People ex rel. Tireman v. Ruthruff

Citation40 Mich. 175
CourtSupreme Court of Michigan
Decision Date21 January 1879
PartiesPeople ex rel. Joseph Tireman v. William Ruthruff, Drain Commissioner, and George F. Higgins, Township Clerk of the Township of Greenfield

Submitted November 22, 1878

Certiorari. Submitted November 22, 1878. Decided January 21 1879. The facts are in the opinion.

Proceedings quashed.

Henry M. Cheever for plaintiff, cited some of the cases reviewed in the opinion, and People v. Comm'rs of Nankin, 14 Mich 528; Pegler v. Comm'rs of Grand Rapids, 34 Mich. 359; Brush v. Detroit, 32 Mich. 43.

Moore & Moore for respondents.

Graves, J. The other Justices concurred.

OPINION

Graves, J.

This is a certiorari to review proceedings taken in Greenfield, in Wayne county, under the township drain law to make a drain or water-course and impose the expense on certain land owners. An examination of the respective objections is uncalled for. The record discloses the same jurisdictional defect which the court has expressly held to be fatal in several cases, and the governing rules have been explained so often that repetition would be scarcely excusable.

The commissioner who officiated down to the time for taking steps to apportion the drain, a Mr. Carey, went out of office last April and was succeeded by the respondent, and the latter, when about to carry the proceedings further, was stopped by injunction.

The township clerk simply returns to the writ that he finds in his office no record in the proceedings in question, and that no papers relating to the subject are on file.

The return on the part of respondent consists first of a brief statement of his official connection with the case, and second, and chiefly of the statement of his predecessor, adopted as matter of return and covering such proceedings as were taken before the change of office.

It appears that there has never been in the records or on file or before either commissioner any evidence of service of notice of the hearing under the application except as to one of the several persons interested, and so far as appears the case still remains without such evidence. It does appear however upon the statement made by the ex-commissioner and included in respondent's return, that the former while in office made as he now considers due service of proper notice, and he assumes to explain his doings in that regard in such statement.

This representation called out by the proceeding to ascertain the validity or invalidity of the action under the drain law, and hence among other things whether there was proper evidence of service in the records, or before the officer, is the only evidence, or rather the only showing extant, that service was attempted.

And on this the counsel for respondent says: "The fact that he himself served the notices is a sufficient answer in our opinion to the relator's position, and having done so, he could and should take judicial notice of his own acts."

This position is directly contrary to repeated decisions of the court.

In the People v. Commissioners of Nankin, 14 Mich. 528, a highway case in 1866, it was ruled distinctly that notice of hearing is a jurisdictional prerequisite, and that the record must show affirmatively that lawful service of it has been given. This case has been constantly adhered to and has been cited in various cases of the same class, including those under the drain laws. See Van Auken v. Highway Comm'rs, 27 Mich. 414; Purdy v. Martin, 31 Mich. 455; Harbaugh v. Martin, 30 Mich. 234; Dupont v. Highway Comm'rs, 28 Mich. 362; Names v. Com'rs, 30 Mich. 490; Detroit Sharpshooters' Association v. Comm'rs, 34 Mich. 36; Platt v. Com'rs, 38 Mich. 247; Tefft v. Township Board, 38 Mich. 558; Dickinson v. Van Wormer, 39 Mich. 141; Lane v. Burnap, 39 Mich. 736; Taylor v. Burnap, 39 Mich. 739.

In Dupont's Case, it was considered that personal knowledge by the commissioner was not sufficient, and the court said: "The notice is in the nature of process, and it is indispensable that there be legal...

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3 cases
  • Petition of Boyd
    • United States
    • Supreme Court of Michigan
    • 6 Marzo 1952
    ...for writ of certiorari has been filed, plaintiffs cite Dupont v. Highway Commissioners, 28 Mich. 362, and People ex rel. Tireman v. Ruthruff, Drain Commissioner, 40 Mich. 175. In reply defendants cite the later decision of Ranney Refrigerator Co. v. Smith, 157 Mich. 302, 122 N.W. 91, in whi......
  • Bennett v. Olney
    • United States
    • Supreme Court of Michigan
    • 13 Mayo 1885
    ...v. Burnap, 39 Mich. 739;Milton v. Wacker, 40 Mich. 229;Willcheck v. Drain Com'r, 42 Mich. 105;S.C. 3 N.W.REP. 284;Tireman v. Drain Com'r, 40 Mich. 175;Lampson v. Drain Com'r, 7 N.W.REP. 362. The order of the probate court, while identifying the route, contained no description of lands belon......
  • Bennett v. Olney
    • United States
    • Supreme Court of Michigan
    • 13 Mayo 1885
    ...168; Taylor v. Burnap, 39 Mich. 739; Milton v. Wacker, 40 Mich. 229; Willcheck v. Drain Com'r, 42 Mich. 105; S.C. 3 N.W. 284; Tireman v. Drain Com'r, 40 Mich. 175; Lampson v. Drain Com'r, 7 N.W.REP. The order of the probate court, while identifying the route, contained no description of lan......

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