f

knowledge on the part of the city at the time the budget of 1908 was passed upon by the common council and the board of estimates as to make it improper or unlawful for this appropriation to be made from the contingent fund. It is, as stated by the complainant, true that the city of Detroit knew in 1908 that certain of the franchises of the Detroit United Railway would expire in November, 1909; but the exact manner in which it might thereafter be determined wise to enter upon an investigation of the rights and duties of the city and the railway company as to each other could not have been known. The contingent fund, as its name implies, is one designed for the purpose of giving elasticity to the finances of a municipality and to provide for emergencies such as may arise, a fair example of which is afforded by the case at bar.

The most important question, however, and the one which has given us most trouble, is that which arises from the placing of the money in the hands of the mayor for the designated purpose, but concededly and notoriously to be used by him in the defraying of the expenses incurred by a body of men sustaining no official relation to the city of Detroit, and being responsible to no one for the proper and honest discharge of the obligation it has assumed. A consideration of these facts at first seems to present insuperable obstacles to the carrying out of the project as designated by the common council; but upon further reflection it would seem that the action may be sustained upon broad grounds of public policy. The history of the case discloses the fact that the common council originally passed a resolution placing the fund in question at the disposal of the committee itself, but, upon advice of the corporation counsel, rescinded that resolution and passed the one here in question. There is no doubt that the common council by a committee of its own body could employ and properly compensate experts for the gathering and placing before the council all information absolutely necessary to enable it to intelligently execute the trust reposed in it by the municipality, with reference to this most important question. By its action in the present case we are disposed to the conclusion that it has said in effect that it desires for its guidance information to be gathered by experts selected by and under the direction of the committee. In other words, it has merely entered into a contract with those experts upon the advice and recommendation of a committee of gentlemen in whose judgment it has confidence.

The subject of the right of a municipality to deal with matters of purely local moment in the manner dictated by the judgment of its properly constituted authorities has been before this court on more than one occasion. In the case of Attorney General v. City of Detroit, 26 Mich. 264, it is said:

"It is the unwarranted use of the money that justifies the interference, and the pretense upon which it was raised is not important to the question of jurisdiction. . . . It should appear that the public has

a substantial interest in the question; the right involved should be a public right, or at least not a private right merely; the wrong done or attempted, if it consist solely in a misuse or misappropriation of funds, should be either one involving questions of public policy, or, where that is not the case, the amount involved should be something more than merely nominal."

In Torrent v. Common Council of Muskegon, 47 Mich. 115 (10 N. W. 132, 41 Am. Rep. 715), it is said:

"But in saying this we do not assume that it belongs to this court, or any other, to dictate to the city how it shall spend its money. The council must use its own discretion where it will save and where it will spend; and the case must be a very clear one, and the subterfuge very plain, before that discretion can be regarded as having been exceeded so as to show an excess of power under a pretense of keeping within it. It is not the business of courts to act as city regulators, and, unless the authority of the representatives of the citizens has been exceeded, their action cannot be interfered with merely because it may not seem to other persons to be as wise as it might be."

In City of Port Huron v. McCall, 46 Mich. 565 (10 N. W. 23), the court, through Mr. Justice COOLEY, spoke as follows:

"There is a principle of law that municipal powers are to be strictly interpreted, and it is a just and wise rule. Municipalities are to take nothing from the general sovereignty except what is expressly granted; stud but when a power is conferred which in its exercise concerns only the municipality, and can wrong or injure no one, there is not the slightest reason for any strict or literal interpretation with a view to narrowing its construction. If the parties concerned have adopted a particular construction not manifestly erroneous, and which wrongs no one, and the State is in no manner concerned, the construction ought to stand. That is good sense, and it is the application of correct principles in municipal affairs."

Upon a review of the whole case, considering the magnitude and importance of the issues involved as affecting the rights of the city of Detroit and the future of its citizens, we are of opinion that the case presented is not such an one as would compel this court to say that in the denial of the injunction sought by the complainant the learned circuit judge abused a discretion with which he is clothed.

The writ should be denied.

HOOKER and MOORE, JJ., concurred with BROOKE, J.

BLAIR, C. J. I am unable to concur in the result reached by Mr. Justice BROOKE in this matter. The solution of the street railway question for the city of Detroit is unquestionably a legislative problem for the determination of the common council. It only concerns the mayor in his official capacity, as all questions of municipal government concern the chief executive, charged with the duty of informing himself as to them and recommending action thereon from time to time. The

investigations which the mayor makes are for the purpose of enabling him to properly discharge the duties of his office and are compensated by the salary provided for the office. It is not contemplated by the charter of Detroit, in my opinion, that the mayor shall make extensive investigations requiring the examination of witnesses and the expenditure of large sums of money for the purpose of equipping himself to recommend action to the common council, and the powers essential to make the investigation effective are not given him therein. Such investigations fall within the domain of legislative action, and the local legislature is given the necessary powers to make them effective. The charter not conferring this power upon the mayor, but, by implication, negativing it. Cooley on Constitutional Limitations (4th ed.), pp. 248-250; 28 Cyc. pp. 463, 464; Union Depot & Railroad Co. v. Smith, 16 Colo. 361 (27 Pac. 329); 1 Dillon on Muncipal Corporations (4th ed.), § 96.

I have no doubt that the common council may choose its own method of collecting information to guide its legislative discretion. Flint, etc., Plank-Road Co. v. Woodhull, 25 Mich. 99 (12 Am. Rep. 233). It may, if it chooses, conduct its investigation through a committee of outsiders or through the mayor, providing the investigation is made in its behalf, in accordance with its directions, and subject to its control, and the results reported to it for its action. State TaxLaw Cases, 54 Mich. 350 (20 N. W. 493).

The resolution under discussion was not for the purpose of aiding the local legislature to perform its duty, but to assist the chief executive to perform his duty. The resolution directs the city controller "to pay any bills presented and approved by his honor, the mayor, out of said appropriation." This provision is in contravention of mandatory provisions of the city charter and is therefore illegal and void. McCormick v. Bay City, 23 Mich. 457. The fact, as alleged, that the mayor intends to pursue the charter course for the allowance of his bills, cannot validate this invalid resolution. The resolution must speak for itself unaffected by undisclosed intentions.

The writ will be granted.

GRANT, MONTGOMERY, OSTRANDER, and MCALVAY, JJ., concurred with BLAIR, C. J.

HOOKER, J. I concur with the Chief Justice in the opinion that the council has power to investigate existing conditions and necessities, as regards the street railway of Detroit, and to obtain and pay for professional and expert assistance therein; and I am not prepared to say that it may not call to its aid the business judgment of its citizens, for whose use it may procure, or cause to be procured, such assistance, and may pay the necessary expenses of such persons. I also think it may provide for the payment of the expenses of such persons, whose selection may be made by the council itself, a committee thereof, or confided to the mayor, through whom it may make its investigation. I find nothing in the resolution indicating that the information sought

1

to be acquired was not for the benefit of the council, as well as the mayor, and I am not satisfied that the council has not power to provide for the legitimate expense of the office of mayor, especially in the performance of duties imposed on him by the council. It appears to be conceded by counsel that it could not confer upon the controller the authority to pay money upon the certificate of the mayor alone, and the learned circuit judge has found that there is no cause for apprehension that he will. I therefore concur in the denial of the writ.

City

Can

give

SUIT by tax-payers of the city of Buffalo, against the city and one Austin. The city purchased land of Austin for market grounds at the price of $35,000, and gave Austin its bond for that amount, pay

payment of able in twenty-five years with semi-annual interest. The comptroller

nds.

of the city presented to the common council his estimate of expenses to be levied by tax in which was an item of $3,675, interest on said bond to Austin. Plaintiffs seek to have the transaction between Austin and the city declared void, and ask that the city be perpetually enjoined from levying any tax for payment of said bond or the interest thereon.

In the Supreme Court judgment was rendered dismissing the complaint. Plaintiffs appealed.

H. W. Rogers, for appellants.

John L. Talcott, for respondents.

SELDEN, J. [After deciding that the city had power, under its charter, to purchase land for the purpose of a market.]

But admitting that the city had a right to make the purchase, it is denied that it could purchase upon credit, and execute the bond given for the purchase money. The power of corporations in general to make contracts and incur debts in the prosecution of their legitimate business, and to give their promissory notes for such indebtedness, would seem to be firmly established, not only by universal practice, but by repeated judicial decision. (Mott v. Hicks, 1 Cow., 513; Moss v. Oakley, 2 Hill, 265; Kelly v. The Mayor of Brooklyn, 4 Hill, 263; Moss v. McCullough, 5 Hill, 131; Attorney-General v. Life and Fire Insurance Company, 9 Paige, 470; McCullough v. Moss, 5 Denio, 567.)

In the last of these cases the judgment was reversed, not on the ground that the corporation had not the power to contract the debt,

1 Statement abridged. Only so much of the case is given as relates to a single point.-ED.

or to give the promissory note, but for the reason that the property purchased was not required for the legitimate purposes of the company. Senator Lott, by whom the leading opinion was given, says: "I am satisfied that the note in question was given for purposes and objects unauthorized by its charter, and, therefore, not obligatory." It is true, the learned senator, in the course of his opinion, seems to intimate a doubt whether a corporation like that of the Rossie Lead Mining Company, instituted for specific business purposes, with a limited capital, can virtually add to that capital by the purchase of a large amount of property upon credit, especially where, as in that case, each stockholder is made individually liable for all the debts of the company.

However this may be, sound reason, no less than the authorities to which I have referred, forbid that it should be held that a corpora tion may not incur a debt in the exercise of its appropriate powers, or may not purchase, upon a credit, property which is required for purposes authorized by its charter. Municipal corporations, especially, obtain their funds, for the most part, periodically, by means of annual taxation, and it is impossible by any degree of care to adjust their means to their wants so accurately but that exigencies will arise, rendering necessary a resort to the credit of the corporation. To deny to such corporations the power to use their credit in any case, would scarcely comport with the objects for which they are created. Under such a rule they could not procure materials for the repair of a bridge, unless the money had been raised in advance. The affairs of no municipal corporation were ever conducted, I presume, without incurring obligations, for various purposes, in antici pation of its revenues. It may be said that there is a distinction between incurring debts for the ordinary and current expenses of the corporation, to be defrayed by the expected annual income, and debts upon an extended credit, for objects of a permanent character, as, for instance, that a debt may be created for the repair of a bridge or market, but not for the erection of or procuring a suitable site for such market. I am unable to discover any solid basis for such a distinction, or any definite line by which it could be marked.

It is otherwise in delivery, because, Still, if it consist

It is easy to see that it would be extremely difficult, if not impossible, to manage the affairs of a municipal corporation, without the power to contract upon its credit. Every contract for labor, not paid for in advance, is necessarily a contract upon credit, because the labor, when once performed, cannot be recalled. case of the purchase of property to be paid for on unless payment is made, it need not be delivered. of several parcels, as of several loads of lumber or of stone, to be delivered at different times, and paid for when all are delivered; this is a contract upon credit for all except the last load. Were a corporation authorized in general terms to build a bridge, without specification of manner or means, it would scarcely be doubted that it might