School Dist. of Huron v. Huron Tp.

• Decision Date: 30 August 1972
• Docket Number: No. 1,Docket No. 12658,1
• Parties: SCHOOL DISTRICT OF HURON, Plaintiff-Appellee, v. TOWNSHIP OF HURON, a Michigan township corporation, its supervisor, clerk, treasurer, tax assessor, officers and/or trustees, Defendants-Appellants
• Court: Court of Appeal of Michigan — District of US

Page 491

202 N.W.2d 491

42 Mich.App. 590

SCHOOL DISTRICT OF HURON, Plaintiff-Appellee, v. TOWNSHIP OF HURON, a Michigan township corporation, its

supervisor, clerk, treasurer, tax assessor,

officers and/or trustees, Defendants-Appellants.

Docket No. 12658.

Court of Appeals of Michigan, Division No. 1.

Aug. 30, 1972.

Leave to Appeal Denied Oct. 25, 1972.

Released for Publication Dec. 11, 1972.

Ronald E. Mack, Berry, Hopson, Francis & Mack, Detroit, for defendants-appellants.

Kirby L. Wilson, III, River Rouge, for plaintiff-appellee.

Before V. J. BRENNAN, P.J., and QUINN and O'HARA ^*, JJ.

O'HARA, Judge.

Defendant Township of Huron appeals as of right from the summary judgment entered in favor of plaintiff.

Such facts as appear from the somewhat sketchy record indicate that in August of 1968 the State Water Resources Commission obtained a court order directing defendant to abate its unlawful pollution of the Huron River by constructing the required sanitary sewers and treatment facilities. Pursuant to M.C.L.A. § 123.731 et seq.; M.S.A. § 5.570(1) et seq., defendant Township contracted with Wayne County for construction of the sewage facilities; bonds were issued by the County; and defendant, to fulfill its contractual obligations, enacted Township Ordinance No. 68--2. Of the various rates, charges and inspection fees imposed by ordinance, we are concerned solely with the 'debt service charge'. The 'debt service charge' was comprised of an 'interceptor charge' and a 'lateral charge'. The total of all costs and charges payable by plaintiff amounted to $66,590.

Plaintiff filed a complaint challenging the 'debt service charge' assessed against it by defendant and alleging that the 'interceptor charge' and the 'lateral charge' were, in reality, taxes and not mere user fees.

Plaintiff subsequently filed a motion for summary judgment under GCR 1963, 117, alleging that defendant had failed to state a valid defense to plaintiff's claim (GCR 1963, 117.2(2)) and arguing that no material issue as to any material fact existed under GCR 1963, 117.2(3) because Inter alia: plaintiff was exempt from taxation as a matter of law and that plaintiff was exempt from special assessments in the absence of prior agreement.

The motion was orally argued before the learned trial judge who entered an order granting plaintiff's motion for summary judgment. ¹ This appeal of right followed. Examination of the record discloses at least two grounds for reversing the judgment entered below. We discuss the errors Seriatim.

While the learned trial judge may have completely understood the issues on the basis of counsel's arguments, we are limited to what affirmatively appears of record. There was no record made of what occurred at the hearing on plaintiff's motion for summary judgment and the order granting this relief merely recites that the prevailing party is entitled to judgment as a matter of law. We cannot act on the basis of such an incomplete record.

Now as to the second error, we set forth the affidavit submitted in support of plaintiff's motion for summary judgment:

SUPPORTING AFFIDAVIT

STATE OF MICHIGAN

COUNTY OF WAYNE SS

On this 16th day of August, A.D.1971, before me, a notary public in and for said county and state, personally appeared KIRBY L. WILSON, III, who, being first duly sworn, deposes and says that he has read the foregoing Motion by him subscribed and knows the contents thereof; that the same is true of his own knowledge except as to matter therein stated to...