International Salt Co. v. Herrick, 59

• Decision Date: 18 July 1962
• Docket Number: No. 59,59
• Citation: 116 N.W.2d 328,367 Mich. 160
• Parties: INTERNATIONAL SALT COMPANY, a New Jersey Corporation, Plaintiff and Appellant, v. Henry V. HERRICK, Wayne County Drain Commissioner, Defendant and Appellee. *
• Court: Michigan Supreme Court

Page 328

116 N.W.2d 328

367 Mich. 160

INTERNATIONAL SALT COMPANY, a New Jersey Corporation Plaintiff and Appellant, v. Henry V. HERRICK, Wayne County Drain Commissioner, Defendant and Appellee. ^*

No. 59.

Supreme Court of Michigan.

July 18, 1962.

Alexander P. Leete, Detroit, for plaintiff and appellant.

Samuel H. Olsen, Pros. Atty. for Wayne County, Aloysius J. Suchy, David E. Flayer and William F. Bledsoe, Asst. Pros. Attys., Detroit, for defendant and appellee, Henry V. Herrick, Wayne County Drain Commissioner.

Before the Entire Bench.

CARR, Chief Justice.

This case involves the validity of an assessment levied in proceedings under the Michigan drain code of 1956 ¹ for the cleaning out, relocating, widening, deepening, straightening and extending of a Wayne county drain. Said drain, known as the Sexton-Kilfoil drain, and the drainage district embracing property assessed for the construction thereof, was established, as the record indicates, 'many years ago.' It lies in the townships of Romulus, Ecorse and Taylor, and the cities of Lincoln Park, Allen Park, Wyandotte and Ecorse.

Following the filing of a petition for the cleaning out and extending of the drain the defendant commissioner proceeded pursuant to the drain law, and endeavored to comply with the requirements thereof. Following the final order of determination and the apportionment of benefits, he fixed the 1st of June, 1960, as the time for receiving bids for the doing of the work and for a review of the apportionment of benefits. The procedure with reference to the giving of notice of a hearing of such character is set forth in section 154 of the drain code as last amended by P.A.1957, No. 61 (Stat.Ann.1960 Rev. § 11.1154). Insofar as material in the instant controversy said section reads as follows:

'The commissioner shall give notice for the receiving of bids for the construction of such drain and also for the holding of a public meeting, at which a review will be had of the apportionment of benefits made as aforesaid. Such notice shall specify the time and place of receiving bids, and the time and place of the meeting for review of apportionment, which shall be not less than 5 nor more than 30 days after the date set for receiving bids. Such notice shall be given by publication at least 2 insertions in some newspaper published and of general circulation in the county if there is one, the first publication to be at least 10 days before the date set for receiving bids, and by posting in 5 conspicuous and public places in each city, village and township where the district is located, within the limits of said district, at least 10 days before the date set for receiving bids. The drain commissioner also shall send notice by first class mail of the time and place of such meeting, at least 10 days before the date thereof, to each person whose name appears upon the last city or township tax assessment roll as owning land within the special assessment district, at the address shown on such roll, and if no address appears thereon, then no notice need be mailed to such person. The drain commissioner shall make an affidavit of such mailing and shall recite therein that the persons to whom such notice was mailed, constitute all of the persons whose names and addresses appear upon such tax rolls as owning land within the particular special assessment district, and such affidavit shall be conclusive proof that notice was mailed to each person to whom notice is required to be mailed by the terms of this section. The failure to send or receive any such notice by mail shall not constitute a jurisdictional defect invalidating a drain proceeding and/or tax, if notice shall have been given by publication and posting as provided in this section.'

Plaintiff herein is the owner of 69.791 acres of land in Romulus township, against which an assessment for the contemplated project was made in the sum of $11,495. Of such parcel 58.64 acres were included in the original assessment district. It is a matter of inference from the record that the assessment here involved was based on the theory of additional benefits to the property previously assessed. Plaintiff instituted the present suit under date of September 1, 1960. It alleged in its bill of complaint that its name appeared on the Romulus township tax assessment roll as owner of the land in question and that its address was given as 12841 Sanders Avenue, Detroit, the principal office of plaintiff within this State.

Plaintiff alleged further that it received no notice from defendant, or otherwise, of the review of the apportionment of benefits on June 1, 1960, that it observed no published or posted notice of such hearing, and that it learned for the first time on August 4, 1960, that its land had been included in the Sexton-Kilfoil assessment district. Plaintiff's pleading further alleged that the project did not in any way benefit its property, and that for such reason the tax was improperly assessed. Relief was sought on the ground that the assessment of the tax without notice constituted a violation of article 2, § 16, of the Michigan Constitution and of the 1st section of the 14th amendment of the Constitution of the United States. Plaintiff asked that the assessment against its property be set aside or that it be granted, in the alternative, suitable equitable relief. On behalf of defendant answer was filed asserting in substance that he had proceeded in accordance with the drain code, that due notice of the hearing on the apportionment of benefits was mailed to plaintiff, that such notice was duly published and posted as required by the statute, and that plaintiff was not entitled to the equitable relief sought.

Following hearing in circuit court the trial judge upheld in all respects the validity of pertinent provisions of the drain code. With reference to factual issues he determined that plaintiff did not receive notice of the hearing on apportionment of benefits, and that the proofs did not show the actual mailing of a notice to plaintiff at its proper address. He concluded, however, that as far as possible the requirements of the statute had been followed by the drain commissioner. The trial judge declined to consider the question whether the property of plaintiff would be benefited by the project, suggesting that in order to present such question plaintiff should pay the assessment under protest and bring appropriate action to recover. No appeal has been taken from such ruling. In accordance with the opinion rendered a decree was entered dismissing the bill of complaint. From such decree plaintiff has appealed.

Counsel for the respective parties are not altogether in accord as to the questions involved. Counsel for appellant states the issues before us as follows:

'I. Did plaintiff have notice by first class mail as required by Section 154 of the Drain Code of 1956, as amended, of the public meeting at which a review will be had for the apportionment of benefits, to determine a special drain tax assessed against plaintiff's property?

'II. In the absence of notice by mail, did the publication and posting of such notice, in accordance with the provisions of Section 154 of the Drain Code of 1956, as amended, meet the requirements of due process under the Michigan Constitution and Article XIV of the Amendments to the Constitution of the United States of America?'

Counsel for defendant state what they consider the question involved is in the following language:

'Do the provisions of Section 154 of the Drain Code, C.L.1948, sec. 280.154, M.S.A. 11.1154, relating to notice to landowners of the date for receiving bids for the construction of a drain and for the holding of a public meeting for review of apportionment of benefits, meet the requirements of the 'Due Process Clause' of the Fourteenth Amendment of the Constitution of the United States, and Article II, Sec. 16 of the Michigan Constitution?'

It is, we think, apparent that constitutional issues were considered in circuit court. We note that in their briefs counsel representing the respective parties stress certain decisions of the United States supreme court relating to due process of law in the giving of notice to interested parties of proceedings affecting property rights and interests. Directly involved are the provisions of section 154 of the drain code, above quoted, with reference to the conclusive nature of the affidavit of mailing required to be made by the drain commissioner, and the effect of failure to send notice by mail as required by prior specific provisions of the section.

The legislature in the enactment of the drain code and of amendments thereto clearly imposed the requirement that in a situation of the character here involved notice should be mailed to each property owner whose name appeared on the assessment roll together with his address. In addition thereto publication in newspapers, and by posting, was required. In a case of this character we think that statutory provision for resort to the mails is proper and permissible as constituting due process. The supreme court of the United States commented on such method of service in Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865. Involved there was the sufficiency of notice to beneficiaries under judicial settlement of accounts by the trustee of a common trust fund established under the banking laws of the State of New York. The number of persons entitled to service was, as in the case at bar, numerous. In discussing the question at issue the basic principle applicable was stated as follows:

'An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. Milliken v. Meyer, 311 U.S. 457, 61 S.Ct....