Keefe v. Drain Com'r of Oakland Cnty., No. 63.

CourtSupreme Court of Michigan
Writing for the CourtBUSHNELL
Citation306 Mich. 503,11 N.W.2d 220
PartiesKEEFE et al. v. DRAIN COM'R OF OAKLAND COUNTY et al.
Decision Date11 October 1943
Docket NumberNo. 63.

306 Mich. 503
11 N.W.2d 220

KEEFE et al.
v.
DRAIN COM'R OF OAKLAND COUNTY et al.

No. 63.

Supreme Court of Michigan.

Oct. 11, 1943.


Declaratory judgment action by Kenneth M. Keefe and another against Earl L. Clark, Drain Commissioner of Oakland County, and Board of Supervisors of Oakland County, to have determined whether defendant Drain Commissioner and Board of Supervisors were obligated by statute to levy an additional assessment to cover the deficiency in a drain tax. From an adverse judgment, the petitioners appeal.

Declaratory judgment modified and affirmed, and the cause remanded for entry of judgment in conformity with opinion.

Appeal from Circuit Court, Oakland County; George B. hartrick, judge.

[11 N.W.2d 221]

Before the Entire Bench.

Voorhies, Long, Ryan & McNair and Dykema, Jones & Wheat, all of Detroit, for appellants.


Harry I. Merritt, Corp. Counsel, of Pontiac, for appellees.

William C. Hudson, of Royal Oak, for intervening appellee City of Royal Oak.

BUSHNELL, Justice.

Petitioners Keefe and Bradford have appealed from a declaratory judgment which determined that respondents, Drain Commissioner and Board of Supervisors of Oakland county, are not obligated, by § 18, chapter X of Act No. 316, Pub. Acts 1923, as amended by Act No. 331, Pub. Acts 1927, (Comp.Laws 1929, § 4940) and Act No. 129, Pub. Acts 1939, Comp.Laws Supp. 1940, § 4940 (Stat.Ann. 1942 Cum.Supp. § 11.104), to levy an additional assessment to cover the deficiency in a drain tax. Petitioners are the owners of bonds, which are a part of an original issue in 1927, of $300,000, to finance the construction of the East Clawson storm sewer drain.

This improvement was held to be a legal drain and the assessment, therefore, valid in Village of Clawson v. Van Wagoner, 268 Mich. 148, 255 N.W. 743. The original assessment roll was payable in annual installments from 1928 to 1937, inclusive, and was levied as follows: 77.5 per cent. against lands in the drainage district; 3.5 per cent. against the county at large; 2.5 per cent. against Township of Troy; 6.5 per cent. against the Township of Royal Oak; and 10 per cent. against the Village of Clawson. All of the bonds had matured by May 1, 1938, and as of December 31, 1941, $33,440 was due for interest and $223,000 for principal.

The assessment installments were levied for four years from 1927 to 1931, and then discontinued. In 1937, in contemplation of a refunding arrangement, a supplemental roll was prepared spreading the remaining six installments of principal over a period extending from 1937 to 1961, and the accumulated interest over a ten year period. The failure to levy after 1931 was due to a large tax delinquency. During 1939 and 1940 about 47 per cent. of the lands in the district were bid in by the State at tax sales. How much of these lands have since been returned to private ownership is not disclosed by the record. Before negotiations between the bondholders and the drain commissioner were consummated, the case of Municipal Investors Association v. City of Birmingham, 298 Mich. 314, 299 N.W. 90, was decided on June 30, 1941. Respondents contended that this decision was authority for the proposition that lands in the drainage district which passed through a ‘scavenger sale’ became exempt from any deficiency assessment for unpaid drain taxes. The parties held the refunding plan in abeyance pending decision of the Supreme Court of the United States in the Birmingham appeal, which decision was rendered on April 27, 1942, and reported in 316 U.S. 153, 62 S.Ct. 975, 86 L.Ed. 1341. This case was commenced June 25, 1942.

Petitioners in the instant case argue that the action of the Supreme Court of the United States in the Birmingham case was inconclusive of their rights, and that it became necessary for them to resort to declaratory judgment proceedings in the state courts. The circuit judge held that our decision in the Birmingham case was conclusive of the issues involved, and that lands sold by the State Land Office Board, under the provisions of Act No. 155, Pub. Acts 1937, Mason's Cum.Supp. 1940, § 3723-1 et seq. (Stat.Ann. § 7.951 et seq.), were not subject to a deficiency assessment, and since a large portion of the lands in the district were lost to the possibility of reassessment, a deficiency assessment upon the remaining lands which had not been sold for delinquent taxes was ‘contrary to all the established principles of uniformity and equality in assessment as guaranteed by the Constitution,’ in that such an assessment ‘would be tax having no relationship to benefit.’

Appellants now argue that lands which have been sold to the State for delinquent taxes are not exempt from the deficiency assessment after their resale by the State, and that, if the act in question provides for such an exemption, it is in violation of section 9 of article X of the Constitution of 1908, which reads: ‘The power of taxation shall never be surrendered or suspended by any grant or contract to which the state or any municipal corporation shall be a party.’ They also contend that, if the act is construed to exempt such lands from deficiency assessments, it does so in violation of the impairment of obligation clauses of that State and Federal Constitutions. They further contend that, even if such

[11 N.W.2d 222]

lands are exempt, the remaining lands and the municipalities against which the original assessment was spread at large are still subject to an additional...

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21 practice notes
  • Schreiber v. Cook Cnty., No. 28261.
    • United States
    • Supreme Court of Illinois
    • November 22, 1944
    ...are not injuriously affected because they receive the maximum benefit, under the circumstances. Keefe v. Oakland County Drain Com'r, 306 Mich. 503 11 N.W.2d 220;Baker v. State Land Office Board, 294 Mich. 587, 293 N.W. 763;San Bernardino County v. Way, 18 Cal.2d 647, 117 P.2d 354. The legis......
  • Ziegler v. Witherspoon, No. 59
    • United States
    • Supreme Court of Michigan
    • October 1, 1951
    ...issuance of the bonds. The defendant relies upon Article X, § 9 of the Constitution of 1908; Keefe v. Oakland County Drain Commissioner, 306 Mich. 503, 11 N.W.2d 220; Home Building and Loan Association v. Blaisdell, 290 U.S. 398, 54 Page 327 S.Ct. 231, 78 L.Ed. 413; and Harsha v. City of De......
  • Young v. Thendara, Inc., No. 21
    • United States
    • Supreme Court of Michigan
    • June 5, 1950
    ...would constitute an incumbrance, and is, therefore, cancelled.' Keefe v. Oakland County Drain Commissioner, 308 Mich. 503, 510, 11 N.W.2d 220, 222. 'The deed given by defendants to plaintiffs described the premises and covenanted 'that they are [328 Mich. 53] free from all incumbrances what......
  • Van Slooten v. Larsen, Docket No. 77-1991
    • United States
    • Court of Appeal of Michigan (US)
    • October 17, 1978
    ...Funeral System Ass'n v. Commissioner of Insurance, 331 Mich. 185, 195, 49 N.W.2d 131 (1951); Keefe v. Oakland County Drain Commissioner, 306 Mich. 503, 512-513, 11 N.W.2d 220 (1943), Aff'd 332 U.S. 393, 64 S.Ct. 1072, 88 L.Ed. 1346 In another case involving a challenge to a statute which al......
  • Request a trial to view additional results
21 cases
  • Schreiber v. Cook Cnty., No. 28261.
    • United States
    • Supreme Court of Illinois
    • November 22, 1944
    ...are not injuriously affected because they receive the maximum benefit, under the circumstances. Keefe v. Oakland County Drain Com'r, 306 Mich. 503 11 N.W.2d 220;Baker v. State Land Office Board, 294 Mich. 587, 293 N.W. 763;San Bernardino County v. Way, 18 Cal.2d 647, 117 P.2d 354. The legis......
  • Ziegler v. Witherspoon, No. 59
    • United States
    • Supreme Court of Michigan
    • October 1, 1951
    ...issuance of the bonds. The defendant relies upon Article X, § 9 of the Constitution of 1908; Keefe v. Oakland County Drain Commissioner, 306 Mich. 503, 11 N.W.2d 220; Home Building and Loan Association v. Blaisdell, 290 U.S. 398, 54 Page 327 S.Ct. 231, 78 L.Ed. 413; and Harsha v. City of De......
  • Young v. Thendara, Inc., No. 21
    • United States
    • Supreme Court of Michigan
    • June 5, 1950
    ...would constitute an incumbrance, and is, therefore, cancelled.' Keefe v. Oakland County Drain Commissioner, 308 Mich. 503, 510, 11 N.W.2d 220, 222. 'The deed given by defendants to plaintiffs described the premises and covenanted 'that they are [328 Mich. 53] free from all incumbrances what......
  • Van Slooten v. Larsen, Docket No. 77-1991
    • United States
    • Court of Appeal of Michigan (US)
    • October 17, 1978
    ...Funeral System Ass'n v. Commissioner of Insurance, 331 Mich. 185, 195, 49 N.W.2d 131 (1951); Keefe v. Oakland County Drain Commissioner, 306 Mich. 503, 512-513, 11 N.W.2d 220 (1943), Aff'd 332 U.S. 393, 64 S.Ct. 1072, 88 L.Ed. 1346 In another case involving a challenge to a statute which al......
  • Request a trial to view additional results

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