Fuller v. Union Lake Land Co.

• Citation: 214 N.W. 412,239 Mich. 437
• Decision Date: 24 June 1927
• Docket Number: No. 22.,22.
• Parties: FULLER v. UNION LAKE LAND CO.
• Court: Supreme Court of Michigan

239 Mich. 437

214 N.W. 412

FULLER

v.UNION LAKE LAND CO.

No. 22.

Supreme Court of Michigan.

June 24, 1927.

Appeal from Circuit Court, Oakland County, in Chancery; Frank L. Covert, Judge.

In the matter of the petition of Oramel B. Fuller for sale of lands for delinquent taxes, objected to by the Union Lake Land Company. Decree for petitioner, and objector appeals. Affirmed.

Argued before the Entire Bench.

J. A. & C. C. Tillson, of Pontiac, for appellant.

James H. Lynch, of Pontiac, for Board of County Road Commissioners and Auditor General.

FELLOWS, J.

On August 26, 1919, proceedings were instituted under the provisions of the Covert Act (Comp. Laws 1915, §§ 4671-4745) for the improvement of a highway in Oakland county. The Union Lake Land Company joined in instituting such proceedings. The proceedings were completed in 1920. No application was made for certiorari to review them by the company, or by any one else, so far as the record discloses. Three hundred twenty-two lots owned by the company were assessed for benefits. In 1926 the company appeared in the proceeding instituted by the auditor general pursuant to the statute to enforce payment of delinquent taxes and assessments and objected to the validity of the assessment on these lots. The principal objection was that proper notice was not given. A notice in proper form and not objected to was posted, as required by section 4680, but the published notice was defective in not fixing the time of hearing. The trial judge was of the opinion that this objection should have been made by certiorari and could not be raised some six years later in this proceeding after the work had all been completed, and, relying on sections 4736, 4737, C. L. 1915, overruled this objection to the assessment. This holding was in consonance with the holdings of this court (McDermott v. Kent County Road Commissioners, 199 Mich. 613, 165 N. W. 685;Cummings v. Garner, 213 Mich. 408, 182 N. W. 9;Heliker v. Oakland County, 216 Mich. 595, 185 N. W. 842), in which cases we followed the rule announced in numerous drain cases involving similar provisions. In the McDermott Case, Mr. Justice Moore, speaking for the court, said:

‘If plaintiffs were of the opinion that a fatal omission was then made, they should have commenced certiorari and the controversy could have been quickly ended. We all know the value of time in road building. The season in which work can economically be carried on is very short. The Legislature, doubtless, had this fact in mind when it provided a speedy remedy for any irregularities. The plaintiffs should have pursued that remedy. Not having done so, the proceedings must be regarded as regular, ‘and its legality shall not thereafter be questioned in any suit at law or in equity.’'

These decisions are not applicable where constitutional rights are invaded. But here we do not perceive that the constitutional rights of the objector have been invaded. One of the notices given is admittedly a valid notice. The objector's constitutional rights did not entitle it to two notices. Had no notice been given, another question would be presented. Hinkley v. Bishopp, 152 Mich. 256, 114 N. W. 676. It would have been competent for the Legislature to provide...