City of Detroit v. Weil

Kuhn, J. (after stating the facts). It is clear from the reading of the local act of 1903 that it was the intention of the legislature that all proceedings to take private property for the use and benefit of the public in the city of Detroit should “be held and prosecuted under the provisions of this act and no [598] other.” Act No. 149, Pub. Acts 1911, containing no repealing clause, it must also be clear that it. did not repeal the local act in question. The general legal principles applicable were recently stated by this court in Hopkins v. Sanders, 172 Mich. 227, 235, 236 (137 N. W. 709), when it was said, in referring to other decisions upon this question: “From them can be deduced the general principles that repeals by implication are not favored; that there is no presumption of an intention on the part of the legislature to repeal a law where no reference is made to it in a later act, unless the intent is clear, and, where an act is passed for a particular purpose it is not to be held as abrogated by subsequent general legislation, which may be sufficiently broad to include it, unless the intent to abrogate is so clear and distinct as to be unavoidable. * * * “An examination of the authorities on repeals by implication shows clearly a tendency to sustain local acts as silently excluded from the operation of subsequent general acts, where the legislative intent is not so clear and positive as to render it impossible to do so; and only where the implication of intention to repeal necessarily flows from the language used, and discloses a repugnancy between its provisions and those of the former law so positive that it is impossible to reconcile the two by any fair construction, will repeal by implication be declared.” See, also, Lake v. Village of Cedar Springs, 162 Mich. 569 (127 N. W. 690). In considering the question of the unconstitutionality of the local act for the reasons urged by counsel for the city, the distinction between assessments for local benefits and a general tax must be borne in mind. It is well settled in this State that the rule of uniformity of taxation provided for in the Constitution of the State has no application to assessments for local improvements. Woodbridge v. City of Detroit, 8 Mich. 274; Motz v. City of Detroit, 18 Mich. 495; [599] Hoyt v. City of East Saginaw, 19 Mich. 39 (2 Am. Rep. 76) ; Sheley v. City of Detroit, 45 Mich. 431 (8 N. W. 52). The distinction between these assessments and a general tax is clearly set forth in 2 Cooley on Taxation (3d Ed.), pp. 1153-1155: “Special assessments are a peculiar species of taxation, standing apart from the general burdens imposed for State and municipal purposes, and governed by principles that do not apply universally. The general levy of taxes is understood to exact contributions in return for the general benefits of government, and it promises nothing to the persons taxed, beyond what may be anticipated from an administration of the laws for individual protection and the general public good. Special assessments, on the other hand, are made upon the assumption that a portion of the community is to be specially and peculiarly benefited, in the enhancement of the value of property peculiarly situated as regards a contemplated expenditure of public funds; and, in addition to the general levy, they demand that special contributions, in consideration of the special benefit, shall be made by the persons receiving it. The' justice of demanding the special contribution is supposed to be evident in the fact that the persons who are to make it, while they are made to bear the cost of a public work, are at the same time to suffer no pecuniary loss thereby; their property being increased in value by the expenditure to an amount at least equal to the sum they are required to pay. This is the idea that underlies all these levies. The distinction between them and ordinary taxation has thus been pointed out in a recent case: " £A local assessment can only be levied on land; it cannot, as a tax can, be made a personal liability of tbe taxpayer; it is an assessment on tbe thing supposed to be benefited. A tax is levied on tbe whole State or a known political subdivision, as a county or a town. A local assessment is levied on property situated in a district created for tbe express purpose of tbe levy, and possessing no other function, or even existence, tban to be tbe thing on which tbe levy is made. A tax is a continuing burden and must be collected at stated short intervals for all time, and without it government cannot exist; a local [600] assessment is exceptional both as to time and locality — it is brought into being for a particular occasion, and to accomplish a particular purpose, and dies with the passing of the occasion and the accomplishment of the purpose. A tax is levied, collected, and administered by a public agency, elected by and responsible to the community upon which it is ■ imposed; a local assessment is made by an authority ab extra. Yet it is like a tax in that it is imposed under an authority derived from the legislature, and is an enforced contribution to the public welfare, and its payment may be enforced by the summary method allowed for the collection of taxes. It is like a tax in that it must be levied for a public purpose, and must be apportioned by some reasonable rule among those on whose property it is levied. It is unlike a tax in that the proceeds of the assessment must be expended in an improvement from which a benefit clearly exceptive and plainly perceived must inure to the property upon which it is imposed.’ “Not all these differences are necessarily existent in every case, but in the main the characterization is accurate as it is forcible.” For a review of other text-books and decisions of other courts on this subject, see Arnold v. Mayor of Knoxville, 115 Tenn. 195 (90 S. W. 469, 3 L. R. A. [N. S.] 837, and note, 5 Am. & Eng. Ann. Cas. 881) ; also County of Adams v. City of Quincy, 130 Ill. 566 (22 N. E. 624, 6 L. R. A. 155, and note). By the terms of the local act it was designed to assess the cost of such a public improvement upon the real estate of a district which might or might not, in the legislative discretion, be coextensive with the geographical limits of the municipality or political subdivision where the improvement was made. The common council having failed to provide a smaller assessment district, and having determined that the cost should be borne by the city, it becomes a burden on all the taxable real estate of the city. Special assessments, as a rule, are not levied on personal property, but generally on real estate alone. The rule deducible from reading the authorities is that it is within the province of the legislature to say that the [601] real estate alone shall be subject to such a special assessment, for the reason that special benefits accrue almost exclusively to lands, so that generally, in works commonly classed as “internal improvements,” the real estate alone has been taxed; and that the legislative authority, either of the State, or when properly authorized, of the municipality, may determine over what territory the benefits are so diffused as to render it proper to make all lands contribute to the cost. The legislature having conferred the power on the city by the local act in question to determine how much of the real estate in the city is benefited by the proposed improvement, their determination of the area benefited is final and conclusive, in the absence of fraud, or unless the absence of benefit makes it manifest that the burden amounts to spoliation, and not taxation. Shimmons v. City of Saginaw, 104 Mich. 511 (62 N. W. 725) ; 1 Page & Jones’ Taxation by Assessment, § 555. We are satisfied that the said Local Act No. 541 of 1903, because it provides a method of paying for public improvements by a special assessment which may or may not be upon all of the real estate of the city, as the council by proper resolution may determine, is not subject to the constitutional objection urged. The said act providing that all proceedings to take private property for the use and benefit of the public shall be brought under its provisions, and the pending proceedings being clearly of that character, it was improper not to bring them as the act clearly directs. Appellant’s plea to the jurisdiction of the circuit court should have been sustained. The case is remanded to the circuit court, with directions to make such an order. McAlvay, C. J., and Brooke, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.