People ex rel. French v. Common Council

Cooley, J. Tbe validity of the claims held by the relator in this [379] case was affirmed in the case of The People ex rel. Whitely v. The Common Council, 27 Mich., 131, in which demands precisely similar were involved. The failure of the council to provide for meeting these claims is excused by them on the ground of a failure to satisfy themselves that any existing statute gives them power to levy a second assessment in this particular case. In Whitely’s case we held that the power to levy assessments to complete the payment of the expense of the improvement was given by the old charter and retained in the new. — Laws 1869, Vol. 3, ¶. 1359, § 87. It is now urged that the speciaL act of 1869, Vol. 8, p. 680, for the levy of an assessment for this particular improvement, and which has been acted upon and proved insufficient for the purpose, was made by the revised charter their only authority in the premises; the revised charter providing that “nothing in this act shall be construed to repeal or in any manner interfere with the provisions”' of the special act. Whether it was the purpose of this proviso to limit the authority of the common council in respect to further assessments for this particular improvement, may perhaps be gathered from a consideration of the object had in view in the passage of the special act. As we understand it, an assessment for this improvement had previously failed by reason of irregularities and illegalities, and there were charges that excessive estimates of work had been made, and excessive orders issued; and - the special act proyided: first, for a new estimate of work in order to determine the justice of the complaints made; and second, an assessment to make the amount that should be found due on such estimate. The provision for the assessment was substantially the same with that incorporated in the revised charter, so that had the revision repealed the special act, it would have affected nothing but the new estimate,-the purpose of which was to save the tax-payers from extortion. We cannot think, therefore, that the proviso had any purpose except to save interference with the new estimate, and [380] as that was held in Whitely’s case not to bind the holders of orders, the proviso was really unimportant. There can he no serious doubt, in view of the provisions in the old and revised charters, when examined in connection with the special act of 1869, that the purpose of the legislature has always been to give ample power to the council to provide for such cases; and that purpose appearing, it is not to he defeated by technical constructions. An order must be entered that the writ of mandamus issue, commanding the levy of an assessment under the general provision of the revised charter which has been referred to. The other Justices concurred.