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SCOFIELD ET AL. v. THE CITY OF LANSING ET AL.

to it as a matter of right, and not of mere favor; and the rejection was clearly an error.

The judgment must be reversed, and a new trial ordered.

The other Justices concurred.

Sylvester G. Scofield et al. v. The City of Lansing

Chancery Practice:

et al.

Multifariousness. Where a great number of persons, owning distinct parcels of land fronting upon a street, join in a bill to restrain the collection of a tax on their several parcels for grading the street, all alleging the illegality of the tax as the ground for relief; and the questions, as presented by the bill, appear prima facie to depend upon the same proceedings for assessing the tax, the court can not, on demurrer to the bill, say in advance that the bill is bad for multifariousness or misjoinder. If, in the progress of the cause, the controversy be found to turn upon the legality of such proceedings, or other grounds common to all the complainants, there is no objection to the joinder, and it avoids multiplicity of suits.

If, on the other hand, it should appear, in the progress of the cause that the multiplicity of issues, or other complications growing out of the joinder, would produce such embarrassment as to overbalance the advantages to be derived from settling the rights of the whole in one suit, it is always competent for the court, of its own motion, to dismiss the bill on this ground.

Common Council: Delegation of power: Void tax. Where the charter required the Common Council of Lansing (as a condition precedent to the raising of a tax) to declare, by an entry on their minutes, what portion of the expense of a certain improvement should be assessed to the owners of premises to be benefitted thereby, and specifying the amount to be assessed, etc. Held, that this duty could not be delegated to commissioners to perform, as the determination of those facts were vital to the levy; and that the tax so levied was void.

Bill in chancery to remove a cloud: Tax lien. Where, by the provision of the charter, a tax is declared to be a lien upon the premises assessed, it constitutes a cloud upon the title, and may (if illegal) be removed by a bill in chancery; and this without any reference to the question whether there was personal property from which to collect it.

Heard October 17th. Decided October 20th.

Appeal in Chancery from Ingham Circuit.

The bill in this cause was filed to restrain the City of Lansing from collecting a tax for grading a street fronting complainants' premises.

SCOFIELD ET AL. v. THE CITY OF LANSING ET AL.

The bill set forth that the complainants, fifty-nine in number, were owners of certain real estate in the City of Lansing, lying adjacent to and fronting on Cedar street, and a road in continuation thereof; and that they petitioned to the Common Council of said city to grade a certain portion only of said street. The following proceedings of the Common Council sufficiently present the facts upon which the case was decided as to the legality of the assessment:

On the 20th day of February, 1865, as appears from the minutes of the Common Council of said city of Lansing, the following preamble and resolutions were adopted:

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Whereas, A majority of the resident property holders living on Cedar street, have petitioned the common council for the grading and side- walking of said street; and,

Whereas, The same is deemed by the common council to be a necessary public improvement to grade said street from the north line of lot five, block two hundred and forty-four, to the point on said street eight rods south of the south line of Kalamazoo street, and that the estimated expense of said improvement is about $2,500, and that the property to be benefitted by such public improvement is all the property lying on or touching said street, being blocks and parts of blocks two hundred and thirty-seven, two hundred and thirty-eight, two hundred and forty, two hundred and forty-one, two hundred and forty-four, two hundred and forty-five; therefore, be it

Resolved, That the council will cause said grading to be done, and that the necessary expense of grading said street shall be assessed as estimated, by the commissioners appointed, upon all lots or parts of lots lying on said street, or benefitted thereby, being blocks or parts of blocks two hundred and thirty-seven, two hundred and thirty-eight, two hundred and forty, two hundred and forty-one, two hundred and forty-four, and two hundred and forty-five, in the city of Lansing, according to the recorded plat thereof; and be it further

Resolved, That the estimates and assessments for grading Michigan avenue and Cedar street shall be increased or diminished as in the opinion of the common council necessity demands or equity may require."

SCOFIELD ET AL. V. THE CITY OF LANSING ET AL.

The committee of said Council also reported an order appointing commissioners to make an assessment to defray the expenses of the aforesaid public improvement, with the names of the commissioners left blank. On motion, the blanks were filled with the names of A. F. Weller, M. Hudson, and George Grove. Order passed as filed.

May 22, 1865, A. W. Williams, chairman of the committee on streets, proposed a resolution changing the profile of the grade of said Cedar street. In this resolution the grade is referred to as "from Franklin street to a point four hundred feet south of Kalamazoo street."

Referring to said map, it appears that the grade, as there referred to, is some three-quarters of a mile more than that adopted by the resolution of February 20, 1865. June 5, 1865, the committee on streets reported upon bids. for grading Michigan avenue and Cedar street. The bill charged that as to Cedar street the bids only covered the grade from the south line of lot five, block two hundred and forty-four, to a point eight rods south of Kalamazoo street. June 12, 1865, the Common Council of said City of Lansing passed the following resolution:

Resolved, That the commissioners to assess the amount of the cost of grading Cedar street from the south line of lot five, block two hundred and forty-four, to a point four hundred feet south of Kalamazoo street, be and hereby are authorized and instructed to assess the amount of the estimated expense upon the whole of the property lying on said street, the aggregate not to exceed $5,540, and said commissioners be hereby required to report said assessment by the 9th day of January."

On the 18th day of September, 1865, the following resolution was passed:

"Resolved, That in conformity to the conditions of his contract, the contractor for grading Michigan avenue and Cedar street be and is hereby authorized and instructed to proceed with the least possible delay to grade Cedar street from Mrs. Elder's north line to a point

SCOFIELD ET AL. v. THE CITY OF LANSING ET AL.

two hundred feet south of Kalamazoo street, in accordance with the adopted profile of said street."

Referring to the description given of the property assessed to Calista Elder in Exhibit "A," hereto annexed, the bill showed that Mrs. Elder's north line is the north line of lot six, block two hundred and forty - four.

October 23, 1865, the said Common Council passed the following resolutions:

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Resolved, That the order passed February 20, 1865, appointing four commissioners to assess a certain portion of Cedar street, be rescinded.

Resolved, That the contractor, Mr. Shine, be instructed to complete the grade of Cedar street, not already ordered, from Franklin street to Cedar River.

Resolved, That the committee on streets are hereby authorized and instructed to procure a survey of Cedar street, from a point two hundred feet south of Kalamazoo street, to the south city limits."

Oct. 31, 1865, as appears from the minutes of said common council, Alderman A. W. Williams presented an order for the grading of Cedar street from Cedar bridge to Franklin street, and appointing D. M. Bagley, L. D. Preston, and C. Tracy as commissioners to assess the expense of the same. Adopted by yeas and nays.

November 6, 1865, these last mentioned commissioners made their report. November 22, 1865, the assessment roll presented by said commissioners, was unanimously adopted.

The bill further charged that this assesment roll was for the sum of $2,500, and that said amount was duly collected from complainants and the other owners of lands specified in the order of October 31, herein before set forth, and paid into the city treasury.

September 6, 1866, as appears from the minutes of said. Common Council, "Alderman Jones presented an order appointing D. M. Bagley, E. Longyear and S. W. Wright,

SCOFIELD ET AL. v. THE CITY OF LANSING ET AL.

commissioners to make an assessment to defray the expense of grading Cedar street, which was adopted."

September 17, 1866, as also appears from the said minutes, Alderman Whitney moved to amend the order appointing commissioners to defray the expense of said Cedar street, by inserting the following after the word street: "From Franklin street south to the southern terminus of said Cedar street," and the lots and parts of lots and lands lying and fronting on the street running south from Cedar street to the south line of the city.

Copies of the assessment rolls and maps, representing Cedar street and the adjacent property, were annexed as exhibits. The bill charged that the action of the council was illegal; that it created a cloud upon the title to their said lots, and prayed for an injunction.

The case was heard on demurrer. The injunction previously allowed was dissolved, and the bill was dismissed.

S. F. Seager, and J. W. Longyear, for appellants.

1. The action of the Common Council was clearly irregular and unauthorized in making the assessment.

a. No estimate of the expense of the proposed improvement was ever made.

b. There was no determination as to whether the whole or any portion of the expense should be assessed on the owners or occupants of lands benefitted by the improve

ments.

c. There was no designation of the portion of the city that would be benefitted.

The assessment made under the resolution of February 20, 1865, was collected in full. The present assessment rests on the resolutions of September 10, 1866, and September 17, 1866, which are not in compliance with §§ 9, 10, Sess. L. 1865, p. 448, in a single particular.

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17 MICH. D2.

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