Altermatt v. Dillman

• Decision Date: 23 October 1934
• Docket Number: No. 5.,5.
• Citation: 256 N.W. 846,269 Mich. 177
• Parties: ALTERMATT et al. v. DILLMAN, State Highway Com'r, et al.
• Court: Michigan Supreme Court

269 Mich. 177

256 N.W. 846

ALTERMATT et al.

v.DILLMAN, State Highway Com'r, et al.

No. 5.

Supreme Court of Michigan.

Oct. 23, 1934.

Appeal from Circuit Court, Macomb County, in Chancery; Neil E. Reid, Judge.

Suit by Nicholas W. Altermatt and others against Grover C. Dillman, State Highway Commissioner, and others. From an adverse decree, defendants appeal.

Reversed, and bill dismissed.

Argued before the Entire Bench.

Patrick H. O'Brien, Atty. Gen., Nicholas V. Olds, Asst. Atty. Gen., and Arthur F. Lederle, Sp. Asst. Atty. Gen., for State Highway Commissioner.

Roy M. McKinstry, Pros. Atty., of Mt. Clemens, for defendant Macomb County.

Bert V. Nunneley and John H. Nunneley, both of Mt. Clemens (Douglas W. Ball and William H. Nunneley, both of Mt. Clemens, of counsel), for appellees.

Miller, Canfield, Paddock & Stone, of Detroit, amici curiae.

POTTER, Justice.

Plaintiffs, landowners, liable for special assessments for benefits for the so-called ‘Mound Road’ superhighway in Macomb county, filed a bill of complaint claiming all of the actions and proceedings taken to survey, locate, establish, and construct such highway and to build the same, to levy and spread assessments and apportion the same, are fraudulent, null, and void, and should be set aside, canceled, and held for naught; and the county treasurer of Macomb county and his successor in office be perpetually enjoined from collecting, or attempting to collect, any of the assessments levied against the lands and property of plaintiffs; a temporary injunction be issued pending termination of the suit; the state highway commissioner be perpetually enjoined from collecting, or attempting to collect, any of the assessments against the premises of plaintiffs, or from making any further assessments against their lands and premises; the state highway commissioner be required and directed to reimburse plaintiffs for the assessments levied and assessed against their property which may have been paid by them, and the assessment roll for the construction of the ‘Mound Road’ superhighway mentioned and described in the bill of complaint be decreed to be null and void and the title to plaintiffs' lands and premises be declared to be free and clear from any clouds created thereon by reason of the assessment roll for the construction of said ‘Mound Road’ superhighway and for other and further relief. Defendants appeared and answered. The case was heard. A decree was entered for plaintiffs, and defendants appeal. Various grounds are alleged as the basis for the appeal, and such of them as we deem important will be hereinafter considered.

A petition dated September 2, 1925, addressed to the board of county road commissioners of Macomb county, to lay out and establish where necessary and to improve a highway mentioned and described in such petition with such materials as the board of county road commissioners should deem best, under the provisions of Act No. 59 of the Public Acts of 1915, as amended, was filed with the board of county road commissioners of Macomb county. The petition specifically described the road sought to be improved and built, which was 12 3/4 miles in length and wholly within Macomb county. No question is raised, but that this petition was entirely sufficient to confer jurisdiction upon the board of county road commissioners of Macomb county. Their duty was to act upon the petition. The members of the Macomb county road commission considered the improvement of the road petitioned for, an intercounty project, part of a superhighway plan, particularly beneficial to Wayne county, which ought to share a part of its cost of construction and improvement. Its members realized they had no authority to assess any part of the cost of the construction of the proposed highway against Wayne county or against lands and premises situated therein; and consequently transmitted the petition to the state highway commissioner.

The statute provides: ‘Should a petition be presented to these county road commissioners for the improvement of any highway, in any county, and in the judgment of the county road commissioners, there should be lands liable to an assessment for benefits situate in any other county, then the county road commissioners shall certify such petition to the state highway commissioner, who shall thereupon proceed to act upon the same as though the said petition had been addressed to him in the first (1st) instance.’ Section 4352, Comp. Laws 1929.

The petition here involved was so certified by the Macomb county road commission March 31, 1926. Upon the question of the certification of the petition to the state highway commissioner, the trial court said: ‘While the letter transmitting the petitions to the State Highway Commissioner was informal, and while it is true that the Board of County Road Commissioners of Macomb County never had a formal meeting and never by any formal resolution adopted the judgment nor determined that there were lands in Wayne County which should be included in the assessment, yet the Commissioners themselves individually so considered and individually so expressed their views, and, in consequence, the letter of transmittal was signed by the engineer and the petitions forwarded. I conclude that while this is about as informal as the matter could be done and considered to be any action of the County Road Commissioners at all, still the proceeding is not void for want of certification to the State Highway Commissioner.’

No appeal was taken by plaintiffs from this finding upon the part of the trial court, and it will be treated as final, conclusive, and binding. Did this petition so certified by the board of county road commissioners of Macomb county confer jurisdiction upon the state highway commissioner to act?

A petition in due form having been presented to the board of county road commissioners of Macomb county, for the improvement of a road in that county, it was the judgment of such board there should be lands in Wayne county liable to an assessment for benefits. It was the duty of the board of county road commissioners of Macomb county under the circumstances to certify the petition to the state highway commissioner. The petition was so certified. What was the duty of the state highway commissioner? It was his duty to proceed to act upon such petition the same as though the same had been addressed to him in the first instance. Up to this point in the proceedings (a) the original petition was in proper form; (b) it was addressed to the board of county road commissioners of Macomb county; (c) in the judgment of the board of county road commissioners, there should be land in Wayne county liable for an assessment for benefits; (d) it was the duty of the board of county road commissioners thereupon to certify the petition to the state highway commissioner; (e) the petition was so certified; (f) and thereupon the state highway commissioner acquired and had jurisdiction in the premises, regardless of subsequent irregularities. Hall v. Slaybaugh, 69 Mich. 484, 37 N. W. 545;Lanning v. Palmer, 117 Mich. 529, 76 N. W. 2;Hinkley v. Bishopp, 152 Mich. 256, 114 N. W. 676;Ranney Refrigerator Co. v. Smith, 157 Mich. 302, 122 N. W. 91.

This court has said a petition to lay out a drain conferred no jurisdiction to lay out a Covert road. Certainly a petition to lay out a Covert road would confer no jurisdiction to build a town hall, and it has held a petition for a drain did not confer jurisdiction upon the drain commissioner to lay out a sewer. A justice of the peace has no jurisdiction to try and sentence to imprisonment a man for the crime of murder, but a justice of the peace has jurisdiction to try questions of assault and battery, and, if one charged with assault and battery is tried by a justice of the peace, and it appears upon the trial the assault and battery was committed outside the county in which the justice holds office, the conviction of defendant by the justice is not void for want of jurisdiction, no matter how erroneously the justice may have acted in the premises. There is a difference between a want of jurisdiction and a mistake in jurisdiction, or an error in the exercise of jurisdiction. This rule was clearly laid down by Mr. Justice Brewer, afterward of the Supreme Court of the United States, in Cooke v. Bangs (C. C.) 31 F. 640; is the basis of the text of Van Fleet's Collateral Attack, pp. 74 and 75, and was approved in Bradley v. Fisher, 13 Wall. 335, 351, 20 L. Ed. 646, where it is said:

‘A distinction must be here observed between excess of jurisdiction and the clear absence of all jurisdiction over the subject-matter. Where there is clearly no jurisdiction over the subject-matter any authority exercised is a usurped authority, and for the exercise of such authority, when the want of jurisdiction is known to the judge, no excuse is permissible. But where jurisdiction over the subject-matter is invested by law in the judge, or in the court which he holds, the manner and extent in which the jurisdiction shall be exercised are generally as much questions for his determination as any other questions involved in the case, although upon the correctness of his determination in these particulars the validity of his judgments may depend. Thus, if a probate court, invested only with authority over wills and the settlement of estates of deceased persons, should proceed to try parties for public offences, jurisdiction over the subject of offences being entirely wanting in the court, and this being necessarily known to its judge, his commission would afford no protection to him in the exercise of the usurped authority. But if on the other hand a judge of a criminal court, invested with general criminal jurisdiction over offences committed within a certain district, should hold a particular act to be a public offense, which is not by the law made an offense, and proceed to the arrest and trial of a party charged with...