Moreland v. Common Council

Grant, J. (after stating the facts). The commissioner of public works, by the act of the legislature of 3901 (Act No. 415, Local Acts), is clothed with the power, among other things, to “supervise the construction, repairing, and alterations of all public buildings.” The act further provides that all moneys for such repairs, etc., shall be expended under his supervision, and under contract and specifications prepared by him and approved by the common council. He is also vested with all duties and functions theretofore vested in and exercised by the former board of public works. He is also to certify all bills, accounts, and claims, and transmit them to the city controller, who in turn submits them to the common council for allowance. Whenever peculiar skill is required in any such work, the common council is empowered to authorize the commissioner to employ a competent person to superintend the same, at a compensation not exceeding a sum to be stated in said resolution. Charter of 1893, p. 163, § 10. The charter also provides that, before proceeding with any public improvement, the common council shall refer the matter to the commissioner, who shall [345] forthwith, proceed to examine and report on the same, giving detailed estimates of cost. A similar question was presented in Butler v. City of Detroit, 43 Mich. 552 (5 N. W. 1078). The validity of the ■act establishing the board of public works was sustained, and the purpose of the act is there well stated at page 555. We also held in Mills v. City of Detroit, 95 Mich. 422 (54 N. W. 897), that the provision of the act requiring the ■common council to procure from the board of public works an estimate of the cost of any proposed improvement was mandatory, and that proceedings without such estimate were void. Making plans, drawings, specifications, and supervision of construction are necessary parts of such work. The act clearly imposes the duty of such work upon the commissioner. The resolution and contract are not only clear encroachments upon the authority of the commissioner, but virtually ignore his authority. The obvious purpose of the law is to compel the common council, at the beginning, to obtain from a responsible executive officer — the commissioner — plans, specifications, and estimates. For this purpose the council may authorize him to obtain the services of competent architects and builders. This is no encroachment upon the legislative power of the common council. It was not the design of the. law to permit the common council, under a plea of preliminary work, to incur the expense of plans, specifications, and supervision of construction. The complainant was the proper párty to launch the suit. He is intrusted with the performance of the duties of his ■department, and ma,y maintain a suit in equity to restrain threatened encroachments. There is, in fact, no other remedy, and it is doujbtful if any other person could maintain such a suit. The decree is affirmed, with costs. Hooker, C. J., Moore and Montgomery, JJ., concurred. Long, J., did not sit.