City of Berkley v. Royal Oak Tp. (In re City of Huntington Woods)

• Citation: 31 N.W.2d 825,320 Mich. 597
• Decision Date: 05 April 1948
• Docket Number: Motion No. 383.
• Parties: CITY OF BERKLEY v. ROYAL OAK TP. et al. Appeal of CITY OF HUNTINGTON WOODS.
• Court: Supreme Court of Michigan

320 Mich. 597

31 N.W.2d 825

CITY OF BERKLEY

v.ROYAL OAK TP. et al.

Appeal of CITY OF HUNTINGTON WOODS.

Motion No. 383.

Supreme Court of Michigan.

April 5, 1948.

Appeal from Circuit Court, Oakland County; H. Russel Holland, judge.

Proceeding for a writ of mandamus by the City of Berkley, a municipal corporation, and the City of Huntington Woods, as cross-plaintiff, to compel the Township of Royal Oak, City of Royal Oak, City of Ferndale, City of Clawson, City of Hazel Park, municipal corporations, and others, to reassess road and fire protection districts within the township for amounts due from them to the township general fund, and to pay over to plaintiff cities their proportionate share thereof when collected. From an order dismissing the petitions, cross-plaintiff City of Huntington Woods appeals.

Order affirmed.

Before the Entire Bench.

Arthur E. Moore, of Royal Oak, for cross-plaintiff and appellant, City of Huntington Woods.

Glenn C. Gillespie, of Pontiac, and Franklin E. Morris, of Ferndale, for appellee Royal Oak Tp.

DETHMERS, Justice.

The cities of Berkley and Huntington Woods, hereinafter called plaintiffs, were incorporated on April 18, 1932, and June 22, 1932, respectively, out of territory located in Royal Oak Township, Oakland County, Michigan. Prior thereto the township had been divided into four road districts and also into a special assessment fire protection district. These districts did not include any territory within the plaintiff cities, which then were villages. Taxes were levied in the road districts for road repairs and a special assessment was levied in the fire protection districts for fire protection. While the assessments were adequate, nevertheless, because of delinquencies and defaults, collections were not, with the result that at the time of incorporation of plaintiff cities there had been advanced from the township general fund the sum of $88,132.41 for road repairs in the road districts and $8,387.57 for fire protection in the fire protection district. For none of this was the township general fund ever reimbursed by said districts, the said assessments in that amount continuing uncollected. Were the general fund to be reimbursed from collection thereof in the districts, the plaintiff cities would be entitled to their proportionate share therein because of their incorporation out of the township. 1 Comp.Laws 1929, § 2250, as amended by Act No. 233, Pub.Acts 1931, Comp.Laws Supp.1940, § 2250, Stat.Ann. § 5.2093. Township of Royal Oak v. City of Berkley, 309 Mich. 572, 16 N.W.2d 83;Township of Royal Oak v. City of Huntington Woods, 313 Mich. 137, 20 N.W.2d 840.

In 1941 the city of Hazel Park was incorporated out of territory in Royal Oak Township included in said fire protection district and in one of said road districts. The cities of Ferndale and Royal Oak in 1940 and 1942, respectively, annexed portions of the township territory included in said road and fire protection districts.

Plaintiff city of Berkley, and the city of Huntington Woods as cross-plaintiff, petitioned the circuit court of Oakland county for a writ of mandamus to compel the defendants, township of Royal Oak and cities of Royal Oak, Ferndale and Hazel Park, to reassess the said districts for the amounts due from them to the township general fund and to pay over to plaintiff cities their proportionate share thereof when collected. From an order dismissing the petitions, plaintiff city of Huntington Woods appeals.

The question raised on appeal is whether reassessments may be made in the road districts and in the fire protection district to repay the overdrafts to the township general fund. Plaintiff states that this action is brought in view of statements pertaining to these overdrafts appearing in our opinion in Township of Royal Oak v. City of Berkley, supra, including the following [309 Mich. 572; 16 N.W.2d 86].

‘It is conceded that the city is entitled to insist on such reassessment, and we concur with the holding of the lower court that the city is entitled to its pro rata share of the money when and as collected.’

However, in that case we also said:

‘* * * the question of the duty to reassess is not an issue in this case.’

Plaintiff refers to and quotes in part from the following contained in McFarlan v. Township of Cedar Creek, 93 Mich. 558, 53 N.W. 782, 783:

‘The statute evidently contemplates that each district shall bear its own burdens. It points out distinctly in what manner moneys shall be raised to pay outstanding orders, whether chargeable to the township generally, or to particular portions of the township, or to road districts. Its design is that these orders, if chargeable to certain road districts, shall be paid out of moneys collected from such districts. It would seem here that moneys collected from certain road districts had been expended in others. The proper course would seem to be an adjustment of those matters, not by a general tax upon the township, but by an assessment upon those districts from which balances are due. Nor is it within the power of the township board to make that a township charge which the statute designs should be a district charge, by the retirement of orders drawn upon district funds, and the issue in their stead of township orders.’

The McFarlan case holds that a special highway tax may not be levied on the property in the entire township to pay highway orders drawn on a highway fund of a particular road district within the township, but such assessment should be levied on the property in the road district. The case is not authority for the proposition that once the assessment is so made in the district a reassessment thereof may be made to the extent of the uncollected portion of the orginal assessment. The holding that road district debts are to be paid by the district and not by the township is expressly predicated on provisions of the statute then in effect, Act No. 71, Pub.Acts 1881, Comp.Laws 1897, §§ 4210, 4211, How. §§ 1448, 1449, which provided in part that the amount of unpaid highway orders drawn...