Township of Whiteford v. Probate Judge of Monroe Co.

• Decision Date: 06 March 1884
• Citation: 53 Mich. 130,18 N.W. 593
• Court: Michigan Supreme Court
• Parties: TOWNSHIP OF WHITEFORD and others v. PROBATE JUDGE OF MONROE CO. and others.

18 N.W. 593

53 Mich. 130

TOWNSHIP OF WHITEFORD and others v. PROBATE JUDGE OF MONROE CO. and others.

Supreme Court of Michigan

March 6, 1884

The proceedings as to the appointment, qualifying, and authority of drain commissioners are all statutory, and must conform to the statute in every material requirement, and the proceedings must show such compliance on their face.

A showing that the petitioners for the drain are resident freeholders of the county in which the drain is to be, the oath and bond of the commissioner for the faithful performance of his duty, the notice to interested parties of the pendency of the application or proceedings, and the proper adjudication of the necessity and practicability of the proposed drain, are all essential, and, being omitted in this case, the proceedings are without authority of law, and are void.

Where the action taken by the judge of probate and the commissioner are not only irregular, but null and void, certiorari is the proper remedy. It would not be if the proceedings were merely irregular.

Certiorari to probate judge, county clerk, and township clerk.

Grosvenor & Landon, for petitioners.

Bean &amp Underwood, for respondents.

SHERWOOD J.

The certiorari in this case brings before us proceedings had before the judge of probate for the county of Monroe appointing a special drain commissioner to construct a certain ditch, and widen, deepen, and straighten natural water channels as parts thereof, for the purpose of draining Ottawa lake and certain lands lying along said ditch or drain,--said drain being partly in Monroe and partly in Lenawee counties. The proceedings are taken under section 5 of act No. 269, Sess.Laws 1881, (2 How.St. c. 40, p. 474,) and consist (1) of a petition to the judge of probate, signed by six persons, who describe themselves as freeholders and residents of the counties of Lenawee and Monroe, three from each county, and forty-four other persons from the two counties, praying for the appointment of J.M Robertson, as special drain commissioner, to construct the ditch aforesaid. (2) The order of the judge of probate, made the same day the petition was filed, appointing said Robertson as such special drain commissioner. (3) The order of the said special drain commissioner, establishing said ditch or drain, and which reads as follows: "I, Josephus M. Robertson, special drain commissioner for the foregoing described ditch or drain, do hereby order that said ditch or drain be and it is hereby established, as hereinafter described, and that said ditch or drain shall be known and recorded by the name of Ottawa lake, or Big ravine outlet special drain No. 141."

The county clerk of Monroe county and the township clerk of the town of Whiteford, each make return to the writ in this case and say that said special drain commissioner has never filed any affidavit or bond, as such commissioner, in either of the offices of said clerks; and the affidavit for the writ states no such affidavit has ever been made, or bond given, by said Robertson, as such special drain commissioner. The county clerk, also, further returns that the board of supervisors, of Monroe county, has made no order, nor taken any action in the relation to said drain proceedings, or to said special drain commissioner.

The petition upon which the writ in this case was allowed, states that said Robertson, who was a resident of the county of Lenawee, presented the petition to the judge of probate of Monroe county for the appointment of himself as such special commissioner, and that no notice was given to any one by said Robertson, or the judge of probate, of the pending of the petition, or of the time and place when a hearing would be had upon the same, and that without any proof or verification of the petition the judge proceeded ex parte and made the order appointing said Robertson such special drain commissioner; and that no notice whatever of any proceedings in the matter was given to parties interested, or any other order made in the premises; that all the persons owning land through which it was proposed to construct said drain had not released the right of way, nor their damages therefor, and that among them were several minors; that the said Robertson has pretended to act under said appointment, and filed a report of his doings with the county clerk, by which, it appears, he has ascertained and determined the cost of said drain, established by him as above stated, to be $32,361.05, and that the petitioners had been assessed that amount; that said drain, as laid and established, is for the most part, if not entirely, on the line of existing drains already established by the township and county drain commissioners. It does not appear by the return to the writ or in any of the proceedings that Robertson accepted the office, or qualified as required by law, or that the necessity for constructing the said drain for any reason was adjudicated or determined by said special commissioner, or any other person or persons.

The petitioners in the writ make the following objections to the proceedings of the judge of probate and said special drain commissioner, viz.: First, because no notice was given to the parties interested of the time and place of hearing of said application for the appointment of...