SCOFIELD ET AL. v. THE CITY OF LANSING ET AL.

necessary, at least (saying nothing of the prior declaration required by section 9, to be entered on their minutes) that after ascertaining the estimated expense of such improvement, they should "declare, by an entry in their minutes, whether the whole, or what portion thereof, should be assessed to such owners and occupants of houses and lands to be benefitted thereby, specifying the sum to be assessed, and the portion of the city which they deemed to be benefitted by the improvement." The whole sum to be raised and the portion to be assessed upon the property benefitted, could only be determined by the Council. The power to determine these matters could not be delegated to the commissioners. Their determination of these points was vital to the validity of the tax, without which no authority existed to assess it. This action was entirely omitted.

There was also an entire failure to comply with the provisions of the tenth section. The order to the commissioners (to say nothing of the other matters required to be inserted in it) should have directed the commissioners to make the assessment "upon all the owners and occupants of lands and houses within the portion or part so designated, of the amount of expense in proportion, as nearly as may be, to the advantage which each shall be deemed to acquire by making such improvement."

No such order was made or certified by the clerk as required. And no presumption, therefore, can be made that the assessments were made with any reference to the benefits or advantages to arise from the improvement.

These defects are not mere irregularities; but show a total failure to acquire the power or jurisdiction to assess

this tax.

The tax was therefore clearly void and illegal; and the only remaining question is whether it constituted a cloud upon the title.

The tax roll having been delivered to the treasurer for collection, it will be seen that the tax is declared by the

SCOFIELD ET A L. v. THE CITY OF LANSING ET AL.

17th section of the charter to be a lien upon the premises upon which the same was assessed. This lien, we think, constitutes a cloud upon the title, which complainants are entitled to have removed in this proceeding; and this, without any reference to the question whether they had personal property from which the tax might have been made by levy and sale. We do not think it a sufficient answer to the relief asked, to say to the complainants that they might get rid of this cloud upon their title by paying the unauthorized and illegal exaction which creates the cloud. And though the lands can not be sold for the tax until returned unpaid, and the amount re-assessed by the alderman of the proper ward - Section 17-yet the lien remains; and the taxes are to be returned and the premises sold or forfeited for non-payment thereof, as provided by law, for the nonpayment of ordinary city taxes-that is to say, they are to be sold by the Auditor General, and deeds given which are to be prima facie evidence of the regularity of all the proceedings, and of title in the purchaser. See Palmer v. Rich, 12 Mich. 414.

The decree of the court below, dismissing the bill, must, therefore, be reversed, with costs, and the demurrer must be overruled, and the record remitted to the court below for further proceedings.

COOLEY CH. J. and GRAVES J. concurred.

CAMPBELL J.

While I do not feel sure that the principle on which bills of peace to settle numerous identical rights, aggrieved by the same act, would have originally reached a case like the present, the practice is convenient, and I concur with my brethren in sustaining this bill and in giving relief. The rule can not apply where distinct issues of fact are presented, and whenever such a case arises it would render the suit multifarious, and bring it within the principle of Kerr

ROMEYN . CAPLIS.

But where no

v. Lansing, decided at the last April term. issue is made, except upon the legality of the acts complained of, and the case is so presented as to enable the court to do complete justice, one suit is probably as available as a greater number.

James W. Romeyn v. James Caplis.

Final order: Appeal: Injunction. An order of court, adjudging a party guilty of a contempt, and imposing a fine and costs for violating an injunction, commanding him not to make any conveyance of, or creating any lien upon certain premises, is a final order, and appealable.

Specific performance: Injunction: Contempt. A bill was filed by complainant for a specific performance of a contract for certain lands, the legal title to which, subject to said contract, was in one Lyell, and who had executed a deed for said premises, leaving the name of the grantee in blank, and sent the same to his agent, who filled in the name of a purchaser.

Defendants were enjoined from making any conveyance of, or creating any lien upon, the said premises, or in any way changing the apparent title.

One of the defendants, subsequent to the service of the injunction, obtained from said Lyell a deed confirming the previous one.

Whether this was a violation of the injunction: quære; the court being equally divided; CAMPBELL and GRAVES J. J. holding the affirmative, and COOLEY CH. J. and CHRISTIANCY J. the negative.

Heard October 15th. Decided October 24th.

Appeal in Chancery from Wayne Circuit.

The bill in this cause was filed to enforce the specific performance of a contract for the purchase of certain real estate in the City of Detroit.

An injunction was issued, forbidding defendants from "making any conveyance of, or creating any lien upon said. premises. or in any way making any change in the apparent title of the same."

One of the defendants was adjudged guilty of violating the injunction, and an appeal was taken from this order. The facts are stated in the opinion.

ROMEYN V. CAPLIS.

D. C. Holbrook, for defendant and appellant.

It is claimed that the appellant is guilty of altering the apparent title to the property in question, by obtaining a second deed to cure errors in a prior one.

If the first deed was valid, the apparent title was the real title, and the procuring a like second deed was not altering or changing any title.

And the appellant contends that the insertion of the name of a grantee before delivery under the (to say the least) implied authority, bound Hugh Lyell when he took the money by consent.

The title was either real or apparently so, just according to the intent of Hugh Lyell, and by his second deed he expressly confirmed and affirmed the first deed with the name inserted, as his act.

The fact that the first deed was witnessed and acknowledged matters not; the insertion of the name was no alteration, if done with the consent of the grantor, and, as such, was good on delivery.

There was, therefore, no violation of the injunction, and the defendunt, Caplis, should not have been adjudged guilty of contempt.

James W. Romeyn, for complainant and appellee.

This is an appeal from Wayne Circuit by James Caplis, from an order adjudging him guilty of a contempt in violating a preliminary injunction.

An order, to show cause why an attachment should not issue, having been made, the court below, on hearing, imposed a fine of $100. From this the defendant appeals.

1. The appellant was held liable for a criminal contempt, and was fined accordingly; the court having discretion within certain limits, under the statute. In this case,

the decision of the People v. Simonson, 9 Mich. 492, does not apply. The fine is to go to the county, not to the

ROMEYN v. CAPLIS.

party for whose protection the injunction was granted. The appellee does not claim that "an actual loss or injury has been produced to the party by the misconduct alleged,' nor does he ask any sum "to indemnify him." The misconduct is brought to the notice of the court below by the complainant acting as amicus curiæ, and the fine is imposed by the court in vindication of its authority, and of the obligation of the writ issued under its direction.

2. This is not such a final order as gives a right to appeal. The merits of the case had been decided by a decree therein made long previously to the contempt order. From this general decree no appeal has been claimed, and it is now too late to review it. By it all the questions at issue are finally disposed of. Caplis appears alone to contest a criminal order affecting him personally.

In the case of Duncan v. Campau, 15 Mich. 415, an order appointing a receiver was held interlocutory and unappealable; though in Lewis v. Campau, 14 Mich. 458, an order, professedly interlocutory, but really in effect a decree, was held appealable. Under these decisions, the court will examine the subject matter of the bill and the record, and will decide the question of dismissing an appeal according to the fact and intent.

The object of the bill had been satisfied by the decree. The proceeding for contempt and judgment thereon were collateral and incidental. The right of appeal is statutory -2 Comp. L. p. 1030-and will be strictly construed.

3. The order of the court below was correct and proper under the circumstances.

The court has the power, and should exercise the right, to protect itself, and enforce its order or process.

The record shows a clear and deliberate violation of the injunction, and this court will examine into the circumstances, for the purpose of deciding upon the intent of the party violating it, in which intent the criminality of the action of the appellant consists.