Blades v. Board of Water Commissioners , 1899 Mich. LEXIS 708 ( 1899 )

Grant, C. J.

(after stating the facts). The validity of the act of 1899 presents the sole question involved in this proceeding. Its validity is attacked upon numerous grounds. The only ones necessary to discuss and determine are involved in the following questions: (1) Is the object of the act expressed in its title, within section 20, art. 4, of the Constitution, that “no law shall embrace more than one object, which shall be expressed in its title?” (2) Is the scheme of taxation provided by the act valid ? (3) If not valid, can the act stand with this provision stricken out ?

1. The present board of water commissioners holds, and has possession of, this property as a trustee for the city. The city is the owner, just as effectually as though the ■deeds were made direct to it. Under the new act, the property is np more and no less the property of the city than it was under the old act. The legislature so understood; for section 1 declares the title to be conveyed to, and vested in, the city by virtue of the act. No deeds of conveyance or evidences of transfer from the board of water commissioners are required. The operation, extension, and improvement of the system, as provided in the act, are intrusted to the direction and supervison of the board of public works of said city, which is directed to have a separate department, to be known as the “Water Department of the Board of Public Works,” with power to employ superintendent, clerks, etc., and to specify their duties, their compensation to be fixed by the common council. The administrative control and management is transferred from the water board to the board of public works, the principal difference between the authority of the former board and the latter being that the latter is more under the control of the common council than the former; in other words, the board of water commissioners can do certain acts without the consent of the common council, whereas the board of public works cannot do them without such consent. We are not prepared to hold that, looking into the body of the act, its sole object is to transfer the control and management of the waterworks to the board of public works. It is unnecessary to decide this question.

It is pertinent here to determine what the object of the act is, as expressed in the title. It was not to transfer the title to the property to the city, for that the city already had. It was evidently to transfer and give to the city the “possession, control, and operation and management,” which had theretofore been exercised by the board of water commissioners. Does the title purport to contemplate a complete revision of the system by which the waterworks had been supported for nearly half a century, and the transfer of its management under rules and regulations radically different from those which had theretofore existed ? If this were an original act to authorize the city to establish a water department, and to provide for the control, operation, and management thereof, such title would undoubtedly be sufficient, as is clearly shown in People v. Mahaney, 13 Mich. 495, and People v. Hurlbut, 24 Mich. 44 (9 Am. Rep. 103). We have given the two acts almost in full, so that the difference may be readily seen. The purpose of this constitutional provision is that legislators, and as well parties interested, may understand from the title that only provisions germane to the object therein expressed will be enacted. Would the title to this bill, as introduced in the legislature, when read by a taxpayer of Detroit, be notice to him that the system of supporting the waterworks was to be changed from that of water-rates to that of taxation? Would it be notice to the manufacturers and the business men of Detroit that they were to pay water-rates, while all the rest — a great majority — of the city were exempt, and were to have free water, and that they were to be taxed to furnish free water to their neighbors ? Clearly, no such object can be found in the title, which simply authorizes the transfer from one department of the city government to another, and gives to the transferee the possession, control, operation, and management thereof. Obviously, it would not naturally be inferred that the legislature, under such a title, intended to make the radical changes provided for in the body of this act. What is there to-indicate an intention to virtually abolish the water-rate system, and substitute taxation in its stead? or to provide free water to the inhabitants of the-city? or to give water to private individuals, and charge its cost to the taxpayers? As is well stated by Judge Hosmer in his, opinion, there is “no natural connection between the title of the act and the extraordinary provisions for raising the means necessary to defray the incidental expenses.” What we said in Grosvenor v. Duffy, 121 Mich. 220, is equally applicable here. See, also, Ryerson v. Utley, 16 Mich. 269. The fair inference to be drawn from this title is that the object is to take away the possession of the waterworks, and its control and management, from the board of water commissioners, and transfer them to the city, and that the body of the act would contain only such provisions as were essential to accomplish that object.

2. The method provided by this act for the support and maintenance of the waterworks is unconstitutional and Void. While the provisions of the act are somewhat incongruous, it is apparent that it imposes compulsory taxation for purely local purposes. The board established by section 10, to fix water-rates, is also, by section 9, directed to prepare and transmit to the common council an estimate of the amount they deem a just proportion of the total estimate for maintenance as a reasonable charge for furnishing water for domestic and other purposes therein specified. It is then made the duty of the common council to levy and assess upon the taxable property of the city the sum so fixed, and that it shall not be submitted to the board of estimates or to a vote of - the freemen of the city. The furnishing of water to the city and its inhabitants is a purely local matter, and it is not within the power of the legislature to compel taxation for that purpose, without the action of the freemen of the city or their chosen representatives. This question was fully and ably discussed in People v. Common Council of Detroit, 28 Mich. 228 (15 Am. Rep. 202), which is the leading case in this State upon the subject. In an exhaustive opinion by Justice Cooley, where the attempt was made by the legislature to impose compulsory taxation for the maintenance of a park, he closes his discussion with the following pertinent language:

“No precedent entitled to respect can justify such a change of powers; for, from the very dawn of our liberties, the principle most unquestionable of all has been this: That the people shall vote the taxes they are to pay, or be permitted to choose representatives for the purpose.”

In a concurring opinion, Justice Campbell said:

“From time immemorial, every municipal government, properly so-called, and acting within its peculiar sphere, has acted through its common council, composed either of the burgesses or their representatives, subject in some cases to checks and vetoes, but not subject to legislation or final action in defiance of their own decisions. Their supremacy cannot be given up by themselves any more than it can be taken from them. No doubt the State can limit their powers, but it cannot transfer them. ”

The question' is there so thoroughly discussed that we deem it unnecessary to further consider the question. See, also, Commissioners of Parks & Boulevards of Detroit v. Common Council of Detroit, 80 Mich. 663.

The judges below all agree that the provision contained in section 6 for assessing the cost of laying a six-inch pipe in front of each lot is void, and in this opinion we concur.

3. The body of this act provides a complete revision and change in the system of maintaining and conducting the waterworks. The leading feature in it is the change from maintaining it by water-rates to that of taxation and free water. Nearly all its provisions are in conflict with the act of 1853. The leading feature in the body of the act is not the transfer from one department to another, but the complete change in the system. It cannot be said that the legislature intended simply to transfer the property, control, and management, and not to impose upon the new body the provisions incorporated for such management and the method for raising the necessary funds to sustain and carry it on. This would require the courts to say that the legislature intended to retain the old system if the new one could not prevail. This would amount to judicial legislation, and compel us to legislate into the act that which it does not contain. With these provisions eliminated, resort must be had to the old system of water-rates, which it was the clear intention of this act to substantially eliminate. The unconstitutionality of these provisions renders the whole act void. See Quinlon v. Rogers, 12 Mich. 168; Campau v. City of Detroit, 14 Mich. 276; Warren v. Mayor, etc., of Charlestown, 2 Gray, 99; Jones v. Robbins, 8 Gray, 339; Slanson v. City of Racine, 13 Wis. 398.

The judgment is affirmed.

. The other Justices concurred.