Council Proceedings

[OPFICIALj COUNCIL CHAMBER. 1 Aiui Arbor, April 18th, 1898. J Regular Session. Oalled to order by Pres. Luick. lloll called. Quorum present. Absent Aid. Vandawarker, Cady. COMMUNICATION FROM THE MAYOR. Ann Arbor, Mich., April 18, 1898. To the Honorable the Common Council of the City of Ann Arbor: Gentlemen: IL again becomes my duty as well as pleasuretoconfnr witii your honorable body in relatiou to the affalrs of our city. The general expenses of the city for the past year trom April 1, '97, 10 April 1, 98, as taken trom the Treasurer's report are as follows: Contingent fund $16793 12 Street funü 148W 20 Fire department fund 71.96 60 Water fund 6154 50 Bridge, culvert and crosswalk fund... 4814 31 Pólice fund 3373 55 Poor fund 245 38 Cemetery fund 384 U0 Dog1 tax and licenso 68 25 Total $50760 1 The following bonds were redeemed by the city: Hospital bonds $ 3000 00 Interest 120 00 Mainsewer bonds 2u00 00 Interest 1120 00 Total 6240 00 In addition sewer district bonds were paid by taxes colleeted trom special assessments. DistrictNo. 1 $ 1000 00 2 1500 00 3 65U0 00 4 1000 00 5 2500 00 6 3170 92 $15670 92 Interest - 1474 19 Total $17145 11 Leavinc; the bonded indebtedness as folloWS: Main sewer - $22000 00 District No. : - BöOO 00 i 1000 00 ñ 5000 00 ti 9381 19 7 1887 48 Total $45788 67 of which $22,000 is a direct obligation and $23,768.67 an indirect obligation of the city. In tny communication to the Council of 1897 I recommended the paving of Main st. and am glad to state that the idea was approved by the property owneis and adopted by the Council and the prospect is that the work on this improvement will soon commence, and I believe iL a good brick pavement is secured on this Street its cleanliness ana beauty will so eommend itthat the property owners on the remaining business streets will avail theinselves of the opportunity to secure this great improvement on the liberal terms offered by the ordinance. Fourth ave. should be paved from Ann st. to Liberty, and Ann, Iluron, Washington and Liberty trom Ashley to Fourth ave. or Huron and Washington could be extended to Fifth ave. This would practically cover the business part of our city and place all business property on an equal footing. During the past year two streets were macadamized, 8. Lniversity ave. and División st. south of Iluron and the conditiou of these streets in the spring and at the present time leads me to believe that this work :s a success, and I desire to recommend that one tuile of this macadam work be built each year and considerable of the cost can be saved if the crushed stone be purchased and shipped here ready for use. When we gat our business streets paved and our residence streets macadamized they will be in perfect coudition and we will no longer hear the inquiry, "Are our streets muddy ov dusty?" In eonnection with this permanent elass of work inore money is needed than can be raised in one year under the charter and steps should be taken to secure the necessary authority to raise the additional amount needed for paving purposes and the sum raised should be placed in a special fund and'used only for the extra work made necessary by paving the streets. For a statement in detail of the work done on the streets and crosswalks the past year I beg to refer you to the report of the Board of Public Works. The Council of 1897 appointed a Committee to consider the advisability of sectjlring land for a park on the JSorth side. Owing to the fact that the electric road between Ann Arbor and Detroit will soon be completed and thousands of visitors coming to our citv I believe the time has arrived to secure the land offered. The site selected embraces the 30 acres just north of the river at the point where the island lies and is an ideal spot for ] the establishment of a park. It is : jacent to the beautiful boulevard and nature has so completed her work that a comparatively small amount of money would be required to give Ann ( Arbor one of the fmest if not one of the largest parks in the country. I'roperly constructed and with the i right kind of pólice surveillance it would be the most marked addition to the city that has been made in years, would enhance the value of property and what is perhaps more would add largely to the enjoyment of life. During the past year good order has been maintained in the city. There have been some violations of the law and there always will be. We have endeavored to enforce the law and ordinances, and our citizens generally and the great body of students here have been quiet and law abiding and I challenge anyone to name a city where the laws have been so generally observed and good order maintained as in the City of Ann Arbor. I desire to renew my recomrnendation of last year for all night lighting in the business part of the city believing it would be an aid to our pólice forcé in protecting the property interests of our citizens. We are all interested in the growth and welfare of our city and in your labors for its advancement I assure yon that you can depend on my active and earnest assistance. Chas. E. Hiscock, Mayor. Aid Coon moved that the message of the Mayor be referred to a special committee of three for división and reference. Adopted. L'res Luick appointed Aid. Coon, Brown and Koch as such special committee. Pres. Luick appointed the following Standing Comniittees of the Common Council for 1898-99. Finance- Aid. Brown, Hamilton, Coon. Ordinance- Aid. Cady, Brown, Spathelf. Sewers - Aid. Sweet, Richards, Dieterle, Vandawarker, Weeks, Howell, Stevens. Streets - Aid. Koch, Hamilton, Sweet, Vandawarker, Spathelf, Coon, Cady. Sidewalks- Aid. Hamilton, Dieterle, Exinger, Brown, Weeks, Howell, Stevens. Fire Department- Aid. Spathelf, Dieterle, liicliards. Water - Aid. (Joon, Brown, Koch. Pólice- Aid. Dieterle, Cady, Howell. Lighting- Aid. Steveus, Richards, Spathelf. Bonds - Aid. Vandawarker, Koch, Exinger. Licenses- Aid. Richards, Cady.Coon. Park- Aid. Exinger, Weeks, Vandawarker. Poor- Aid. Howell, Hamilton, Koch. Cemetery - Aid. Weeks, Sweet, Stevens. PETITIONS AND COMMUNICATIONS. To the Common Council: The Board of Public Works respectfully submit the following bids for paving that portion of Main st. lying between Catberine and Liberty otherwise known as Paving District No. 1 with brick and asphalt, also for storm sewers: lïlilï 'Mhi ■Isfli IIp 5f Ifnf 1 . . . O . . Í5 . ■ I I ( ' I ■ i-J I ' 8 Í2 ë L g S 3 ë S S " ts 2 s 5 S -i s o gssL 888LSU rfk t CC if Oï CO -T CT "■- 4" 7) 'cc V o "-i w b kb o ca "p S 2 3 M 5 t-1 o: ? l- u O O t-5 O Í CO Qi T' Ot C -3 W W O Cl jj SèoSSS g88S83? S SI U il 8 2 ë h 8 8 S Si 33 L & 3 L SCOCDO 14 W '!O O CJ ? 828 g 8 8 5S S The Board would respectf ully recommend that the contract be awarded to Wm. J. Clancy the lovvest bidder for the work complete. Eespectfully submitted, Glen V. Mills, Clerk of the Board of Public Works. Aid. Coon moved that when the Oouncil adjourn it adjourn until ïhursday, April 21st, 1398, at 7:30 p. m. Adopted as follows: Yeas- Aid. Hamilton, Richards, Koch, Dieterle, Sweet, Exinger, Brown, Spathelf, Weeks. Coon, Howell, Stevens, Pres. Luick- 13. Nays- None. To the Common Council: The Board of Public Works respectf ully request your honorable body to allow them to purchase ten thousand feet of oak plank for erossings. Respectf ully submitted, Glen V. Mills, Clerk of the Board of Public Works Aid. Koch moved that the Counei concur in the request of the Board. Adopted as follows: Yeas- Aid. Hamilton, Richards Koch, Dieterle, Sweet, Exingei Brown, Spathelf , Weeks, Coon, Howel Stevens, Pres. Lmick - 13. Nays- None. A petition signed by August Albe and 5 others asking tor a sidewalk on Third st. was read and referred to the Sidewalk Committee. To the Honorable the Common Council of the City of Ann Albor: We, the undersigned, being a majority of all the owners of the Real Estáte subiect to assessment for the ment of Main street between Liberty and William streets, respeetfully petition your Honorable Body to pave that part of Main street between Liberty and William streets with brick or asphalt and in accordance with the provisions of an ordinance of the City of Ann Arbor, entitled, "An Ordinance Relative to Street Pavements" passed July 7th, 1897. Signed: - Christian Mack, Xoah W. Cheever, Edward Treadwell Estáte, L. Gruner, Sarah Schnmacher, Eruil Golz, Fred Schmid, Jacob Laubengayer, Stephen Pratt by F. II. Belser Agt., Geo. W. Moore, John M. Wagner, Wm. Aprill. By Aid. Brown. Resolved, that the petition for paying Main st. between Liberty and Williams sts. be referred to the Board of Public Works to determine if the petitiooers are the owners of the greater number of feet of real estáte fronting on Main st., the street proposed to be improved, and for an estímate of the cosí of grading, paving with brick or asphalt on concrete foundation, curbing and other work on said street within said limits. Adopted as follows: Yeas- Aid. Hamilton, Richards, Koch, Dieterle. Sweet, Exinger, Brown, SpathelE,Weeks,Coon, Howell, Stevens, Pres. Luick - ]5. Nays- None. (Contiuued on Fourth Pase-) COUNCIL PROCEEÚINGS. [OFFICIALj Continued f rom Third Pasre. To the Honorable theComrcon Council. Gentlemen : Ia the matter of the liability of the City in the Wetherbee case, the maintainance of the bridge over the Michigan Central railroad and the opening of State street, reforred to me, I respectfully submit the following report. On Maren 26th 1886, the City entered into a certain contract with the Michigan Central Railroad Company the conditionsof which are substantially as folio ws : 1. The City to vacate and abandon State street between Fuller street and the company's right of way and all of Page street north of Pulier street. 2. To change the grade of Detroit, Pontiac and Broadway streets so as to permit the construction of an overhead bridge, with approaches of a grade not exceeding six f eet in a hundrod. 3. To close temporarily the crossingof Detroit, Pontiac and Broadway streets across the company's tracks, and stop the use thereof duricg the progress of the work of the construction of said bridge. 4. To pay said Company five thousand dollars on the flrst day of February, 1887. The Railway Company agreed, 1. To erect a passenger building at a cost of twenty thousand dollars, and tb begin the construction thereof upon the vacation of the streets aforesaid by the City. 2. To build an iron bridge over its tracks in accordance with the design and details agreed upon between the City Engineer and the Chief Engineer of the eompany. 3. To build the approaches to said bridge with earth so as to afford a roadway twenty-four feet wide with natural 6lopes and with a grade not exceeding six feet ia a hundred. 4. To build sidewalks along the east side of said approaches with a handrail on the east line of said walk. 5. Tó' build a high, close, boat-d fence on both sides of said bridge. 6. To maintain the masonry of said bridge at its own expense. "-. To extend sewer pipes running under its tracks. 8. To save tbe City harmless during the performance of tbe work. 9. To deliver the said bridge, and approaches with sidewalks and fences as aforeeaid, into the possession of the Ctty free of all liens. 10; To f urnish suitable and convenient access between its station building and State street for foot passengers and teams. 11. To waive any claim for damage, if at any time the City desirea to construct an overhead crossing upon the line óf State street, over its right of way. It is my opinión that if the City had the power to make the above contract wfttí the Pwailroad Company, and if the same was valid and binding as between the city and tbe compaay, that the city is notliable in the Wetherbee case. Detroit street was opened and was a pvtblic highway at the time the railroad was constructed across it, and both the common law and the statutes of this state impose upon the company, in crossing a highway, the duty to construct and maintain its crossiug in such a manner as to make it reasonably safe for public travel. The statute declares that the Company must restore the highway to its former state as near as may be, aod to construct suitable road crossings for the passage of teams, etc. Howell Statutes 23323. In the case of Maltby vs. the Chicago and West Michigan Railroad Company, 52 Michigan 108, the plaintiff was on his way to Muskegou with a load of hay, and on passing over the defendant's track his load was upset and he was injured. He attributed the occurance to the unsale condition of the south approach to the rails, and sued the compan y for damages. The circuit judge directed a verdict for the defendant and tbe plaintitf appealed to the Supreme Court. En deciding the case the Court says : 'The company contend that it was not subject to any duty to keep the approahes to its tracks in order at the crossing of public roads. That its only duty was to restore the road, when the crossing is made, to its former state as near as may be, lea ving it as a duty of the public to keep up and preserve the roper cooditions th reafoer, and to do w naïever eise the public safety or conve&ience may dictate." MWh ether the" duty to prevent the defects complained of extended to the city of, Muskegon there is no occasion to decide. It is quite sufïicient that on the theory of f act affirmed by the plaintiff, the suit is well brought against the defendant. If any üuty lay upon the city to:preserve the approach and crossing in a reasonably safe condition, it was not exclusive. It had no effect to derógale f rom the duty, or mitigate the responsibility of the defendant, and it could make no difference with the quéstion of liability as between tbe latter and the plaintifï. Under the state 'of facts on which the plaintiff relies, the defendant would certainly be liable whether the city would be or not."' . This case is oited and sustained in the following oases: Thayer vs. the Flint and Pere Marquette Railroad 'Jompanv 93 Mioll. 150. Tobías vs. Railroad Company 103 Michigan 338. Jetïry vs. Railroad Co. 65 N. W. R. 755. I hold that the company cannot relieve itself of of the duty imposed upoa it both by common law and statute by maliing the coutract aforesaid with the city. 1 claim aiso that the contract is ultra vires. Ie the case of Grand Rapids vs. the ori-and Rapids and Indiana Railway Company, reported in the 66 of Michigan at page 42, upon the petition of certain property owners, and a resolution of the council, a part of Seward street was vacated and the defendant was permitted to use that partso vacated on condition that it build and maintaiu a certain passenger station, ob condition that First street should not be continued across its railroad. The city subsequently fited a petition to open First street, across the railroad laid on Seward street, at the time the latter was vacated by the city, and the defendant set up the contract made with the city wbereby the city agreed hever to open First street across the right of way granted it on Seward street. The trial judge held the contract in valid and the company appealed the case to the Supreme (Jourt. In discussing the rights of the company under the contpact the court says: "The powers of a municipal oorporation in respect to opening, improving, and coutrolling its streets are held in trust for the public benefit, and cannot be surrendered by contract to private persons or toa Corporation, by resolution of the common council, or in any other marmer. If this could be done, there is no reason why the common council of any year may not, by con tract, preclude the city for all future time from opening, widening, or extending any of its streets, or laying out new streets, no matter how great the public necessity may ba therefor. " In the case of the Wabash Railroad Company vs. the city of Defiaoce, reported in volume 7 General Digest at page 774, the company crossed two streets at a grade eighteen feet below the grade of the street, where the same crossed the railway. The city council passed an ordinance permitting the railway to erect two bridges across its track, where the same crossed the two highways. The ordinance described in a ereneral way the bridges to be constructed by the company, and pro vid ed for a side walk on each side of said bridges. The work to be done to the satisfaction of the city and the bridges were to be kept in repair by the company. The terms and conditions imposed by the ordinance were well and faithfully kept by the company. The city subsequently changed the grade of the streets aforesaid, where they crossed the railway track, to the level of the railway, and so changing the approacb.es as to cause them to descend to the level of the road. The railroad company filed a petition in the court of common pleas for I)efiance eounty, Ohio, to enjoin the city of Defiance from proceding with the improvement of the streets aforesaid, by which they would be so graded as to neeessitate the removal of the bridges aforesaid and the approachss to the same. The court dismissed plaintiff's petition and it appealed to the Supreme court of the state of Ohio, where the decisión of the lower court was attïrmed. Plaintiff then appealed to the United States Supreme court and the case was affirmed by that court. In delivering the opinión of the United States court Mr. Justice Brown says: "It (the city) does not agree that the bridges and their approaches shall remain any particular length of time, or that it shall not make new requirements as the growth of the city may seem to suggest. The only contract as to time which could possibly be extracted from this ordinance would be that the railway eompany, on building the bridges and approaches, should be entitled to maintain them in perpetuity. The result would be that, if the city should, in growth of its population, beeome thickly settled in the neighborhood of these bridges, they would stand forever in the way of any improvement of the streets. This proposition is clearly untenable. It is incredible, in view of the Janguage of this ordinance, that the city should have intended, or the railroad company expected, that the former there by relinquished forever the right to improve or change the grade of the streets." "If it were possible that the city could make such a contract at all, it could oniy be done by expresa authority of the legislature and in language that would admit of no other interpretation. It is claimed that the coiistruction of the-sidewalks by the railroad company was a consideration, since it had been the duty of the city up to that time to keep them in repair; but it surely could not be a consideration for the perpetual caintenance ot the bridges. If it were a permission for anything it would sirnply be for the permission given the railway company to buiid the bridges- a permission obtained upon a special application of the railway company. Properly construed, this ordinance was simply a license to the company to build these bridges, and to continue them until the city council should conclude that it was for the public interest to so change the grade of the street as to make it a level crossing." That the city in the absense of a statute permitting it, would have no authority to enter into such a contract with the railroad company is admitted? "Indeed, the general principie that the legislativo power of a city may control and improve its streets, and that such power, when duly exercised by ordinanees, will override any license previously given by which the control oí a certain street has been surrendered to any individual or Corporation, is so well established, both by the cases in this court and in the courts of the several states, that a reference to the leading authorities upon the subject is sufflcient. Indeed, the right ot the city to improve its streets by regrading or otherwise is something so esseniial to its growth and prosperity that the commou council can no more denude itself of that right than it can oL its power to legislate tor the health, safety and moráis of its inhabitants. " The learned Judge then discusses at great length a large number of cases suataining the above both by the Supreme Court and the courts of the several states, and among them, the Grand Rapids case, referred to above, in the 66 of Michigan, aad continuing says : "While, in 188", overhead bridges might have seemed a better and safer plan of crossing the railway, than crossing at grade, the subsequent growth of the city may have demanded a different policy'in 1893. It is hardly possible that the approaches ivequired to reach an overhead bridge, which was 10 or 12 feet above the general level of the gro'ind, should not have affected, to a certain extent, the value of the adjoining property as city lots ; but whether this is true or not, it was purely within the diacretion of the comtnon council to determine whether the public exigencies required that the grade of the street be so changed as to cross the railroad at a level." "Upon the whole, we think it elear that the common oouncü acted within its powers in changing the grade of the street in question, and that the plaintiff has no legal right to complain of its aotion." I have quoted from the above case at such lengtn because I deern it conclusive on the right of the city to change the grade of Detroit ttreet and remove the bridge, and its approaches, across the tracks of the Michigan Central, and also to open up State street. I do not claim that the city can compel the Company to keep the bridge in repair, but 1 do claim that the Company is liable to any one who may be injured in crossing the bridge, by reason of its being out of repair, and that tbe city can change the grade of tüe street and remove the bridtre. Respectfully submitted, Thos. D. Kearney, City Attorney. By Alderman Brown. Whereas, the bridge over the tracks of the Michigan Central Railroad Company conneeting Detroit street and Beakes street with Broadway street, is now maintained in a condition working serious delay and hardship to the large proportion of our population resident of the Fifth ward, and dangerous in general to public travel thereon. and Whereas, said Company denies its liability to maintain and keep in repair said bridge and its approaches, and has permitted said bridge to be and remain in an unsafe condition. and has f'ailed to build and maintain a railing between the sidewalk and the traveled portion of said bridge and its approaches, and Whereas, It would further facilitate greatly the convenience, comfort and general good of the citizens ot Ann Arbor to provide a highway by opening State street across the tracks of said Company, and thereby restore to the üse of the public the rights and privileges heretofore therein enjoyed, Therefore, Resolved, That the street committee cause to have made. fix?d and established a grade on Detroit, Beakes, Broadway and State streets where said streets cross the tracks of the Michigan Central Railroad Company, changing the grade of said streets where they cross the tracks of said railway, to the level of said railway, and the approaches so as to cause them to deeend to the level of the road, and report same to this council without delay. Adopted as follows: Yeas - Aid. Hamilton, Richards, Koch, Dieterle, Sweet, Exinger, Brown, Spathelf, Weeks, Coon, Howell, Stevens, Pres. Luick - 13. Nays - None. To the Hon. the Common Council: Gentlemen: - In accordance with a resolution passed at your last meeting directing me to prepare a contract witu A.J.Mummery for land for a city dumping ground, I respectfully report that I have prepared said contract in duplicate and have had the same executed by Mr. Mummery and suggest that you pass a resolution directin the Mayor and City Clerk to execute the same in behalf of the City. Respectfullv submitted, Thos. D. Kearney, City Attorney. Aid. Brown moved that the council direct the Mayor and City Clerk to sign the contract on the part of the City of Ann Arbor. Adopted as follows: Yeas- Aid. Hamilton, Richards, Koch, Dieterle, Sweet, Exinger, Brown, Sp&taelf, Weeks, Coon, Howell, Stevens, Pres. Luick- 13. Nays - None. RESOLUTIONS. By Aid. Coon. Resolved, That the rules of the former council be and are hereby adopted for the government of the common council for the ensuing year. Adopted as follows: Yeas- Aid. Hamilton, Richards, Koch, Dieterle, Sweet, Exinger, Brown, Spathelf, Weeks, Coon, Howell, Stevens, Pres. Luick - 13. Nays - None. Bv Aid. Coon. "Resolved, That the bonds of the liquor dealers and drupgists be placed at $3000 and $2000 respectively. Adopted as follows: Yeas- Aid. Hamilton, Richards, Koch, Dieterle, Sweet, Exinger, Brown, Spathelf, Weeks, Coon, Howell, Steven, Pres. Luick - 13. Nays - None. By A ia. Coon. Resolved, That a new sidewalk be and the same is hereby ordered built on the uorth side of South University Avenue from Forest Avenue to Washtenaw Avenue along the property of the Ford estáte, and that the sidewalk committee be respectfully requested to report a suitable grade for the same at the next regular meeting of the council. Referred to sidewalk committee. Aid. Sweet called the attention of the council to naming a street in the third ward. Referred to the ordinance committee. On motion ttie council adjourned. City Clerk.