Connor v. Herrick
| Decision Date | 31 July 1957 |
| Docket Number | No. 153,153 |
| Citation | 84 N.W.2d 427,349 Mich. 201 |
| Parties | Edward CONNOR and Charles F. Edgecomb, members of the Drainage Board for the Black Marsh Drain, and the Michigan Sewer Construction Company, a Michigan Corporation, Plaintiffs, v. Henry V. HERRICK, Chairman of the Drainage Board for the Black Marsh Drain, Defendant. Motion |
| Court | Michigan Supreme Court |
Berry, Stevens & Moorman, Detroit (Claude H. Stevens, Detroit, of counsel), for plaintiffs.
Gerald K. O'Brien, Pros. Atty. for the County of Wayne, and Hobart Taylor, Jr., Asst. Pros. Atty., Detroit, for defendant.
Before the Entire Bench.
This proceeding involves the validity of provisions of chapter 20 of the drain code of 1956 (P.A.1956, No. 40). Said chapter relates to the construction and improvement of intracounty drains deemed necessary for the public health, where the cost is to be assessed wholly against public corporations. It is in substance a re-enactment of chapter 18A 1 of the prior drain code, added thereto by P.A.1951, No. 265. Provision is made in said chapter as re-enacted for the filing of a petition with the county drain commissioner by two or more public corporations subject to assessments to defray the cost of such project. A county drainage board, composed of the drain commissioner, the chairman of the county board of supervisors, and the chairman of the board of county auditors, is created by the statute. In the event that the county has no board of auditors the chairman of the finance committee of the board of supervisors acts as a member.
On the filing of a petition for the construction or improvement of a drain the county drain commissioner is required to call a meeting of the drainage board. Provision is made for the giving of notice and for a determination by the board as to the sufficiency of the petition, the practicability of the proposed project, and the public corporations to be assessed for the cost. A public hearing of objections to the project and to the assessment of the cost is required, with notice thereof by publication not less than 20 days prior to the date of hearing. Notice to each public corporation proposed to be assessed is directed, the notice to the State to be served on the State highway commissioner. Following such hearing the drainage board makes its final order of determination, specifying the public corporations to be assessed if it finds the petition sufficient and the project practicable. Other provisions of the chapter relate to the procuring of plans and specifications.
Public hearing on the approtionment of the cost of the drain, or improvement thereof, is required to be held, with due notice by publication in a newspaper and by registered mail to the public corporations proposed to be assessed. Proceedings in certiorari may be instituted within 20 days after the filing of the final order of determination or of the order of apportionment. Following the confirmation of such apportionment the chairman of the board, the drain commissioner of the county, is required to prepare a special assessment roll, based either on the estimated cost of the drain or the actual cost thereof if ascertained, against the several public corporations directed to be assessed. Such assessments may be ordered paid in annual installments, not exceeding 30. After the approval of the assessment roll the chairman of the drainage board is directed to certify to each public corporation assessed the total amount of such assessment with the number of installments and the rate of interest upon installments unpaid when due. Assessments against the State are certified to the State highway commissioner and paid from State highway funds. It is made the duty of tax levying officials of the public corporations assessed to levy sufficient taxes to pay the assessment installments and interest as the same become due.
The drainage board is empowered to issue bonds on behalf of the drainage district in anticipation of the collection of assessments, and to pledge the faith and credit of such district for the payment thereof. The manner of execution of said bonds is specified in the statute and the monies collected for the payment thereof are required to be kept in a separate bank account by the county treasurer. In the event that the original assessments are found to be insufficient to pay principal and interest on bonds, the drainage board is authorized to make additional assessments as may be found necessary. Other provisions of the chapter are designed to facilitate the accomplishment of the legislative purpose, but are not directly involved in this proceeding.
The pleadings filed in the instant proceeding disclose that there is presently existing in Wayne County an open drain designated as the 'Black Marsh Drain', located wholly within the City of Grosse Pointe Woods and serving said municipality and the adjacent City of Harper Woods, as well as certain State and county highways. Pursuant to chapter 18A of the prior drain code, above cited, said cities filed a petition with the county drain commissioner for the improvement of the drain in question by tiling it. It is conceded that the various proceedings required by the statute in force when the petition was filed, and by chapter 20 of the present drain code under which the project is being executed, have been duly taken. The estimated cost thereof, determined on a percentage basis, was apportioned by order of the drainage board as follows: State of Michigan--.861017%; County of Wayne--1.867492%; City of Grosse Pointe Woods--96.084779%; City of Harper Woods--1.186712%. It further appears that no review of the orders of the drainage board has been sought. Bids for the project were advertised for and received. The plaintiff Michigan Sewer Construction Company, being the lowest bidder, was awarded the contract, and the drainage board by resolution authorized and directed the chairman to execute said contract for and on behalf of the Black Marsh drainage district. The cost of the project as set forth in said proposed contract is the sum of $519,550.
Following action by the board, the chairman, by formal communication to it, refused to sign the contract because of certain questions that had been raised with reference to the validity of the assessment provisions of chapter 20 of the drain code. He pointed out as the basis for such refusal that the drain, if improved in accordance with the petition filed by the cities of Harper Woods and Grosse Pointe Woods, will serve only a part of each of said cities, and that, in consequence, the assessment at large against each of said cities, to be raised by a general ad valorem tax is unconstitutional because in violation of designated provisions of the Michigan Constitution, namely, Art. II, § 16; Art. VIII, §§ 20, 21, and 25; and Art. X, § 12. Upon such refusal the other members of the drainage board filed their petition in this Court asking on behalf of said board that an order issue requiring the defendant, the chairman of the board, to show cause why a peremptory writ of mandamus should not issue requiring him to proceed in accordance with the resolution directing that he execute the contract with the Michigan Sewer Construction Company.
On the filing of the petition this Court entered an order in accordance therewith, directing that the answer to the petition previously filed be considered as the answer to the order to show cause and that the controversy be submitted to the Court for final determination. Counsel for plaintiffs have filed a brief with reference to the objections raised by defendant in his letter to the drainage board, above mentioned, and the prosecuting attorney of Wayne County and two of his assistants have submitted a brief on behalf of the defendant, asserting in substance the correctness of his claims. The matter was argued orally before the Court by counsel on each side, and the city attorney of Grosse Pointe Woods, which is required by the order of apportionment to raise by ad valorem tax an amount in excess of 96% of the total cost of the project, has filed a memorandum expressing approval of the position of the plaintiffs and requesting the Court to grant the relief sought by them.
The County of Wayne has not formally intervened in the proceeding although, as above noted, the prosecuting attorney and his assistants are representing the defendant drain commissioner. Neither has there been a request for leave to intervene on behalf of the State. The cities that will be required to bear the greater part of the financial burden sought the improvement of the drain in question in the interests of public health. It must be assumed that the action of the municipalities was prompted by the belief that the substitution of tile for the open drain now existing was reasonably required for the protection of the public. The question now before this Court concerns the validity of the statute under which the parties are seeking to proceed. As in prior instances of like character, this Court concluded that it might properly assume jurisdiction of the controversy in the form presented. It is doubtless true that the constitutional questions at issue might have been raised in a different form of action, and perhaps with added parties. Under the situation actually existing, however, in view of the fact that the order to show cause was issued and that the Court has permitted the cause to be argued and submitted by the parties, the case should now be determined on its merits.
The constitutional provisions invoked by the defendant as the basis for his refusal to execute the contract approved by the drainage board have been involved in numerous prior decisions of this Court. Art. X, § 12, provides that:
'The credit of the state shall not be granted to, nor in aid of any person, association or corporation, public or private.'
The express limitation on the power of the State with reference to lending its...
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