Smith v. Carlow

• Decision Date: 16 July 1897
• Citation: 114 Mich. 67,72 N.W. 22
• Court: Michigan Supreme Court
• Parties: SMITH v. CARLOW, TOWNSHIP TREASURER.

72 N.W. 22

114 Mich. 67

SMITH v. CARLOW, TOWNSHIP TREASURER.

Supreme Court of Michigan

July 16, 1897

Error to circuit court, Lapeer county; George W. Smith, Judge.

Action by Nathaniel Smith against Lyman Carlow, township treasurer. Judgment for plaintiff. Defendant appeals. Reversed.

This case is no stranger to the courts. It involves the validity of the proceedings to construct what is known as the "North Branch of Mill Creek Drain," situated in the counties of St. Clair and Lapeer, which drain is several miles in length. No proceedings were taken to contest the validity of this drain until it was nearly completed, at an expense of upwards of $30,000. An assessment district had been made by the commissioners, and the tax levied. At a session of the supervisors of the county of Lapeer held October 4, 1895, the board adopted a resolution refusing to apportion the tax upon the several townships interested. Thereupon Mr. Snyder, the drain commissioner for the county of Lapeer, presented a petition to the circuit court for that county asking for the writ of mandamus to compel the supervisors to reconvene, and apportion the tax. The petition set forth the proceedings for the establishment of the drain and alleged their validity. The board of supervisors made a long answer, alleging the invalidity of the proceedings, and for the same reasons now presented. An issue was framed proofs were taken, and on November 20, 1895, the circuit court entered an order adjudging and determining that the complaint of said relator was "as appears of record," and ordering the supervisors to reconvene, and apportion the tax. The writ of certiorari was issued by this court to review this order. On December 17, 1895, the writ was dismissed by this court. No written opinion was filed but it appears from the motion that one of the principal reasons was that after the order of the circuit court the board had reconvened, and complied therewith. After this action the supervisors of the township refused to spread the taxes upon the township rolls, and the drain commissioner appealed to this court to compel the appropriate action on their part. On December 9, 1896, this court made an order directing said supervisors to spread these taxes upon their assessment rolls. Thereupon the plaintiff in this case paid his tax, $8.68, under protest, and brought this suit to recover the money so paid.

Geer Williams & Halpin and Chadwick & McIlwain, for appellant.

Atkinson & Wolcott, for appellee.

GRANT J. (after stating the facts).

1. The point was raised in the court below that the question was res judicata. This question is not raised in this court by counsel, perhaps for the reason that an adjudication upon the entire controversy is desired. Speaking for myself, I am unable to see why the question is not res judicata. I have examined the papers in the certiorari case, and, as above stated, the proceeding was attacked upon every ground now raised. The order of the court shows that it passed upon the validity of the proceedings. Inasmuch, however, as this point is not raised, we will proceed to the other questions.

2. Every notice which the statute requires was given during the progress of these proceedings. No appeal was taken as provided in the drain law, and no attempt made to review them by the writ of certiorari. It is true that this plaintiff testified that he was not aware for a long time that his land was included in the assessment district, and that he did not suppose that it could be benefited by the construction of the proposed drain. The statute required no personal service upon him, and, when the statutory notices have been given by publication, no personal service is necessary. Among the reasons for the delay stated in the plaintiff's brief are these: "The time required to examine the voluminous proceedings; the necessary co-operation of a large number of interested parties, the expense being far too great to be borne by a single individual; and the mistaken and ineffectual appeal to the board of supervisors." From this it appears that many taxpayers have combined in the prosecution of this suit to contest the validity of the proceeding. This drain is now constructed. All parties to the proceeding acted in good faith. There is no evidence of fraud. The entire proceedings were open and notorious, and evidently were known to most, if not all, whose lands were affected. The courts were open to them to contest its validity before the contractors had performed the work under their contract. The commissioners decided that it was a public necessity. Whatever advantage it is to the public has been reaped. It is just that the contractors be paid, and courts should compel payment unless some insurmountable obstacle stands in the way. We think this case comes clearly within many other decisions of this court which hold that when parties stand by and see such improvements made, and take no steps to impeach their validity, they are estopped to raise their validity when called upon to pay for them.

3. We will, however, dispose of some of the objections to the proceeding upon which the court held the tax invalid, and directed a verdict for the plaintiff. The petition was signed by...