JAMES H. BROWN V. THE CITY OF GRAND RAPIDS.

Municipal corporations-Taxation-Review of assessment-Estoppel.

Where provision is made by law for a review of assessment proceedings, and a body is appointed with power to set the assessment aside or correct the error complained of, and an interested land-owner fails to appear before said body after due notice, or to take any steps to have such correction made, he is not in a condition to appeal to the courts for redress in the absence of fraud or bad faith; citing Williams v. Saginaw, 51 Mich. 120; Comstock v. Grand Rapids, 54 Id. 641; Lumber Co. v. Crystal Falls, 60 Id. 510.

Appeal from superior court of Grand Rapids. (Burlingame, J.) Argued July 1, 1890. Decided November 14, 1890.

Bill to remove a cloud caused by the sale of complainant's land in satisfaction of a special assessment, etc. Defendant appeals. Reversed, and bill dismissed. The facts are stated in the opinion.

M. L. Dunham (A. D. Cruickshank, of counsel), for complainant, contended:

1. There was frand in making the district and in assessing the benefits, and for those reasons the assessment is void. The law has a standard for measuring the intent of parties, and declares an illegal act, prejudicial to the rights of others, a fraud upon such rights, although the parties deny all intention of committing a fraud; citing Kirby v. Ingersoll, Har. Ch. 172. 2. Fraud is as properly made out by marshaling the circumstances surrounding the transaction, and deducing therefrom the fraudulent purpose, when it manifestly appears, as by presenting the most positive and direct testimony of actual purpose to deceive. Circumstantial proof in most cases can alone bring the fraud to light, for it is a wrong of secrecy and circumvention, and is to be found not in the open proclamation of the wrongdoer's purpose, but by the indication of covered tracks and

studious concealment; citing Hopkins v. Sievert, 58 Mo. 201; Cooley, Torts, 475.

3. Whatever advantage a corporate officer takes of others because of his official position, which is unfair to others in the corporation, is a fraud; citing Cooley, Torts, 520; and fraud vitiates all acts, however solemn; citing Best, Ev. §§ 227, 595.

4. There was no legally ordained basis of apportionment of the award, and this burden was not spread over the taxing district according to any uniformly applied rule, and for these reasons the assessment is void; citing Motz v. Detroit, 18 Mich. 495; Thomas v. Gain, 35 Id. 154; Clay v. Grand Rapids, 60 Id. 452; Detroit v. Daly, 68 Id. 503; White v. Saginaw, 67 Id. 33; Woodman v. Auditor General, 52 Id. 30.

J. W Ransom (Wm. Wisner Taylor, of counsel), for defendant, contended:

1. That the Legislature may empower the common council to determine what property is benefited by the improvement, and determine the taxing district accordingly, cannot be doubted; citing Hoyt v. East Saginaw, 19 Mich. 39; Warren v. Grand Haven, 30 Id. 24; and the Legislature may authorize the apportionment of the assessment by commissioners after the district benefited has been defined by the common council; citing Hoyt v. East Saginaw, 19 Mich. 39.

2. Where the assessment is to be made upon a district benefited, and is left to the discretion of the municipal authorities, the exercise of the discretion to tax such district raises the presumption of benefits, and cannot be impeached in the absence of fraud; citing Welty, Assess. § 308, 309; Cook v. Slocum, 27 Minn. 513; State v. Dist. Court, 29 Id. 65; Fagan v. Chicago, 84 Ill. 231; Brewster v. Davenport, 51 Iowa, 427.

3. It is a matter of discretion with the governing power of the municipality to determine whether the property benefited shall bear the expense, or whether the cost of the improvement shall be made a public charge; and this discretion, when exercised, is not the subject of review by the courts. This proposition is supported by the authorities last cited.

4. Where the charter (or law) confers upon the city council power to determine upon the expediency or necessity of measures relating to local government, their judgment upon matters thus committed to them, while acting within the scope of their authority, cannot be controlled by the courts. In such cases, the common council or governing body necessarily has, to a greater or less extent, a discretion as to the manner in which the power shall be used. In such case the decision of the

proper corporate officer is, in the absence of fraud, final and conclusive, unless they transcend their powers; citing 1 Dill. Mun. Corp. (3d ed.) § 94; Page v. St. Louis, 20 Mo. 136. 5. No fraud whatever is shown in this case in the exercise of the power; nor can there be any pretense but that the common council acted within the scope of its powers in forming the district. But the complainant, by his bill, apparently asks the court to presume otherwise; to presume that the council acted fraudulently; to presume that it went beyond the scope of its powers in forming the district. There is no proof whatever to sustain the allegation of fraud in the bill, nothing to show that the council did not act with the utmost fairness. The presumption is the other way. Courts are bound to presume that a legislative body will exercise any discretion with which it is clothed properly, and that it had sufficient reason for doing an act the result of such discretion; citing 1 Dill. Mun. Corp. (3d ed.) § 94 (note 1); Railroad Co. v. Mayor, 1 Hilton, 562; Gas Co. v. Des Moines, 44 Iowa, 508.

6. Where by its charter a municipal corporation is empowered, if it deems the public welfare or convenience requires it, to open streets or make public improvements thereon, its determination, whether wise or unwise, cannot be judicially revised or corrected; citing 1 Dill. Mun. Corp. (3d ed.) § 95.

7. The fair and honest exercise of their judgment by the commissioners can result in no legal wrong to complainant. Even where an actual wrong is done, there is no remedy unless it be a legal wrong; and a legal wrong cannot arise from the exercise of a lawfully vested discretion, the exercise of which cannot be reviewed; citing Sage v. Laurain, 19 Mich. 137.

8. The duties of the commissioners in spreading an assessment according to benefits we submit are quasi judicial, and no action can be predicated upon an erroneous performance of these duties; citing Bay County v. Brock, 44 Mich. 45; and the presumption is that a public officer has faithfully and correctly performed his duty; citing Clark v. Mowyer, 5 Mich. 462, 484; Peck v. Cavell, 16 Id. 9; Auditors v. Benoit, 20 Id. 176; Blair v. Compton, 33 Id. 414; Smith v. Rich, 37 Id. 549; Westbrook v. Miller, 56 Id. 148.

9. Even where an assessor has omitted lands from his assessment roll, the presumption is that he has done his duty, and that they were properly omitted; citing Perkins v. Nugent, 45 Mich. 156; which presumption also applies where a demand is an essential prerequisite to a levy for a tax, it not appearing that demand was made before levy; citing Wood v. Thomas, 38 Mich. 686; and the presumption of performance of official duty

supports the action of boards as well as of officers acting singly; citing Upjohn v. Richland, 46 Mich. 542.

10. The certificate of the commissioners annexed to the assessment roll in this case is full, and shows in detail the action of the commissioners in making the assessment, and that they proceeded in accordance with the provisions of law in spreading the assessment. This certificate is official, and therefore has all the weight, as evidence of the facts therein contained required to be certified, as the certificate of a supervisor to his roll of valuation. A supervisor's official certificate of valuation is legal evidence in collateral proceedings involving the validity of the tax, and cannot be contradicted by parol evidence; citing Blanchard v. Powers, 42 Mich. 619; and the supervisor's certificate of valuation attached to an assessment roll cannot be contradicted in any proceeding to enforce the tax; citing Gamble v. East Saginaw, 43 Mich. 367.

LONG, J. The complainant is the owner of lots 1, 3, 6, 8, 9, 10, and the west 54 feet of lot 11, of J. H. Brown's addition to the city of Grand Rapids. These lots were platted by complainant 66 feet wide by 165 feet deep, and are on on the south side of Wealthy avenue, between Grandville avenue on the east and Oakland avenue on the west.

Wealthy avenue, between Grandville and Oakland avenues, up to June 7, 1886, was only 33 feet in width. At that date, the common council of the city of Grand Rapids adopted a resolution requesting the city surveyor to furnish it with a description of the property necessary to be taken to open and widen Wealthy avenue between Grandville and Cakland avenues to the width of 66 feet.. Some time afterwards, and prior to August 2 following, the city surveyor filed his report with the city clerk, showing that it was necessary to take 33 feet off the north end of all of the property then lying on the south side of Wealthy avenue between Grandville and Oakland avenues. Proceedings were then taken by the city council up to and including the condemnation of this strip of land for said street, and an award was made by

a jury of $8,805 to the property-owners therefor, of which amount the complainant was awarded $4,205.

By

On February 14, 1887, the common council appointed. a committee consisting of three of the aldermen to locate a district upon which to assess the said $8,805, and a few days thereafter the committee made a report fixing the boundaries of such district, which report was adopted by the council. On November 28 following, the council adopted a resolution declaring that district to be the property benefited by the widening of such street, and to the extent of the award made by the jury to the property-owners, and that the entire of said sum be assessed upon the property within such assessment district. said last resolution, the board of review and equalization. of said city were directed to make an assessment of said sum in proportion to the benefits of each parcel of land therein by reason of such public improvement. The board completed such assessment, and on January 9, 1888, reported it to the council. The complainant was assessed for such benefits the sum of $2,447.25. January 16, 1888, was fixed as the day of hearing appeals from said assessment, and notice thereof was duly published as required by law. Several appeals were taken, and overruled by the council, and on January 23 said roll as made by the board of review was confirmed by the council.

The complainant did not appeal, but received and took the award made by the jury as his damages. Upon this strip of land taken from the complainant's premises were several buildings, which the complainant purchased from the city and moved back upon his lots off the line of the street. No complaint is made of the proceedings taken to condemn the property, or of the amount of the award for damages. The only questions raised relate to the making of the assessment district, and the amount assessed