CITY OF GRAND RAPIDS v. HUGHES. The plea was the general issue. dered in favor of the defendant. Judgment was ren The case involves the power of the Common Council to impose a penalty in such a case. W. A. Robinson and C. I. Walker, for plaintiff in error. Gray & Thompson, for defendant in error. 1. The Common Council had no right to pass the ordinance under which this action is brought. a. The declaration implies, that the ordinance in question was adopted under and by virtue of the power conferred upon the Common Council, by clause 8, sec. 10, of the charter (S. L. 1857, p. 285). This clause relates to the "cumbering" of streets, etc. We claim that cumbering" and encroachment are two entirely different matters, and that the defendant was not guilty of " cumbering." 95. 66 Section 21, clause 7, of the charter of the city of Detroit, provides for an ordinance to prevent and prohibit the encumbering of public docks, etc.-Laws of 1857, p. Clause 8, p. 96, prohibits the erection of buildings on them. Clause 13, p. 97; authorizes the Common Council to prohibit and prevent the encumbering of streets, etc. Clause 24, p. 99, provides for an ordinance to prohibit and remove from streets and highways, encroachments by buildings, fences, etc.-1 Comp. L. p..366, §§ 1086, 1087, made an evident discrimination between "obstructions" and encroachments. The same distinction is found in plaintiff's charter. Laws of 1857, p. 285, 287. b. No power is given to pass any ordinance to prevent and remove encroachments. It does not come under sec. 10, p. 284, which defines the general subjects, relative to which the Council may adopt "ordinances, by-laws, and restrictions." Many other sections are found, in which 15 54 147 171 CITY OF GRAND RAPIDS v. HUGHES. City of Grand Rapids v. Henry Hugh Municipal corporations - Encroachments on streets. Under the law. Heard October 18th. Decided Noven Error to the Recorder's Court of the City of This was an action to recover a penalty for er ing upon the public highway in the City of Grand T It was brought under the following ordinance a by the Common Council of said city, to wit: "In case any building, fences or other improv which now is or may hereafter be erected withi City of Grand Rapids, shall extend into or in any ner encroach upon or obstruct any highway, street, or public square, the City Superintendent may serv cause to be served a written notice on the owner 01 cupant thereof, if residents, and if not residents by pos the same in a conspicuous place, therein specifying location and extent of such encroachments, and requir such owner within thirty days, to remove the same fi off such highway, street, alley or public square, and such owner shall not, within the time specified in su notice, remove such obstruction or encroachment, su owner shall be liable to a penalty of ten dollars t every day thereafter, until such encroachment or obstru tion shall be removed." CITY OF GRAND RAPIDS v. HUGHES. this power is granted:-p. 287, sec. 12; p. 313, sec. 34; p. 322, sec. 63; p. 323, sec. 1, 2, 3; p. 325, sec. 11; p. 326, sec. 13. But sec. 11, p. 287, does not grant it. The right of the Council to enact this ordinance must come under this section, if any. Such power cannot be taken by implication, since this is not necessary to enable the Council to carry out the powers which are expressly given it. Sec. 34, p. 313, makes this body, Commissioners of Highways for the city. Their duties and powers are defined by the laws of the state, except so far as increased or restricted by the charter. For these powers and duties, see 1 Comp. L. p. 340. Their mode of action, in cases of obstructions or encroachments, is laid down on p. 366. The Legislature have deemed these provisions ample and sufficient. c. By § 14, p. 288 Laws of 1857, the Council have no power to direct a penalty, except where it has authority by the charter to pass an ordinance. The authority must therefore be express, and cannot be taken by implication. The language is too distinct to admit of any other construction. COOLEY J. The exceptions which were argued in this case relate to the exclusion of evidence; but the declaration is before us, and if it appears from that, that the action could not be sustained upon any evidence which could be given under it, it would be idle to pass upon the exceptions. ordinance of the that in case any The action is brought under an city of Grand Rapids, which provides building, fence or other improvement, which now is or may hereafter be erected within said city, shall extend into or in any manner encroach upon or obstruct any CITY OF GRAND RAPIDS v. HUGHES. highway, street, alley or public square, the City Superintendent may serve or cause to be served a written notice on the owner or occupant thereof, if a resident, and if not a resident, by posting the same in a conspicuous place, therein specifying the location and extent of such encroachment, and requiring such Owner within thirty days to remove the same, from such street, &c., and if such owner shall not, within the time specified, remove such obstruction or encroachment, he shall be liable to a penalty of ten dollars for every day thereafter, until such obstruction or encroachment shall be removed. The particular encroachment complained of in this case, is, the enclosing a portion of the Grandville road, so called, with a board and post fence, and the erection of a dwelling house within the enclosure. This appears to have been done in 1851, six years before the ordinance was passed, and before the amended city charter under which the power to pass the ordinance is claimed. The charter empowers the Common Council of the city to pass ordinances for a great variety of purposes, and to prescribe a penalty not exceeding one hundred dollars for their violation. Among the purposes specified is, "To prevent the cumbering of streets, side- walks, crosswalks, lanes, alleys, bridges, aqueducts, wharves or slips, in any manner whatever.". -Laws 1857, p. 285. From the record it is to be inferred that the Common Council deduce their authority to pass the ordinance in question from this provision. If so, we do not think it can be sustained as applicable to cases like the present. Our laws have always made a distinction between cumbering or obstructing a public way, and encroaching. upon it. The former term has been applied to impediments to travel and passage placed in the open street, and tending to make its use difficult or dangerous; while the latter has embraced the actual enclosure of a portion of the street by fences or walks, or occupation by 15 Mich.-E. |