dissenting:
The first question' reserved is, Whether the Detroit and Birmingham Plank Road Company are exclusively authorised and required to construct, repair, and maintain a plank road upon the premises in question. The counsel for the defendants having admitted this, and no argument having been made against it, we may properly assume it to be true. Such is the fair construction of the Plank Road Charter, and no facts are introduced to change it.
The second question depends on the first. If the Plank Road Company is under an exclusive obligation, and if it has an exclusive right, the City can not have the right to pave the road so occupied, without the consent of the Company. There can not well be one distinct and another exclusive .occupation of the same premises at the same time.
Had, then, the City the right to levy an assessment on the complainant’s property for the purpose of paving this turnpike? I do not perceive how an assessment can be legally levied to pay for a pavement unless the City has the right to make it; ’ and it certainly could not lawfully pave this street against the will of the Company. But the defense set up is, that this is a matter entirely between the Company and the City, with which the complainant has no concern. If this tax had been levied for paving a strip of land never dedicated to the public, it would be acknowledged at once that the City had no jurisdiction. And yet in that case the owner could have assented, and made it a highway after the paving was done. The true objection there, as here, would be, that the City had no right to charge the tax where there was no legal assurance that the property assessed could retain the advantages which the law assumes as authorizing *347the burdens. Where taxes are laid.in any other way than upon the community generally, they must ensure some peculiar advantage to the property or person charged, or they are not legal. And until the City has previously obtained the right to have the benefits of the pavements assured to the tax-payers, no assessment can be maintained on any legal or. constitutional principle. In this case, the Plank Road Company, having control of the road bed, can, so far as the case shows, destroy the pavement and restore the plank. The charter gives the right to undisturbed use and enjoyment; and, if the City had no right to levy the assessment in the outset, the subsequent assent of the -Company, if given (which it does not, however, appear to have been), would not legalize an act which was instituted without authority.
The power of the City to pave is granted in immediate connexion with the imposition of a duty to work and keep the streets in repair, and to have general control and supervision of them. — Laws of 1857, pp. 96, 119, 132. The one power is attached to the other, and the dependence 'is based in reason, as well as law. Paving is but one method of keeping a street in repair. If the custody of a particular road is vested in another body, I do not perceive how the right qr duty in the City to pave could attach to it, whether that other body is a private corporation with chartered and indestructible rights, or a local board. — Local Board of Health of Kingston-upon-Hull vs. Jones, 28 Eng. L. & Eq. 349. The powers of a city are just as subject to legislative control as those of a highway commissioner, and it is entirely competent to limit and define them at pleasure. And there is no legal objection to making one or 'all of the streets exempt from any control of the Common Council. The whole subject is in the hands of the Legislature, but when any portion of the streets has been legally entrusted to a private corporation, the Legislature can not (and in this case has not attempted to) transfer the trust to others, without consent or compensation. The assessment of this paving-tax was, I *348think, entirely unauthorized, so far as the bill shows. If facts exist to legalize it, they do not appear in the case.
The jurisdiction of Chancery to restrain public officers, when acting illegally and beyond their jurisdiction, is maintainable as well when goods and '.chattels as when other property may be assailed, if the circumstances of the case are such as to render it expedient. Where the act is merely irregular, or where the same thing can be accomplished inevitably by a further new procedure, an injunction will not be- granted without strong grounds of equity. — Mercer vs. Williams, Walk. Ch. 85. In the case before us, the whole proceeding is illegal for want of power. To turn the complainant over to an action at law, would be to enable the City to build these improvements by general tax. The charter expressly provides that paving shall be at the expense of the adjacent lands, and that no contract shall be made for it until a tax is levied, and then payment can only be made out of the specific fund. If the land owner is put to his action, the money collected of him goes to pay for an illegal work, and he is re-imbursed out of the general fund, to which, as a tax-payer, he is also bound to contribute. If the plain intention of the charter can thus be avoided, the citizens will lose the benefit of all those safeguards which have been so 'carefully devised to prevent this very evil. Besides, no remedy against a city can be said to be free from difficulty in its final enforcement. And it is by no means the' policy of the law to encourage or permit the expansion of corporate liabilities. If the contractors should suffer, they are in the position of others who have made illegal bargains. It is not supposable that they can have contracted without inquiry. If they have done so, courts may not, out of any desire to save them from loss, amerce the rest of the community for their benefit. And, however the complainant may be benefited by the improvement if it should be permanent, he has not the legal assurance of its permanence, and can not be compelled to *349pay for an uncertain benefit, without a compliance with the statute.
I think this a proper case for an injunction.
Ordered certified, That, in the opinion of this Court, the bill does not present a case .authorizing an injunction.