Vill. of Oak Park v. Van Wagoner

• Decision Date: 17 May 1935
• Docket Number: No. 9.,9.
• Citation: 260 N.W. 743,271 Mich. 450
• Parties: VILLAGE OF OAK PARK v. VAN WAGONER et al.
• Court: Michigan Supreme Court

271 Mich. 450

260 N.W. 743

VILLAGE OF OAK PARK

v.VAN WAGONER et al.

No. 9.

Supreme Court of Michigan.

May 17, 1935.

Actions by the Village of Oak Park against Murray D. Van Wagoner, Oakland County Drain Commissioner, and others, which were consolidated. From the judgment, defendants appeal.

Affirmed.

Appeal from Circuit Court, Oakland County, in Chancery; Glenn C. Gillespie, Judge.

Argued before the Entire Bench.

Arthur P. Bogue, Pros. Atty., and Robert D. Heitsch, Asst. Pros. Atty., both of Pontiac, for appellants.

Gertrude Clinton, of Detroit (Charles C. Stewart, of Detroit, of counsel), for appellee.

POTTER, Chief Justice.

In this case, the trial court's opinion so clearly states the facts, issues, and governing law that it is adopted. It was said:

‘These actions were brought by the village of Oak Park against the county drain commissioner and the board of county auditors of Oakland county to cancel and set aside assessments levied against the village at large, to defray part of the cost of construction of Royal Oak No. 7 storm sewer drain and Royal Oak No. 9 storm sewer drain. Because both cases involved common questions, they were consolidated at the hearing.

‘1. Did the county drain commissioner have authority to assess the village of Oak Park at large for any portion of the cost of Royal Oak No. 7 storm sewer drain?

‘Proceedings for the construction of the drain were commenced on June 3, 1927, by the filing of an application for laying out and designating a drainage district. At that time the General Drain Law (Act 316, Public Acts 1923) did not permit the drain commissioner to apportion any part of the cost of the project against any village. On September 4, 1927, Act No. 331, Public Acts 1927, which amended the Arain Law so as to permit a village to be assessed for benefits, became effective. Between the date of filing the application for the drain and before the amendment became operative, the county drain commissioner had made and entered an order laying out and designating the drainage district; published the notice to parties interested as required by law; and petitioned the probate court for the appointment of a board of determination. The probate court appointed a board of determination; a date of meeting was fixed, and the board met and determined that the construction of the drain was necessary. The drain commissioner subsequently, on August 27, 1927, entered and filed his first order of determination, but up to this stage of the proceedings the Drain Law did not authorize the drain commissioner to make the village a party to or assess any portion of the cost against it. The village was thus deprived of an opportunity to appear before the board of determination on the question of the necessity for the drain, which was foreclosed by the determination of the board and the first order of determination by the drain commissioner. Section 2, c. 4, Act 316, Public Acts 1923.

‘After the 1927 amendment became effective, the village was named in subsequent proceedings, gave a release of the right of way, and was assessed for benefits. In the amendments to the various sections, villages were named with the other municipal units which might be assessed for the cost of any drain, and the question is, Where proceedings for the construction of a drain were commenced under the old law, which did not authorize an assessment against a village, will an amendment to the statute while such proceeding is in progress permit the village then being made a party after the time had passed within which it might be heard on the question of necessity for the project?

‘Proceedings to establish drains are all statutory, not according to the course of common law, must strictly conform to the statutes authorizing them, and the record must show that every substantial requirement was carried out. Harbaugh v. Martin, 30 Mich. 234;Kroop v. Forman, 31 Mich. 144;Dickinson v. Van Wormer, 39 Mich. 141;Lane v. Burnap, 39 Mich. 736;Milton v. Wacker, 40 Mich. 229;Township of Whiteford v. Monroe County Probate Judge, 53 Mich. 130, 18 N. W. 593.

‘So far as I have been able to discover, the precise question has never been raised, but the omission to give notice has been held to invalidate drain proceedings. In Watson v. Fox, 251 Mich. 495, 232 N. W. 213, it was held the failure of a drain commissioner to give a similar notice under the section of the statute relating to intercounty drains voided a subsequent assessment. There an application had been filed for the construction of an intercounty drain. Notice of the meeting of the drain commissioners of the counties interested was not published for one full week in advance of the date of hearing as required by law. Plaintiff, a nonresident, brought suit to recover a drain tax paid under protest. The court adopted the opinion of Judge Searle, wherein he said, upon the question of failure to give the notice: “The statute then in force required this notice to be given-required this notice to be published for not less than one week. Neither of the notices complied with the statute. The plaintiff in this case was a nonresident, and was entitled to notice as required by law. The commissioners could retain jurisdiction to assess her lands in case they have not theretofore lost it, only by giving notice by publication as provided by this statute, and failing to give such notice by publication as provided by statute, their subsequent proceedings must be held void as to her.’

‘Until the proceedings had passed the point of appointment of commissioners, who had held a meeting and made a determination of necessity, and the drain commissioner had made an order determining that the drain was necessary, the village could not have been made a party. The notice, hearing, and order of determination are an essential part of every drain proceeding, without which a subsequent assessment for benefits cannot be sustained. Plaintiff could not have been lawfully made a party to the proceeding until after these jurisdictional acts had been performed. The amendment of 1927 does not indicate that it was intended to have retroactive effect or to waive such essential acts as to drain proceedings already in progress. It did not authorize the commissioner to add the village as a new party at that stage of the project.

‘2. Did the drain commissioner have authority to construct the drains?

‘The estimated cost of drain No. 9 was $10,000 and of No. 7 was $191,000. Both were of an underground type, of vitrified, double strength sewer crock, with catch-basins for surface waters and Y connections for sanitary sewer connections for each residence lot. They was a typical type of combined city sewer and drain, capable of caring for sanitary sewage and surface water of the whole area served when completely built up. Neither was a drain within the provisions of the Drain Law, and both are of the type condemned by the Supreme Court in Clinton v. Spencer, 250 Mich. 135, 229 N. W. 609;Kinner v. Spencer, 257 Mich. 142, 143, 241 N. W. 240;Township of Lake v. Millar, 257 Mich. 135, 241 N. W. 237.

‘3. Is the village estopped to question the validity of the proceedings?

‘The village authorities had knowledge of the pendency of the proceedings and of the construction of the drains, approved both projects, and gave releases of the necessary rights of way. Residents of the village are now using both drains for the disposal of sanitary sewage, and the village is receiving a benefit through the carrying away of its surface waters. It is undisputed that the entire amount assessed against the village property is less than it would have cost the village to construct the drain itself. Under these circumstances, counsel for defendant insists the villate, having knowledge of and given its support to the projects, and making use thereof upon completion, knowing they must be paid for by assessment upon the property benefited, cannot now question validity of the tax.

‘The rule is well settled in this and other jurisdictions that, where the owner of property sits by while improvements are being made under statutory authority, knowing that the only method of compensating those who perform the labor is by an assessment for benefits, cannot, after the benefits have been reaped, resort to a court of equity for redress for irregularities in the proceedings. Harwood v. Drain Commissioner, 51 Mich. 639, 17 N. W. 216;Hall v. Slaybaugh, 69 Mich. 484, 37 N. W. 545;Moore v. McIntyre, 110 Mich. 237, 68 N. W. 130;Township of Walker v. Thomas, 123 Mich. 290, 82 N. W. 48;Township of Swan Creek v. Brown, 130 Mich. 382, 90 N. W. 38; Crawford v. Fox, 251 Mich. 495, 232 N. W. 213.

‘A different rule applies, however, where the proceedings are void, because then a jurisdictional question is involved, which may be raised at any state of the proceedings.

‘In Taylor v. Burnap, 39 Mich. 739, plaintiff petitioned for a drain, but the commissioner's notice was not sufficient to confer jurisdiction upon him. Defendant raised the question of estoppel, but the court held that one who petitions for a drain is presumed to petition for a legal proceeding, and is not therefore estopped from complaining where the proceeding is illegal, saying in part: ‘As to the second ground (estoppel) it is enough to say that the plaintiff must be supposed to have petitioned...