles and have them in his possession, and they will not be subject to the provisions of the act, unless he chooses to operate them upon the highway. And a person who is not the owner of a motor vehicle is liable for the tax if he operates one upon the highway for a period greater than 30 days. The act provides that motor vehicles in stock owned by manufacturers, except those vehicles licensed to go upon the highway, shall be subject to the personal property tax. The act provides for no exemption from the payment of this tax, even though the owner has theretofore paid a property tax on his motor vehicle. These and other like considerations tend to characterize the act as one imposing a tax for the privilege of operating motor vehicles upon the public highways of the State. In view of these, considerations we are of the opinion that the tax imposed is a privilege tax and is one of the regulatory features of the act. This being so the objection that the title gives notice of two distinct objects is without force.

2. A further contention is made that the legislature was not acting strictly within its authority when it exempted motor vehicles complying with the law from all other forms of taxation. It is urged that this action upon the part of the legislature in exempting such a large amount of property from the ad valorem tax rolls of the State was at least in’ contravention of a fixed policy theretofore pursued by the State. The question as to what classes of property shall be taxed and what shall be exempted, except as restricted by the Constitution, is one which rests within the discretion of the legislature. People v. Railway, 1 Mich. 458; People v. Auditor General, 7 Mich. 84; Board of Supervisors v. Auditor General, 65 Mich. 408 (32 N. W. 651); 12 Am. & Eng. Enc. Law, p. 272; 37 Cyc. p. 885; Cooley on Taxation (3d Ed.), pp. 262, 342.

It is within the power of the legislature to exempt from other forms of taxation property which pays a specific tax, and this is true whether the specific tax is. levied upon the property itself or upon the right to use the property in a certain way. Union Trust Co. v. Common Council, 170 Mich. 692 (137 N. W. 122); State v. Telegraph Co., 73 Me. 518; Douglass v. City of Anniston, 104 Ala. 291 (16 South. 133); People v. Coleman, 121 N. Y. 542 (25 N. E. 51); Cape Fear Bank v. Edwards, 27 N. C. 516; Oil City v. Trust Co., 151 Pa. 454 (25 Atl. 124, 31 Am. St. Rep. 770); Vicksburg Bank v. Worrell, 67 Miss. 47 (7 South. 219).

The first case cited deals with our mortgage tax law. That law provides a specific tax upon mortgages and exempts them from further general taxation under the laws of this State. This phase of the law was upheld by this court.

In the last case cited it was said:

“If the legislature deems it wise to compound for all other taxes on a particular kind of business, by .receiving a prescribed' sum as a substitute for all taxes, it must be assumed by the courts that it was the legislative determination that the sum fixed was a proper ■equivalent for the taxes obtainable in a different mode, and that it was a proper exercise of legislative power. This results, necessarily, from the legislative control ■over the subjects of taxation, restrained only by constitutional requirements, obligatory alike on the legislature and the courts. Where the particular arrangement of taxation provided by legislative wisdom may be accounted for on the assumption of compounding or commuting for a just equivalent, according to the determination of the legislature, in the general scheme of taxation, it will not be condemned by the courts as violative of the Constitution.”

It may well be assumed that the legislature gave heed to the growing demand among the1 people of the State for improved highways and concluded that the motor vehicles, which were largely responsible for that ■demand, should bear the expense of the betterments, .and accordingly imposed this form of contribution. The question as to whether this tax should be in lieu ■of, or in addition to, all other forms of taxation, was •one which appealed to the discretion of the legislature. Having exercised that discretion, it is not for the courts to declare that it did not exercise it wisely or justly.

3. Section 4, article 10, of the Constitution, provides that “ the legislature may by law impose specific taxes, which shall be uniform upon the classes upon which they operate.” It is argued that the act offends against this provision of the Constitution in that it creates a class for the individual owners of motor vehicles and levies a tax thereon of 25 cents per horse power, and 25 cents per hundredweight, and another class for the manufacturers and levies a flat rate of $10 per car. But within this latter class is not included the manufacturer’s' car for private use or hire. The cardinal purpose of the manufacturer is to manufacture and sell motor vehicles. In accomplishing this purpose they are incidentally used on the highway. The chief object of the individual in owning a motor vehicle is to use it for business or pleasure upon the highway. This difference in ownership and use of the motor vehicle constitutes a reasonable distinction, which will support the classification which the legislature has seen fit to make. It will be observed that all persons in a given class are treated alike. When this is accomplished the constitutional mandate with reference to uniformity is satisfied. 36 Cyc. p. 992, and cases.

4. Because the act provides that the money raised by this tax shall be devoted to the upbuilding of the highways of the State, it is insisted that it infringes the constitutional provision that:

“All subjects of taxation now contributing to the primary school interest fund under present laws shall continue to contribute to that fund. * * *’s Section 1, art. 10.

It is contended that certain corporations which were contributing to the primary school interest fund when this constitutional provision became effective in 1909, were then owners of motor vehicles and were taken into consideration by the assessors in determining the value of the corporate property for the purpose of taxation, and hence contributed to the said fund. We think a reasonable construction of this constitutional provision is that it has reference to the subjects of taxation as a class. The taxation of motor vehicles as a class of property has never contributed to the primary school interest fund. The mere fact that a few motor vehicles were included in the corporate property of the railroads and other corporations when the value of their property was determined by the State board of assessors for the purpose of taxation, does not thereby bring them as a class within the meaning .of that provision.

It must however, be held that motor vehicles owned by and used in the business of companies assessed by the State board of assessors are not subject to the provisions of this act. They are exempt from other forms of taxation, the same as the horses and wagons were which they displaced. This is due to the fact that the tax imposed upon such companies is in lieu of other forms of taxation. The difference in the use and ownership of motor vehicles when possessed by these companies justifies a different classification for the purposes of taxation.

5. The final objection is that:

“The act is void because it seeks to impose a specific tax upon personal property not devoted to the public use; it exempts such property from ad valorem taxation, and provides for the collection of money by taxation from owners of vehicles in cities and villages, to be expended on the roads in the townships outside the limits of such cities and villages.”

What has already been said will suffice on the first and second points raised by this objection. The third point is answered, in my opinion, by the constitutional provision which authorizes the State to engage in works of internal improvement of this character. Article 10, § 14. The tax is levied by State authority, and when collected goes into the State treasury and becomes a part of the State highway fund. And we think the constitutional permission referred to furnishes a basis for the action of the legislature in disbursing the fund as outlined by the act, even though it results in restricting betterments to territory outside of the limits of cities and villages. Obviously all of the wagon roads of the State cannot be improved in one season. If they cannot, then some person or body must have the authority to determine which of them shall be first improved. The legislature has assumed this authority and we think properly so.

We are of the opinion that the act should not be declared invalid for the reasons urged. The order of the trial court is affirmed.

Stone, C. J., and Moore, Steere, and Person, JJ., concurred with Bird, J.

Ostrander, J.

(dissenting). A majority of the justices being of opinion that the statute in question is valid, I should register a bare dissent if the Constitution did not require reasons for a dissent to be stated.

It is said in the majority opinion that “a careful study of the various provisions of the act persuades us that a privilege tax was intended rather than a property tax.” This proposition is advanced in the face of a contrary, express, legislative declaration. In the title the act is described as one “to provide for levying specific taxes upon such vehicles so operated. * * * ” It is provided in section 7 that the secretary of State shall collect taxes before registering a motor vehicle, “which taxes shall be all the lawful tax collectible on such motor vehicle and shall exempt such motor vehicle from all other forms of taxation.” In the body of the act, while there are some inconsistent provisions and some phrasing and some provisions upon which one may insecurely hang the theory of a privilege rather than a property tax, it is made plain that one object of the act is to take motor vehicles operated on the highways out of the class of property paying taxes upon an ad valorem, basis and put them into a class which shall pay specific taxes; to substitute one method of taxing property for the' other. The purpose made manifest in the act is not a purpose to confer upon automobile, owners, or upon persons using automobiles, a privilege, not a purpose to tax a privilege, or a business, or occupation, but a purpose to tax property. The act bears no resemblance to the liquor law of 1887, considered in Robison v. Miner, referred to in the majority opinion. To say that the legislature may exempt from other taxation property which pays a specific tax is to state a proposition which involves the idea that the specific tax is a tax on property. The specific tax levied upon mortgages and land contracts is a tax upon property, and to sustain the legislation which imposed the tax is not to sustain the proposition that the act in question here provides for a privilege tax.

The proposition upon which the majority opinion must rest is not that a specific tax upon property may be in lieu of all other taxes upon the property, but is that a privilege tax may be levied which shall be in lieu of all taxes upon a certain class of property. Because if it is conceded that the tax imposed by this act is a tax upon property, it must also be conceded that the act has more than one object. The legislation is, in my opinion, a perfect example of an act embracing more than one object, and it illustrates the evil at which the constitutional inhibition which demands that no act shall embrace more than one object is aimed. If the act provides for a privilege tax, the tax and privilege should go together. In the operation of this law they will not go together. And, in the majority opinion, it is found to be necessary to create a class of automobile users who are exempt from payment of the privilege tax. If it is not a tax upon property, and is a privilege tax, then it does not at all interfere with the assessment of property by the State board of assessors. The assessment of property which they are required to make will be neither increased nor diminished on account of the fact that certain corporations, the property of which they value for taxation, own automobiles which they operate upon the highways.

The majority opinion rests, also, in part, and in essential part, upon the proposition that the legislature may exempt from taxation such property as it chooses. This is undoubtedly the statement of a general rule. I think it unnecessary to pursue the subject beyond remarking that in my opinion the power to exempt property from taxation is not unlimited, nor is the power unlimited to bestow for the benefit of one local community the taxes contributed in another.

I content myself with the attempt to point out that this act has various objects, the combination of which in one statute may be supposed to have contributed to its enactment.

Kühn, J., concurred with Ostrander, J.

Brooke, J.

(dissenting). I agree with my Brother Bird in holding that the act in question does not offend section 21, article 5, of the Constitution, which provides that “no law shall embrace more than one object, which shall be expressed in its title.” The obvious purpose of the legislature in enacting the legislation in question was the regulation of the operation of motor vehicles upon the highways of the State, and considering broadly such purpose, there can be no doubt that the imposition of a specific tax upon such motor vehicles is merely incidental and does not constitute a second “object.” The title as amended meets the objection pointed out in Vernor v. Secretary of State, 179 Mich. 157 (146 N. W. 338, Am. & Eng. Ann. Cas. 1915D, 128).

I think that the determination of my Brother Bird that the tax should be regarded as one upon the privilege of operating an automobile instead of a tax upon property is wrong, though perhaps unimportant. Under the Constitution of 1909 (section 4, art. 10) the legislature may by law “impose specific taxes, which shall be uniform upon the classes upon which they operate.” This power was recognized and affirmed in Union Trust Co. v. Common Council, 170 Mich. 692 (137 N. W. 122), where a specific tax upon mortgages and land contracts was imposed in lieu of all other taxes. From the early case of People v. Auditor General, 7 Mich. 84, it has been the law in this State that “the legislature has the power of prescribing the subjects of taxation and of exemption.” It is clear that the act in' question does not seek to exempt automobile property from taxation, but simply changes the method of raising taxes thereon from an ad valorem, basis to a specific basis.

I am further in accord with the conclusion of my Brother Bird when he holds that the classifications contained in the measure are not so arbitrary and discriminatory as to render it invalid.

There remains for consideration, however, the questions arising under section 34 of the act. That section is as follows:

“All fees paid to the secretary of State as provided in this act shall be turned over to the State treasurer and applied to the State highway fund, the remainder to be applied to the building and improvement of the highways of the State under such division of said fund and for such purposes as the highway laws of the State shall provide, to b.e paid out by the State highway commissioner in accordance. with the statutory provisions therefor: Provided, that fifty per cent of the amount collected from the registered motor vehicles in each county shall be returned to the treasurer of each county, to be used to maintain the highways by the local authorities: Provided, further, that in counties not operating under the county road system, the board of supervisors shall apportion such tax received to the several townships and cities according to the assessed valuation thereof, to be' used by such townships, and cities for the ^construction and maintenance of the highways. The secretary of State shall certify to the auditor general on January first of each year, or as soon thereafter as possible, the amounts received from, the several counties for motor vehicle taxes under the provisions of this act for the preceding calendar year; the auditor general shall thereupon draw his warrant on the State treasurer for such amounts as are due the several counties under the provisions of this section. Any moneys remaining in either fund at the close of any year shall be carried over by the auditor genéral and added to the funds which become, available for the following year.”

Referring to “the statutory provisions” mentioned in said section, we find that section 18, chapter 4, of the general highway law, Act No. 75, Pub. Acts 1915 (1 Comp. Laws 1915, § 4364), provides as follows:

“All State rewarded roads composing a part of this system shall be taken over as county roads by the board of county road commissioners, and any road heretofore laid out, or any part thereof, shall become a county road if the board of county road commissioners shall at any time so determine, and in passing through or on the line between townships and incorporated villages or cities any streets or parts of streets of such village or city may be adopted as a county road, with the consent of the proper authorities of such city or cities, village or villages: Provided, however, that where any street or part of a street is taken over in passing through or on the line between a township and an incorporated village or city, no county road funds shall be expended for the improvement of any such street or part of a street of such village' or city to a greater width than sixteen feet, nor with material more expensive than concrete or brick.”

The Constitution (section 26 of article 8) provides:

“The legislature may by general law provide for the laying out, construction, improvement and maintenance of highways, bridges and culverts by counties, districts and townships; and may authorize counties or districts to take charge and control of any highways within their limits for such purposes. ■ The legislature may also by general law prescribe the powers and duties of boards of supervisors in relation to highways, bridges and culverts; may provide for county and district road commissioners to be appointed or elected, with such powers and duties as may be prescribed by law; and may change and abolish the powers and duties of township commissioners and overseers of highways. The legislature may provide by law for submitting the question of adopting a county or district road system to the electors of the counties or proposed districts, and such road system shall not go into operation in any county or district until approved by a majority of the electors thereof voting on such question. The tax raised for road purposes shall not exceed in any one year three dollars upon each one thousand dollars of assessed valuation for the preceding year.”

So far as it has any bearing upon the question hereafter discussed this section is the same as section 49— as added in 1893 (see 1 Comp. Laws 1897, p. 88) — of article 4 of the Constitution of 1850.

Passing the contention of the appellants that this section cannot be sustained because in counties operating under the county road system money is raised by taxation in one municipality to be expended in another, I am of opinion that the section cannot be sustained for another and a broader reason.

Through the distribution to the various counties of the State of one-half of the tax raised in each county, the money so turned over to be used in each county for highway purposes, the State has undertaken to, and does, invade the domain of local self-government. This principle is basic in character and has become thoroughly imbedded in the jurisprudence of the State. See People v. Hurlbut, 24 Mich. 44 (9 Am. Rep. 103). In the case of Hubbard v. Township Board, 25 Mich. 153, the court had under consideration the validity of an act providing for the improvement of Fort street from the city of Detroit to the Dearborn road. The work was ordered to be made by law of the State and the moneys raised and expended by State agents, the expense being charged in part upon the township and in part upon a smaller district, but leaving those localities with no option of receiving or rejecting the burden. The court said:

“The result is that a purely local work, public in its character, is taken charge of and conducted at local expense, and paid for by local bonds and taxes, without giving any of the local authorities any function to perform, except that of yielding implicit obedience to the orders and requisitions of a commission, in whose appointment and government the town and its people have had no part whatever. This is a very clear usurpation, and, so far as it goes, an absolute destruction of the local privileges.”

In the case of Board of Park Commissioners v. Common Council, 28 Mich. 228 (15 Am. Rep. 202), Mr. Justice Cooley said:

“The constitutional principle that no person shall be deprived of property without due process of law applies to artificial persons as well as natural, and t» municipal corporations in their private capacity, as. well as to corporations for manufacturing and commercial purposes. And when a local convenience or need is to be supplied in which the people of the State at large, or any portion thereof outside the city limits, are not concerned, the State can no more by a process of taxation take from the individual citizens the money to purchase it, than they could, if it had been procured, appropriate it to State use. To this extent the corporate right appears to us to bé a clear and undoubted exception to the general power of control which is vested in the State.
“Whoever insists upon the right of the State to-interfere and control by compulsory legislation the action of the local constituency in matters exclusively of local concern should be prepared to defend a like interference in the action of private corporations and of natural persons. It is as easy to justify on principle a law which permits the rest of the community to dictate to an individual what he shall eat, and what he shall drink, and what he shall wear, as to show any constitutional basis for one under which the people of others parts of the State, through their representatives, dictate to the city of Detroit what fountains shall be erected at its expense for the use of its citizens, or at what cost it shall purchase, and how it shall improve and embellish a park or boulevard for the recreation and enjoyment of its citizens. The one law would rest upon the same fallacy as the other, and the reasons, for opposing and contesting it would be the same in each case. * * * In making contracts and creating debts for the city, the commissioners are in effect exercising a power of taxation, which is one. of the highest attributes of sovereignty, and the distance between their former power to advise, and the power now claimed to compel, can only be adequately measured when it is perceived that the one belongs to the lowest grade of powers, while the power to tax is the highest that can exist in local municipal government. No precedent entitled to respect can justify such a change of powers; for, from the very dawn of our liberties the principle most unquestionable of all has ■been this: That the people shall vote the taxes they are to pay, or be permitted to choose representatives for the purpose.”

See, also, Attorney General v. Pingree, 120 Mich. 550 (79 N. W. 814, 46 L. R. A. 407), and Davidson v. Hine, 151 Mich. 294 (115 N. W. 246, 15 L. R. A. [N. S.] 575, 123. Am. St. Rep. 267, 14 Am. & Eng. Ann. Cas. 352).

I am of opinion that under the foregoing authorities it is entirely beyond the power of the legislature to provide by law for the raising of money by taxation in a county, and then turn that money, or a part of it, back into the treasury of the county to be expended by the local authorities for a purely local purpose. That the State might impose the tax in question, and when collected cover the same into the State treasury to be used for general purposes or for a specific purpose, such as for the improvement of the general highways of the State, is not questioned.

Should the illegal provisions of section 34, with reference to the application of the fund, be held sufficient to invalidate the entire act? It is, I think, beyond question that, shorn of the provision for the return of 50 per cent, of the taxes raised in the several counties of the State to those counties, the act could not have secured sufficient support to assure its passage.

I am therefore of opinion that the entire act should be held invalid, and the decision of the court below reversed.


author: Per Curiam.

text:
    THOMPSON v. SECRETARY OF STATE.
    Mandamus — Referendum—Issues of Fact — Practice.
    Where a referendum was asked by petition filed with the secretary of State under Art. v, § 1, of the Constitution (as amended) to submit to the electors for approval Act No 304, Pub. Acts 1915, and certain interested voters filed a petition in mandamus to require the secretary of State to submit the issues in accordance with law in the matter of printing the ballot and to compel him to recanvass the petitions filed in certain1 counties, and to count only such signatures as had added the street and number and election precinct, in cities, etc.: to recount only those sections bearing the name of the city or county in which the petition was circulated and to recount only those sections having an affidavit attached of the person circulating the petition, pursuant to the Constitution, matters averred which did not appear on the face of the petitions should be submitted as issues of fact, in the manner set up in the application of relators to have issues framed, held, that such issues might be framed to disclose whether or not the petitions from said counties appear on their face to be regular and in case of irregularities whether or not sufficient signatures remained to comply with the constitutional provisions.

      Mandamus proceedings by Ethan W. Thompson and others against Coleman C. Vaughan, secretary of State, to compel a recanvass of petitions for a referendum filed in the office of the secretary of State, and to secure a lawful submission of the question to the electors. On application to frame issues of fact; ordered that issues be framed as prayed.
    Opinion filed May 31, 1916.

      Carroll, Kirwin & Hollway and Brown, Walbridge, Kelley & Seelye, for relator.

      Grant Fellows, Attorney General, and L. W. Carr, Assistant Attorney General (Arthur P. Hides and Stuart E. Knappen, of counsel), for respondent.
   Per Curiam.

Certain electors, dissatisfied with the action of the legislature, as evidenced by the provisions of Act No. 304, Pub. Acts 1915 (Senate Enrolled Act No. 93) (1 Comp. Laws 1915, § 9388), seek to invoke a referendum pursuant to section 1, art. 5, of the Constitution, as amended in 1913. Petitions for such referendum having been filed with the secretary of State, that officer, on August 24, 1915, made a proclamation, which, after reciting certain facts as being disclosed by said petitions, continues as follows:

“Now, therefore, it is hereby officially determined and declared by me, by virtue of the power in me vested, that the petitions aforesaid have been signed by a sufficient number of qualified electors of this State to authorize and require the submission of said Senate Enrolled Act No. 93 to a vote of the electors of this State at the next succeeding general election for approval or rejection, and that said Senate Enrolled Act No. 93 shall not go into effect unless and until it is approved by a majority of the qualified voters of the State of Michigan voting thereon at said election.”

Thereaftei relators filed in this court their petition, which concludes with this declaration and prayer:

“The purpose of this petition and of the order to show cause and writ of mandamus being to secure the printing on the official ballot for the November, 1916, general election of only a legally and constitutionally submitted referendum upon said Act No. 304 of the Public Acts of 1915, and such referendum as is qualified and entitled to appear on such ballot by reason of having met and fulfilled the requirements of the Constitution of this State, and that upon such showing of cause and hearing thereon an order may be entered requiring the observance of said provisions of the Constitution in the submission of such referendum and the printing of such ballot:
“(50) Your petitioners therefore pray that a writ of mandamus may issue to Coleman C. Vaughan, secretary of State of the State of Michigan, commanding him:
“ (A) To recount and recanvass on said referendum petitions filed from the counties of Kent and Wayne, only those signatures of signers thereof who added to their respective signatures their place of residence, street and number in cities having street numbers, and their election precinct.
“(B) To recount and recanvass on said referendum petition only these sections which bear the name of the city or county in which it was circulated.
“(C) To recount and recanvass on said referendum petition only the signatures of such qualified electors of the city or county where such section was circulated.
“(D) To recount and recanvass only those sections which have attached thereto an affidavit of the circulator or solicitor who circulated the said section, which complies with the requirements and provisions of section 1 of article 5 of the Constitution of this State.
“(E) To recount and recanvass only those sections of said referendum petition which were filed with the clerk of the county in which it was circulated, and to count and canvass only the names on such section circulated in the counties of Kent and Wayne which were filed at the same time as provided in section 1 of article 5 of the Constitution.
“(F) To reject and throw out of the said referendum petition all of the said sections thereof filed from the counties of Kent and Wayne which were returned to said counties for correction as set forth herein.
“(G) To reject and throw out of the said referendum petition all and each and every section thereof filed from the counties of Wayne and Kent and shown to be defective and illegal in this petition.
“(H) That such other and further order may be made in the premises as justice may require.”

Relators’ complaints are addressed to matters appearing upon the face of the petitions, showing, it is alleged, failure to follow the constitutional directions and to matters not appearing upon the face of the petitions, but set up by relators, relating, mostly, to the manner in which the petitions in Kent and Wayne counties were procured, signed, verified, and amended before they were filed with respondent.

An order to show cause having been granted, respondent answered relators’ petition, and relators have now applied for an order framing certain issues of fact, 24 in number, the forms of which are proposed. Respondent, by the attorney general, has filed objections to the framing of issues, saying:

“I. The case presented by relators’ petition and the answer of respondent thereto is not of such character as to warrant the framing of issues of fact as prayed for in relators’ motion.
“II. Conceding, for the purposes of this motion, and for no other purpose, that the issues of fact proposed by relators in their said motion were respectively answered upon submission favorably to relators’ contention, relators would not be entitled to the relief, or any part thereof, prayed for in their said petition.
“HI. It appears from said petition by relators that the acts of said respondent sought to be reviewed, and those which this respondent is sought to be compelled to perform under the prayer in said petition and set forth in the order to show cause heretofore issued herein, are acts which this respondent, who is a constitutional officer, is required to perform under and by virtue of the terms of section 1 of article 5 of the Constitution of the State of Michigan, and that the performance of such acts as have been performed by this respondent under said constitutional provision cannot be reviewed, set aside, revoked, or annulled by any action of this honorable court, or the manner of the performance of said acts be reviewed or interfered with by any action of this honorable court.
“IV. That under section 1, art. 5, of the Constitution of the State of Michigan respondent has no right to hear testimony, consider affidavits, or consider any matter or thing not appearing upon the face of referendum petitions submitted to him or filed with him under and pursuant to the said constitutional provision, nor can any findings of fact upon issues framed as prayed for by relators be considered by or be bind-: ing upon respondent.
“V. That the act of respondent in canvassing the petitions referred to in the petition of relators and his determination thereof is final and conclusive.
“VI. It does not appear upon the face of said petition of relators, or upon the said motion, that the relators, or any of them, have such interest in the subject-matter set forth in said petition, or any part thereof, as to entitle them, or any of them, to the aid of the people’s writ of mandamus against this respondent, to compel the performance of the acts prayed for in the said petition, or any of said acts.”

Saving only the one numbered “IV,” these objections, if they are sound,- show that the order to show cause was improvidently granted. Relators, too, suggest the interesting and important point that the constitutional provision is not self-executing.

Upon the hearing of this motion we decide only that, unless the facts are settled by agreement, issues may be framed, the determination of which will disclose whether the petitions from Kent and Wayne counties, on file with the secretary of State, appear upon their face to be regular and to comply with the constitutional provision, and whether, if the petitions from both or either of these counties are held insufficient and to be rejected, there will remain a sufficient number of signatures to satisfy the constitutional requirement. The effect of this decision is that the action of respondent should be, in any event, based upon what appears upon the face of the petitions presented to him. We reserve all other questions until the record is completed.

An order in conformity with the foregoing, will at once be entered. Ten days after the entry of the order will be given in which to agree upon the necessary facts or propose issues to be framed. Issues, if framed, will be determined by this court, and upon their determination either party may have 20 days in which to file additional briefs. At the end of said 20 days, the cause will be regarded as submitted.


author: Brooke, J.

text:
    CORBY v. CITY OF DETROIT.
    1. Municipal Corporations — Assessments — Recovery op Back Taxes — Interest.
    Where plaintiff brought an action to recover back an assessment for paving in a village which had been the subject of annexation proceedings to the city of Detroit and the court held that he was entitled to receive back a portion of the amount paid, exhibits tending to show the resolution of the village council remitting a part of the statutory interest were admissible on the second trial, since it was within the power of the council to adjust the matter of interest by remitting a part thereof by resolution, in view of the abortive attempt to bring about annexation.
    2. Same — Street Improvement — Recovery op Tax Paid Under Protest.
    Having passed a resolution to remit interest during a three-year period when the village affairs were in chaotic condition because there had been an unsuccessful attempt at annexation to the city, and it was therefore difficult to determine to whom to pajy the assessment, an estoppel against claiming the remitted interest became in force as to the village.

      Error to Wayne; Mandell, J.
    Submitted October 18, 1915.
    (Docket No. 103.)
    Decided June 1, 1916.
    Assumpsit by Thomas W. Corby against the city of Detroit and the village of Grosse Pointe Park for the recovery of taxes paid under protest. Judgment for defendants on a verdict directed by the court. Plaintiff brings error.
    Reversed, with instructions for a verdict to be entered in the lower court in plaintiff’s favor.

      Moore & Moore, for appellant.

      Walter Barloio and Walter M. Trevor (Harry J. Dingeman, of counsel), for appellees.
   Brooke, J.

This is the second time this case has been before the court. The opinion filed upon the first hearing will be found reported in 180 Mich., at page 208 (146 N; W. 670). As a result of the first hearing this court determined that plaintiff had been overcharged in the sum of $808.67. The case was thereupon remanded to the trial court “to compute the tax against plaintiff as above indicated and enter a judgment in his favor for the balance.” When the matter again came up in the circuit court, following the filing of a remittitur, a difference arose between counsel for plaintiff and counsel for defendant as to the correct method of computing the amount which the plaintiff should recover from defendants. Application was thereupon made to this court for a writ of mandamus, to compel the circuit judge to enter judgment according to the contention of plaintiff’s counsel. This application was denied by this court, and the parties proceeded to trial in the court below. The record made upon the earlier trial was introduced in evidence, and the facts as therein contained conceded to be true, and thereupon plaintiff’s counsel offered in evidence two exhibits. The first, Exhibit 2, dated April >30, 1910, is as follows:

“Resolved: That the village treasurer be and he is hereby authorized and directed to proceed with the collection of the special assessments on the property formerly within the village of Fairview and now within the village of Grosse Pointe Park as the same appear on the special assessment rolls of said former village of Fairview, said rolls being: Roll No. 3 for the cost of the construction of the Jefferson avenue sewer; and roll No. 7 for defraying the cost of paving Jefferson avenue. Provided, however, that no interest be charged or collected from May 8, 1907, to May 8, 1910, by said treasurer on the amounts payable on said rolls; and provided further, that where the parties against whose property said assessments were made have paid the parts of the assessments due and payable before May 8, 1907, the time to pay the remaining parts of said assessment be and the same is hereby extended as follows: The time for paying the third part of the assessment for said payment is hereby extended to July 24, 1910. The time for paying, the fourth part of said paving assessment is hereby extended to July 24, 1911. The time for paying the fifth part of said paving assessment is hereby extended to July 24, 1912. The time for paying the fourth part of the' assessment for said sewer is hereby extended to July 24, 1910. The time for paying the fifth part of the assessment for said sewer is hereby extended to July 24, 1911. Interest on all unpaid assessments to run at the rate of six per cent. (6%) per annum to the time of payment, except for three years above stated. Provided further, that all assessments in default on June 1, 1910, be placed upon the general tax roll, as provided by law. And be it further resolved: That the village treasurer send notice by mail of this resolution to the parties whose names appear as owing on said assessment rolls.”

A material part of Exhibit 3 is as follows:

“The general assessment roll of the village of Grosse Pointe Park for 1910 contains the following assessments fob this payment:
Pavement. Interest on Paving.
Thomas W. Corby. All that part of P. C. 502 and 692 lying between Kercheval Ave. & Jefferson Ave.. 1,913 04 358 69.”

These exhibits were excluded by the learned trial judge and a computation of the tax was made upon the theory that plaintiff, Corby, should be charged in the computation with all statutory interest and penalties. By the resolution of April 30, 1910, it will be noted that interest for three years, from May 8, 1907, to May 8, 1910, was remitted by the village council.

A consideration of the whole matter leads us to the conclusion that this resolution resulted from a conviction on the part of the council that the chaotic condition of the affairs of the village, resulting from an abortive attempt to annex a portion of its territory to the city of Detroit, constituted a sufficient reason for plaintiff’s refusal to pay his tax until it was determined to whom he might legally make payment. We are of opinion that the second trial must be considered as a new trial in the light of our refusal to issue the writ of mandamus, and that the circuit judge should have admitted in evidence the two exhibits in question. We are further of the opinion that it was within the legal power of the village council to adjust its claims for interest in the way it did, and that such adjustment was, under the circumstances, no more than equitable, and, further, that it should now be estopped from claiming interest for the three years by that resolution remitted. Upon the question of the power of a municipality to make such adjustments, see Prout v. Fire District, 154 Mass. 450 (28 N. E. 679), and City of Shawneetown v. Baker, 85 Ill. 563. Assuming, therefore, that the exhibits should have been admitted, and, further, that they should have been made effective according to their tenor in computation of the tax, the account should be stated as follows:

The original assessments against Mr. Corby’s lands were confirmed on July 24th, 1905, by the village council of Fairview village.
One description was assessed.................$1,913 04
One description was assessed................. 1,913 04
Total .......................................$3,826 08
This court held in Corby v. Detroit et at., 180 Mich. 208, that there was an overcharge in the assessments of ........................ 808 67
The amount of proper tax on July 24, 1905, therefore, was ............................$3,017 41
This sum should bear interest at 6 per cent, from July 24, 1905, to May 8, 1907, time 1 year, 9 months, and 14 days................ 323 83
No interest under the provisions of Exhibit 2 should be charged from May 8, 1907, to May 8, 1910.
Interest, however, should be charged at 6 per cent, from May 8, 1910, to October 24, 1910, when the tax was returned unpaid to the county treasurer, time 5 months and 16 days (Act 39, Pub. Acts 1899 [1 Comp. Laws 1915, § 2725]) ......................;........... 83 48
The county treasurer’s charges should be added, interest at 1 per cent, a month from October 24, 1910, to June 27, 1911, when Mr. Corby paid the tax, time 8 months and 3 days (Act 262, Pub. Acts 1899).................. 244 38
The county treasurer’s collection fee at 4 per cent..should be added...................... 120 69
This made Mr. Corby’s just tax due on June 27, 1911, when he paid the assessment under protest ....................................$3,789 79
He paid the sum of.......................... 4,906 94
The amount of his just tax was............... 3,789 79
The difference due plaintiff therefore was.... $1,117 15
This difference should bear interest at 5 per cent, from June 27, 1911, to December 31, 1915, time 4 years, 6 months, and 4 days.... $251 96
The total amount of plaintiff’s judgment should therefore be...............................$1,369 11

The case will be remanded to the circuit court, with instructions to enter judgment in plaintiff’s favor for the sum of $1,369.11.

Stone, C. J., and Kuhn, Ostrander, Bird, Moore, Steere, and Person, JJ., concurred.