Long v. City of Monroe , 265 Mich. 425 ( 1933 )

This appeal involves the validity of special assessments levied against appellees' properties incident to widening Monroe street in the city of Monroe. The city charter provides that an improvement of this type shall not be ordered "unless the owners of a majority of the frontage to be assessed shall petition therefor (section 161)." In the circuit court decree was entered restraining the assessments on the ground, among others, that the petitions for the improvement did not contain valid signatures of the owners of sufficient frontage to comply with the requirements of the city charter. Defendants have appealed.

The total frontage assessed for this improvement is 9,199.50 feet. Under the charter the improvement could not be ordered except the petition or petitions filed therefor represented more than 4,599.75 feet. Decision turns upon whether such petitions were presented.

The total frontage for which petitioners signed was 4,768.15 feet. This included 240 feet owned jointly by Mr. and Mrs. Newcomer and 81 feet owned jointly by Mr. and Mrs. Southworth. The petitions were signed only by Mr. Newcomer and Mr. Southworth respectively. These signatures were not sufficient, being in each instance the signature of only one of the two joint owners. Auditor General v. Fisher, 84 Mich. 128; Hinkley v. Bishopp, 152 Mich. 256; Bakker v. Fellows, 153 Mich. 428.

Another parcel having a frontage of 23 feet was owned jointly by Mr. and Mrs. John Re. As to this parcel the petition was signed "John Re by Carl Kiburtz, arty in fact." Mr. Kiburtz was also the attorney-in-fact for Mrs. Re but he did not sign for her. On this account the signature was insufficient. Further, we think the power of attorney held by Mr. Kiburtz did not vest him with authority to sign the petition. So far as material, it empowered him "to sell and convey any lands * * * owned by us or either of us in the county of Monroe and State of Michigan and to make, execute and deliver in our names all necessary and incident deeds of conveyance and assignments, bills of sale, or other instruments that may be in the premises required." It also empowered the attorney to lease any and all lands owned by Mr. and Mrs. Re or either of them. It would seem too clear for argument that the power of attorney never contemplated vesting Mr. Kiburtz with authority to sign petitions for local improvements and thereby subjecting the property to the incumbrance incident to an assessment. The rule is that a power of attorney should be strictly construed. It cannot be extended by construction. And a power of attorney to sell or to lease land does not authorize placing an incumbrance thereon. Jeffrey v. Hursh, 49 Mich. 31;Penfold v. Warner, 96 Mich. 179 (35) Am. St. Rep. 591). Nor can we hold that the subsequent approval by Mr. Re by letter to the attorney validated the signature.

As to another parcel having a frontage of 22.2 feet the petition bears the signature of Clyde K. Hasley. At the time the petition was signed this parcel was owned by the Hoffman heirs. Mr. Hasley was in possession. He had made an agreement for the purchase of the property and had made a down payment. A deed had been made out to him and left with a third party. It had not been delivered. Before delivery the deed was altered by inserting his father's name as a joint grantee with a right of survivorship. It therefore appears that at the time of signing the petition Clyde Hasley was not the owner of the property and that when title subsequently passed it vested in himself and his father as joint tenants with the right of survivorship. As to this parcel the petition did not bear a valid signature.

The four parcels referred to in the next preceding paragraph have a total frontage of 366.2 feet. Deducting this frontage from the total represented by the petition and assuming, but not deciding, that other signatures to the petition were valid, the net frontage as to which the respective signatures are sufficient is 4,401.95 feet. This is short of the requisite 4,599.75 feet to the extent of 197.80 feet.

Appellants challenge the correctness of the above computation. They assert that the city engineer in testifying to the total amount of assessable frontage as being 9,199.50 feet erroneously included 417.9 feet frontage of the following publicly-owned property: Post office, owned by the United States, 283.5 feet; Dorsch Memorial Library, owned by the board of education, 37 feet; city hall and fire department, owned by the city, 41.5 and 45.9 feet respectively. Appellants contend that since these parcels are publicly owned and are not subject to general taxation, they should not be included in determining the amount of "frontage to be assessed." This is a somewhat inconsistent position for the appellants because not only did they include these properties in arriving at the total assessable frontage but they actually made assessments against these parcels. But aside from this, the untenability of appellants' position is conclusively established by the following charter provision:

"If there shall be included in any special assessment district lots belonging to the city, schools, other public buildings or public grounds not taxable, such part of the expense of such improvement as in the opinion of the commission or city assessors making the special assessment would be justly apportionable to such public grounds, buildings and city property * * * shall be paid from the general fund, or from the proper street district fund, or partly from each, as the commission shall determine to be just." City Charter, § 165.

Clearly under this charter provision publicly-owned property is subject to assessment the same as privately-owned property, notwithstanding such assessment is payable from general city funds or street funds instead of being payable by an individual or corporate owner. Omission of frontage of publicly-owned property in computing the total assessable frontage incident to determining the sufficiency of the petitions for this improvement would clearly be in violation of the city charter. Because of the express charter provision above quoted, City ofBig Rapids v. Mecosta County Supervisors, 99 Mich. 351, and People, ex rel. Auditor General, v. Ingalls,238 Mich. 423, cited and relied upon by appellants, are not in point.

Appellants further claim that signers of earlier petitions than the one above considered owning frontage totaling 123.7 feet should also be included, if necessary, in determining whether these assessments should be held valid. We do not pass upon this question because should decision sustain appellants' contention the amount of the frontage involved is not sufficient to overcome the deficiency above noted. Decision of other questions presented by the record is not necessary to determination of this case.

The decree entered in the circuit court is affirmed, with costs to appellees.

McDONALD, C.J., and POTTER, SHARPE, FEAD, WIEST, and BUTZEL, JJ., concurred with NORTH, J.