Eyde v. Charter Tp. of Lansing

• Decision Date: 15 January 1985
• Docket Number: 68112,No. 3,Docket Nos. 67135,3
• Citation: 420 Mich. 287,363 N.W.2d 277
• Parties: Patrick EYDE and Michael Eyde, Plaintiffs-Appellants, v. CHARTER TOWNSHIP OF LANSING, Drainage Board for the Remy-Chandler Intercounty Drain, and the Augmented Drainage Board for the Remy-Chandler Intercounty Drain, Defendants-Appellees. Calendar420 Mich. 287, 363 N.W.2d 277
• Court: Michigan Supreme Court

Page 277

363 N.W.2d 277

Patrick EYDE and Michael Eyde, Plaintiffs-Appellants, v. CHARTER TOWNSHIP OF LANSING, Drainage Board for the Remy-Chandler Intercounty Drain, and the Augmented Drainage Board for the Remy-Chandler Intercounty Drain Defendants-Appellees.

Docket Nos. 67135, 68112.

Calendar No. 3.

420 Mich. 287, 363 N.W.2d 277

Supreme Court of Michigan.

Argued Oct. 4, 1983.

Decided Dec. 28, 1984.

Released Jan. 15, 1985.

William D. McCririe, III, Lansing, for plaintiffs-appellants.

Dickinson, Wright, Moon, Van Dusen & Freeman by Joseph A. Fink and John M. Lichtenberg, Lansing, for respondents-appellees The Drainage Board for the Remy-Chandler Intercounty Drain and The Augmented Drainage Board for the Remy-Chandler Intercounty Drain.

Thrun, Maatsch & Nordberg, P.C. by Patrick J. Berardo, Lansing, for Charter Township of Lansing.

RYAN, Justice.

On February 15, 1979, Patrick and Michael Eyde, owners of land in Lansing Township, filed a complaint in the Ingham Circuit Court alleging, in Count I, that numerous specified procedural defects associated with the establishment of the Remy-Chandler Drainage District, and with apportioning the cost of the Remy-Chandler Intercounty Drain among the affected municipalities, render both the drainage district and the assessments void. Count I of the complaint also challenged the constitutionality of Sec. 536 of the Drain Code, M.C.L. Sec. 280.536; M.S.A. Sec. 11.1536. ¹ In Count II of their complaint, the Eydes alleged that the special assessment imposed on their property by Lansing Township, as part of that township's efforts to meet its proportionate financial obligation to the Remy-Chandler Drainage District, was invalid because of various defects in the imposition of the assessment and because their property was not benefited by the drain. Count II of the complaint also challenged the constitutionality of Sec. 539 of the Drain Code, M.C.L. Sec. 280.539; M.S.A. Sec. 11.1539. ² The complaint named as defendants Lansing Township and both the Drainage Board and the Augmented Drainage Board for the Remy-Chandler Intercounty Drain. ³

On February 23, 1979, a petition virtually identical to the above-described complaint was filed by the Eydes in the Tax Tribunal.

On March 7, 1979, Lansing Township filed motions for summary and accelerated judgment in the circuit court. The circuit court granted the township's motion for summary judgment as to Count I of the plaintiffs' complaint, finding that it stated no cause of action against the township and "is more properly assertable against defendants drainage boards." The circuit court also granted the township's motion for accelerated judgment as to all of Count II, except for the constitutional challenge to Sec. 539 of the Drain Code, on the ground that the subject matter of Count II, except for the Sec. 539 challenge, was within the exclusive jurisdiction of the Tax Tribunal. The circuit court, finding that the challenge to Sec. 539 presented no question of fact and concluding that that provision was indeed constitutional, granted the township's motion for summary judgment on that issue. ⁴ The Court of Appeals affirmed the decisions of the circuit court. Eyde v. Lansing Twp., 105 Mich.App. 370, 306 N.W.2d 797 (1981).

Meanwhile, on February 21, 1980, the Tax Tribunal issued an order sua sponte dismissing petition as to respondent Drainage Board and Augmented Drainage Board and denying petitioners' motion to amend on the ground that, inter alia, the Eydes' appeal was "untimely." ⁵ The Court of Appeals affirmed the decision of the Tax Tribunal. Eyde v. Lansing Twp., 109 Mich.App. 641, 311 N.W.2d 438 (1981).

I

Lansing Township decided to raise the money needed to pay for its portion of the Remy-Chandler Drain by imposing special assessments on those properties within its boundaries which it has determined will be especially benefited by the drain. In Wikman v. Novi, 413 Mich. 617, 630-631, 322 N.W.2d 103 (1982), this Court held that challenges to special assessments of this type are within the exclusive jurisdiction of the Tax Tribunal. Because Count II of the Eydes' complaint challenges the assessment levied by the township against the Eydes' property, the circuit court correctly granted defendants' motion for accelerated judgment on all but that portion of Count II which challenges the constitutionality of Sec. 539 of the Drain Code.

The Tax Tribunal does not have the authority to invalidate acts of the Legislature. Const. 1963, art. 3, Sec. 2, Wikman v. Novi, 413 Mich. 617, 646-647, 322 N.W.2d 103 (1982). As a result, the circuit court did not err in retaining jurisdiction over that portion of the Eydes' complaint which challenged the constitutionality of Sec. 539 of the Drain Code. Since the Eydes' challenge to Sec. 539 presents purely questions of law and presents no genuine issue concerning any material fact, the trial court did not err in deciding the constitutionality of that provision on a motion for summary judgment.

As for the substance of their attack on the constitutionality of Sec. 539, the Eydes asserted in their complaint:

"(F) That Sec. 539 of the Drain Code of 1956 is unconstitutional and deprives the Eydes of their due process rights under the Michigan and United States Constitutions because it provides for the preparation of the special assessment roll prior to the hearing of objections on that roll, but that it does not provide for any alteration or correction of the special assessment roll after the objection hearing."

And argued to this Court:

"This section of the Drain Code is simply an empty right to attend a Township Board meeting and object to the Special Assessment Roll which in this case Lansing Township has little it can do as it has already been apportioned and assessed the tax. The Drain Code provides for no alteration or correction of the Roll after the objection hearing has been held."

The Court of Appeals found that although there is no language in Sec. 539 providing for the alteration or correction of the special assessment roll after an objection hearing, that deficiency is cured by Sec. 4 of the township special assessment act, M.C.L. Sec. 41.724; M.S.A. Sec. 5.2770(54), which provides, in pertinent part:

"At the time of such hearing, or any adjournment thereof which may be without further notice, the township board shall hear any objections to the petition, if a petition is required, to the improvement and to the special assessment district, and may revise, correct, amend, or change the plans, estimate of cost or special assessment district."

The Court of Appeals concluded that "[s]ince the opportunity for effective objection is provided, * * * it is immaterial that it is contained in a separate statute." 105 Mich.App. 379, 306 N.W.2d 797. Since Sec. 539 provides that special assessments imposed pursuant to it shall be made under the statutory or charter provisions governing special assessments in the public corporation to the extent applicable, we find no error in the Court of Appeals conclusion.

Finally, because Count I of the Eydes' complaint does not state a cause of action against Lansing Township but, as the trial court said, states a claim more properly assertable against the defendant drainage boards, we find no error in the trial court's grant of summary judgment on that point.

II

Section 31 of the Tax Tribunal Act, M.C.L. Sec. 205.731; M.S.A. Sec. 7.650(31), provides that the Tax Tribunal shall have exclusive jurisdiction over special assessments arising under "the property tax laws." As the Court of Appeals determined, the final order of determination made by the Augmented Drainage Board pursuant to Sec. 519 of the Drain Code, M.C.L. Sec. 280.519; M.S.A. Sec. 11.1519, and the final order of apportionment made by the Drainage Board pursuant to Secs. 520 and 521 of the Drain Code, M.C.L. Sec. 280.520; M.S.A. Sec. 11.1520, M.C.L. Sec. 280.521; M.S.A. Sec. 11.1521, create an assessment on a public body and not an assessment levied against property. Accord, Wikman, supra, pp. 633-636, 322 N.W.2d 103. As the Court of Appeals noted,

"The public corporation is free to meet the levy in any legal way it chooses. MCL 280.526; MSA 11.1526. The public corporation--which in this instance is the township--could pay the assessment out of any funds available to the corporation--sales tax funds, general funds, ad valorem taxes, special assessments, or any combination thereof." 109 Mich.App. 641, 646, 311 N.W.2d 438.

Because the Eydes' claims against the drainage boards are outside the subject matter jurisdiction of the Tax Tribunal, the Tax Tribunal correctly dismissed those claims. Because of the result we reach, there is no need to decide the merits of the Eydes' challenge to Sec. 536 of the Drain Code.

The judgments of the Court of Appeals, in both cases, are affirmed.

WILLIAMS, C.J., and BOYLE and BRICKLEY, JJ., concur.

CAVANAGH, J., not participating.

LEVIN, Justice (dissenting).

The Eydes commenced actions in the circuit court and the Tax Tribunal alleging that the township excessively assessed their property, that the drainage boards failed to follow certain organizational and operational procedures, and that the notice provisions of the Drain Code were violative of the Due Process Clause.

The opinion of the Court affirms decisions of the Court of Appeals ¹ holding that the circuit court action against the township alleging an excessive assessment can be maintained only in the Tax Tribunal and that the challenge to the operation of the boards can be pursued only in the circuit court. This Court finds no violation of the constitution.

Because the Drain Code is not a property tax law and thus special drainage assessments are not levied under a "property tax law," ² we would hold that the Eydes may maintain an action against the township in the circuit court challenging the assessment against their property. We also conclude that the notice provided did...