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this reason is maintained we shall not be long in lapsing into legal chaos.

The fact in the first ground of challenge was admitted by the demurrer for the purpose of the question. When the occasion came for the clerk to convert the grand list into slips, and to clear the box of old ones, and place the new ones therein, the judge was not in attendance. That responsible duty was left to the clerk alone, and without a witness. The law is very exact in requiring at least two to be present at every stage in the process down to the issue of the venire. It has not been content to leave any part to the sole fidelity of one however eminent or apparently trustworthy, and it has provided positively that on the occasion of replenishing the box the judge shall be present. No one else is required to attend with the clerk. On examining the statute no one can fail being struck with the exceeding care manifested to guard the jury process against all chance of mistake and fraud, and even against all suspicion of error. The present

officers may be safely trusted. But the same rule must apply to their proceedings which would be applicable to the doings of suspected agents.

In this case the jury objected to was not a jury provided in accordance with law. The defects were cause of principal challenge and were substantial. The regulations referred to and which were in some respects evaded and in others only partially followed, belong to the safeguards devised by the wisdom of the Legislature to ensure good juries and to keep the administration of justice pure and preserve confidence in the judicial tribunals. The defendant waived nothing. He made his challenge promptly and in due form. Was it due to law and justice to disregard his objection? If so, to what extent must deviations from the statutes regulating jury process be carried to justify exception?

It seems to me the irregularities pointed out are insurmountable and that the case ought to go down to another jury.

But the members of the court, whilst agreeing in opinion that the record contains no other grounds for a reversal, are

equally divided upon the questions raised by the challenge, and therefore the judgment must stand affirmed.

The other Justices concurred.

ALANSON SHELEY V. CITY OF DETROIT.

Legislative policy-Apportionment of paving tax.

The Legislature, when acting within the sphere of its powers in making
laws, passes finally upon all questions of policy and of equity.
Local assessments may be apportioned according to frontage under legis-
lation which permits that method to be followed.

The Legislature has power to impose the burden of repaving, as well as
of paving streets, upon the abutting owners.

Appeal from Wayne. Submitted Jan. 13. Decided Jan. 28.

INJUNCTION to restrain sale for taxes. Dismissal affirmed.

Theodore Romeyn for complainant. Assessments by frontage, when arbitrarily made, are invalid: Clapp v. Hartford 35 Conn. 166; repairing streets is a municipal duty: Hammett v. Philadelphia 65 Penn St. 146; Sutton's Heirs v. Louisville 5 Dana 28.

City Counselor F. A. Baker for defendant. The power to compel the owners of abutting property to pave a street ordinarily extends to repaving: 2 Dill. Mun. Corp. § 619; Gurnee v. Chicago 40 Ill. 165; McCormack v. Patchin 53 Mo. 33; Municipality v. Dubois 10 La. Ann. 57; Lafayette v. Fowler 34 Ind. 140; Cooley on Taxation 422; Willard v. Presbury 14 Wall. 676; Bradley v. McAtee 7 Bush 667; Broadway Church v. McAtee 8 Bush 508.

COOLEY, J. This is a bill to restrain the collection of a pavement tax. Complainant is owner of a lot on Woodward avenue, in the city of Detroit, which has been paved and

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repaved several times, sometimes at the expense of abutting owners and sometimes not, according as the law in force at the time provided. Complainant avers that he has paid two assessments for repaving which were levied on the owners of abutting property. In 1879 the common council passed resolutions for repairing and repaving a section of this avenue, including that portion upon which complainant's lot abutted, at the expense of the lots fronting thereon, and took steps for the purpose which resulted in an assessment upon complainant of $171.02. The whole expense of the repaving was assessed upon the abutting lots in proportion to the street front. The new pavement was to be of cedar blocks, and an old pavement of cobble stone, which complainant avers was not worn out, had to be removed for the purpose. It is insisted by complainant that an assessment according to frontage is not an assessment in proportion to benefits received, and is unjust and unwarranted by legal principles. No question is made of the sufficiency of the legislation under which the common council assumed to act to authorize the action taken, if the legislation is itself constitutional, but it is denied that it is so. The learned counsel for the complainant states the question at issue to be: The right of the Legislature to authorize municipal authorities to require the owners of property on streets in the city to continue, at their own expense, to repave them, whenever ordered by the common council, and to do so in reference to the extent of frontage, or, in other words, of territory upon the street, with no reference at all as to values.

The questions, then, are questions of legislative power. Whether this method of apportioning the cost of pavement or of repavement is equitable or just or politic, is in no way involved in this suit, and we should depart from our legitimate province if we were to volunteer an opinion upon it. The Legislature, acting within the sphere of its powers in the making of laws, judges, and judges finally, upon all questions of policy and of equity. If the Legislature declares the cost shall be collected by general levy, or on the other hand shall be levied upon abutting lots or their owners according to

values, or to assessed benefits or to frontage, the determination binds us absolutely and conclusively, provided we discover no want of legislative authority. We must then address our attention to that point, and to that exclusively.

Now it has been several times decided in this State that it was competent under legislation permitting it, to apportion local assessments according to frontage. The leading case of Williams v. Mayor 2 Mich. 560 was not disturbed by Woodbridge v. Detroit 3 Mich. 274, and was expressly approved in Motz v. Detroit 18 Mich. 495, after most thorough argument and careful and deliberate examination. The case of Jones v. Board of Water Commissioners 34 Mich. 273, to which complainant calls attention, is foreign to this controversy. It was expressly held in that case that water rates were in no sense taxes, and they were held not apportionable by frontage on that very ground. Thomas v. Gain 35 Mich. 155 has quite as little relevancy. There was an attempt in that case to apportion a sewer tax in manifest disregard of any principle of justice or equity, and the Court. rejected it for that reason, and as having no lawful principle to sustain it. In that very case Williams v. Mayor was recognized, and it was said (p. 161) that "the idea that underlies statutes for this purpose is, that the benefit to the abutting lots is generally in proportion to the length of their respective fronts, and that as a rule this principle of apportionment is more just than any other." It would be strange indeed if we could hold an apportionment to be void for its injustice when it had been prescribed by law for the very reason that justice and equity require it.

We might fill pages with the names of cases decided in other states which have sustained assessments for improving streets, though the apportionment of the cost was made on the same basis as the one before us. If anything can be regarded as settled in municipal law in this country, the power of the legislature to permit such assessments and to direct an apportionment of the cost by frontage, should by this time be considered as no longer open to controversy. Writers on constitutional law, on municipal law, and on the

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law of taxation have collected the cases, and have recognized the principle as settled, and if the question were new in this State, we might think it important to refer to what they say. But the question is not new; it was settled for us thirty years ago.

It is urged, however, that even conceding it to be admissible to charge the owners of abutting lots with the cost of the first pavement of the street, the special exaction should stop there, and all repaving should be by general levy. But the learned counsel for complainant does not undertake to explain to us how it can be that the legislature can have power to order the first improvement at the expense of adjoining owners, and still not have power to order any subsequent pavement on the like basis. The argument to that effect appears to assume that a pavement once laid is an improvement which is to last for ages, like some substantial structure of granite or marble; and that the adjacent proprietors having incurred the expense of making it, the comparatively insignificant cost of keeping it in condition for use from year to year ought properly and justly to be taken upon the shoulders of the community. But no assumption can be more unfounded. A pavement is but a temporary improvement of the street. It may last for five years, or ten, or twenty, but at the end of some short period the street will need a new one, and the question who shall be at the cost of it is the same as before and rests upon the same equities. It can never be said of any street that it is permanently paved. It is paved for the time being only; and the pavement will wear out or become unsuitable, just as a sewer will decay or become inadequate to the needs it was intended to meet.

If there is any soundness in the theory on which the bill is filed, it must be found in this: that when the adjacent owners have once made the street a substantial thoroughfare at their own expense, a principle of constitutional justice requires that the city should afterwards maintain it as a substantial thoroughfare. But any such principle rests upon such a basis of uncertainty that it would not only be difficult of application, but lead to the most absurd results. When

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