Brady v. Hayward
| Decision Date | 14 September 1897 |
| Citation | 114 Mich. 326,72 N.W. 233 |
| Parties | BRADY v. HAYWARD, COUNTY DRAIN COM'R, ET AL. |
| Court | Michigan Supreme Court |
Error to circuit court, Sanilac county; Watson Beach, Judge.
Certiorari by Michael Brady against Hiram S. Hayward, county drain commissioner, and William H. Burgess, judge of probate, to review the proceedings taken by them in locating and establishing the Black river drain. The circuit court found that the proceedings to establish the drain were invalid, and defendants bring error. Certiorari dismissed.
The supreme court will review the action of the circuit judge in declaring, in a certiorari proceeding, that the proceedings to establish a drain were invalid, where the petition for certiorari alleged that there were jurisdictional defects though plaintiff did not serve notice of certiorari on the commissioner within 10 days after determination of such commissioner in establishing the drain, as required by 3 How Ann. St. � 1740e4, nor until several months after that event.
The drain in question had an entire length of 19 miles, part of it being laid up the channel of a river. Statutory certiorari to review the proceedings would not lie, since no notice thereof had been served on the commissioner within 10 days after his determination in establishing the drain, as required by 3 How. Ann. St. � 1740e4, and defendants contended that common-law certiorari would not lie because of the delay of several months in applying for the writ, and also because other remedies were open.
H. O. Babcock and William Dawson, for appellants.
J. H Farley (E. F. Bacon and E. F. Law, of counsel), for appellee.
This is a proceeding to review the action of the circuit judge in declaring, in a certiorari proceeding, that in the establishment of the Black river drain, in Sanilac county the proceedings were invalid. The circuit judge does not give the reason for reaching the conclusion he did. The drain does not run through the land of the petitioner, but his land is within the assessment district, and he is liable to pay a tax of about $200 if the drain is constructed. At the outset it is claimed by the defendant that the common-law writ of certiorari is not the proper remedy to secure a review of the proceeding. Inasmuch as the petition alleges there are jurisdictional defects in the proceedings to establish the drain, we are inclined to dispose of the case as presented here. Loree v. Smith, 100 Mich. 252, 58 N.W. 1015; Moore v. McIntyre (Mich.) 68 N.W. 130. It is objected that the law of 1885 is unconstitutional. This law has now been in force a little more than 12 years. Its construction has been before this court repeatedly, and it has been repeatedly held to be constitutional. Houselman v. Circuit Judge, 58 Mich. 367, 25 N.W. 369; Mathias v. Cramer, 73 Mich. 5, 40 N.W. 926; Smith v. Carlow (decided at this term) 72 N.W. 22. We see no reason for changing these decisions.
It is also objected that the basis of the assessment is illegal, because the apportionment is made upon the per cent. of benefits to accrue, and is not made in dollars and cents. There is some language used in the case of Kinnie v. Bare, 68 Mich. 633, 36 N.W. 672, that might give support to this contention. But the point was not involved in that case, and the learned judge who wrote the opinion characterized what he said upon that subject as a digression, and ended by saying, "I want to say I express no opinion upon the validity of the law authorizing assessment for benefits for the construction of drains, as the question was not argued in this case." Section 1740e2, 3 How. Ann. St., and the amendment as found in Laws 1895, p. 229, provide for the apportionment upon the basis of the per cent. of benefits to the township because of the benefit to the public health, or as a means of improving any highway, and also against lands according to the per cent. of benefit. The fact that a drain is established involves the finding of the fact that it is necessary and conducive to the public health. It is not conceivable, taking this fact into consideration, that a drain is not worth to the townships and to the land to be affected by it all that it costs. This being established, we cannot see any injustice in apportioning the cost of the drain in the manner provided by the statute. This has been done now for 12 years, and was done in the many cases which have been before this court for review during that time. These proceedings were commenced prior to the amendments of the drain law as made in 1895. The application complied with the requirements of the law as it then existed. It is urged that the amendment of 1895, in relation to the persons who shall sign the application for the establishment of the drain, repealed the law of 1885, and that the commissioner could not go on from the point where the law of 1895 found the proceedings, but that all that had been done up to that point must be dropped, and the proceedings commenced anew; citing City of Detroit v. Chapin (Mich.) 66 N.W. 587, and other cases. The record shows the requisite number of signers having the requisite qualifications required by the law as it existed at the time the proceeding was commenced to give the commissioner jurisdiction. The commissioner, after receiving the application, proceeded to make his first order of determination, and to get releases of right of way from the parties through whose lands the ditch was to run, before the law of 1895 became operative. This law does not purport to be the enactment of a general drain law that shall take the place of the old law, but simply amends a few sections of the old law to remedy some defects found therein. It left section 1740h9, which provides, "Drains for which application has been made *** under any provision of law heretofore may be laid *** under the provisions of this act," and section 1740i5, "saving all acts done and all rights at the time this act takes effect and any proceeding had or begun may be carried forward and completed thereunder the same as they might have been done had this act not been passed," untouched. It is impossible to read the law of 1885, with the amendments since made thereto, without coming to the conclusion that it was the intention of the legislature that drain proceedings which had been commenced were not to fail because of the amendments, but were to be carried forward to completion, subject to the provisions of the law as amended, so far as applicable. In the case of
City of Detroit v. Chapin, supra, the act passed in 1895 did not purport to be an amendment of the law as it existed at that time, but was an entirely new law, covering the entire subject of taking private property for the use and benefit of the public, and, as stated in the opinion, the act is materially different from the one repealed by it. We think the case comes within the principle announced in Merkle v. Bennington Tp., 68 Mich. 133, 35 N.W. 846; Davenport v. Auditor General, 70 Mich. 192, 38 N.W. 211; Alexander v. City of Big Rapids, 70 Mich. 224, 38 N.W. 227; Moore v. Kenockee Tp., 75 Mich. 332, 42 N.W. 944; Dennison v. Allen, 106 Mich. 295, 64 N.W. 38. The last-named case is directly in point.
It is urged that where a drain goes through or into more that one township the application to establish the drain must be signed by not less than five freeholders of each township where such drain is situated, or the lands to be drained thereby are situated, one or more of whom shall be owners of land liable to be assessed in each of said townships. The statute does not so read. Section 1740b5 provides that the petition shall be "signed by not less than five freeholders of the town or townships in which such drain or the lands to be drained thereby and to be assessed therefor may be situated, one or more of whom shall be owners of lands liable to be assessed for the benefits," etc. If the legislature had intended that the petition must be signed by five freeholders of each township, it would have been easy for it to have said so. It is said the description of the drain in the application is defective. The section of the statute just referred to provides that the application shall "give a general description of the beginning of the route and the termination thereof." We think the application in that respect was sufficient. Kinnie v Bare, 68 Mich. 625, 36 N.W. 672; Id., 80 Mich. 345, 45 N.W. 345. The commissioner divided the drain into five sections, each of which was let separately. One of these sections was 15 miles long, and it is claimed that the commissioner violated the law in establishing so long a section. The same question was raised in the recent case of Smith v. Carlow, in which an opinion was handed down, at this term of court, and was decided against the position here taken by the plaintiff. It is said, too, that this work, because of its magnitude, is not a drain, within the meaning of the drain law, but is an internal improvement forbidden by the constitution. The same question was raised in Smith v. Carlow, supra, and was there decided against the contention of plaintiff. See Hall v. Slaybaugh, 69 Mich. 484, 37 N.W. 545; Gillett v. McLaughlin, 69 Mich. 547, 37 N.W. 551. In the notice of letting the contract the commissioner gave notice that persons desiring to bid on the 15-mile section must deposit with their bid a certified check for $1,000 as a guaranty that the person bidding would enter into a contract, which check should be forfeited to the drain fund if the person to whom the contract was awarded failed to enter into the contract. This is said to be error. Section 1740e provides: "The commissioner shall thereupon proceed to receive bids and let jobs for the construction of the sections, and make contracts with the...
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