Kinner v. Spencer

• Decision Date: 02 March 1932
• Docket Number: Nos. 11-13.,s. 11-13.
• Citation: 241 N.W. 240,257 Mich. 142
• Parties: KINNER et al. v. SPENCER, Drain Com'r, et al. HOUSEMAN-SPITZLEY CORPORATION v. SAME. VILLAGE OF OAK PARK v. SAME.
• Court: Michigan Supreme Court

257 Mich. 142

241 N.W. 240

KINNER et al.

v.SPENCER, Drain Com'r, et al.

HOUSEMAN-SPITZLEY CORPORATION

v.SAME.

VILLAGE OF OAK PARK

v.SAME.

Nos. 11-13.

Supreme Court of Michigan.

March 2, 1932.

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

Separate suits by Leonard B. Kinner and others, by the Houseman-Spitzley Corporation, and by the Village of Oak Park, against Arthur W. Spencer, Drain Commissioner of Oakland County, and others. The cases were consolidated for trial. From the decrees, the defendants appeal, and Leonard B. Kinner and others cross-appeal.

Affirmed.

Argued before CLARK, C. J., and McDONALD, POTTER, SHARPE, NORTH, FEAD, WIEST, and BUTZEL, JJ.Wiley, Streeter, Smith & Ford, of Detroit, for appellees Kinner and others.

Yerkes, Goddard, McClintock & Shreve, of Detroit (Frank W. Donovan, of Grosse Pointe, of counsel), for appellee Houseman-Spitzley Corporation.

Miller, Canfield, Paddock & Stone, of Detroit, amici curiae.

SHARPE, J.

These cases were consolidated when heard by the trial court. In all of them the plaintiffs seek to enjoin the collection of taxes assessed to pay for the construction of what is known as the ‘Southfield Storm Sewer Drain.’ The validity of the proceedings taken to establish this drain was before this court in Clinton v. Spencer, 250 Mich. 135, 229 N. W. 609, 612. In a lengthy opinion, written by Mr. Justice Butzel, it was said: ‘The first question that confronts us is whether the drain law of 1923 [Act No. 316, Pub. Acts 1923], as amended in 1925 (Pub. Acts 1925, Nos. 288, 365) and 1927 (Pub. Acts 1927, No. 331), affords any authority for building an underground sewer. The original application filed was for the purpose of ‘affording a sewer,’ not a drain. Irrespective of the terminology used, the structure that was contracted for and was being built was a city sewer. * * * There was no question but that it was to be a sewer which would accomplish both the purpose of a drain and a city sewer. The statute, however, provides only for drains, and not for city sewers. * * * We, however, find no authority whatsoever for the building of a city sewer under the drain law, and we believe that there is a distinction between a drain and a sewer. There was no provision for a sewer in the law under which these proceedings have been taken. * * * We do not believe, however, that the drain law in Michigan under which the defendants were acting is sufficiently broad to include sewers.'

That the petition as filed conferred no jurisdiction upon the commissioner to take action, and that all subsequent proceedings were without authority and void could not be more clearly stated.

Counsel for the defendants call attention to the concluding language of the opinion, which reads as follows: ‘Inasmuch as plaintiffs never received any notice of these proceedings and are therefore not...