Farr v. City of Detroit

Montgomery, J. In this case, in my view, the question presented is whether this complainant is entitled to the remedy which he seeks in a court of equity. The facts are sufficiently stated in the opinion of Mr. Justice Grant. The stipulation is that complainant had such knowledge of the work as a person living on said avenue would naturally have. There was testimony tending to show that this property was benefited by the improvement [201] to the extent of the assessment. In addition to this, complainant was bound to take notice of the public statutes of the State, and that, under the charter of the city of Detroit, the only method of compensating for such improvements was by an assessment upon the property. He stood hy, and permitted this work to be done, and now seeks relief in a court of equity. The question is not whether there was a technical estoppel, — a question which my Brother Grant discusses, as it seems to me, unnecessarily. It may be true that the complainant is not estopped from asserting the invalidity of this tax. But it is quite another thing to say that he is entitled to come into a court of equity to demand of right the interposition of that court to arrest the proceedings of the public authorities. It is a question of remedy. We think there can be no doubt that, under proper-legislative authority, the assessment of complainant’s land for the benefit derived from the improvement in question might be made. Lack of authority to make the assessment may be supplied by retrospective legislation when such authority might have been given in the first instance. 1 Cooley, Tax’n (3d Ed.), p. 510. Such a reassessment may be made when the first assessment was irregular, unauthorized, or even made under a defective law. Id. 514. This question is not a new one in this State. In Byram v. City of Detroit, 50 Mich. 56 (12 N. W. 912, 14 N. W. 698), the rule was laid down that where a party, under such circumstances, stands by until his property is benefited by the improvement, he will not be permitted to go into a court of equity to be relieved of the tax. The same rule was laid down in Lundbom v. City of Manistee, 93 Mich. 170 (53 N. W. 161), and followed in Atwell v. Barnes, 109 Mich. 10 (66 N. W. 583), and Fitzhugh v. City of Bay City, 109 Mich. 581 (67 N. W. 904). It is impossible to distinguish these cases from the present, unless it be assumed that this complainant, living upon the lot benefited, having such knowledge as a resident on the street would be likely to have, was not bound to know [202] that an attempt was being made to charge this property with the value of this improvement. This he cannot assert without asserting ignorance of the law, the provisions of which render the property subject to assessment for the improvement. The decree should be reversed, and the bill dismissed. Moore, C. J., and Hooker, J., concurred with Montgomery, J.