Wilcox v. Paddock

• Decision Date: 10 February 1887
• Citation: 65 Mich. 23,31 N.W. 609
• Court: Michigan Supreme Court
• Parties: WILCOX v. PADDOCK, Judge of Probate, Gratiot Co.

31 N.W. 609

65 Mich. 23

WILCOX v. PADDOCK, Judge of Probate, Gratiot Co.

Supreme Court of Michigan

February 10, 1887

Certiorari to judge of probate of Gratiot county.

Auten & Moss, for petitioner.

S.J Scott and P.W. Whitney, for respondent.

MORSE J.

The petitioner is a resident and freeholder in the township of Essex, Clinton county. She owns 80 acres of land, the most of which is wild and uncultivated, situated along the Maple river. It is valued at $1,200, and incumbered for $1,000. By proceedings taken in the probate court of Gratiot county under Act 94 of the Session Laws of 1885 to improve the Maple river, a tax has been assessed against her said land in the sum of $102.24. She brings said proceedings by writ of certiorari to this court for review.

The act in question was approved May 13, 1885. It was entitled "An act making an appropriation of state swamp lands to aid the county of Gratiot in improving the channel of Maple river, and to authorize a tax to complete the same, and to repeal act number fifty of the Session Laws of 1881, entitled 'An act to authorize the board of control of state swamp lands to make an appropriation of swamp lands to remove bars and obstructions in Maple river in the counties of Clinton and Gratiot,' approved March 26, 1881." It appropriated 10 sections of swamp lands to aid in improving the channel of the Maple river in the counties of Clinton and Gratiot. The swamp lands were appropriated to the county of Gratiot.

Upon application in writing, signed by three or more freeholders of each of the counties of Clinton and Gratiot, and residing in either of the townships of Fulton, Washington, and Elba in Gratiot county, and Essex, in the county of Clinton presented to the probate court of Gratiot, a hearing was to be had by such court, upon notice, specified in the act, to all persons interested in such petition, and a special commissioner appointed to superintend the work provided by the act, in case "it shall appear that said work is necessary, and for the good of the public health, or highways, and a means of reclaiming swamps and overflowed lands in said townships." The notice required by the act was to be served by posting copies of the order of hearing in three of the most public places in each of said townships at least 10 days before the hearing of the petition. The commissioner so appointed was, after qualification and giving bond, empowered to examine, as soon as practicable, personally the line of the proposed work; and "if, in his opinion, it is necessary, and for the good of the public health, that the channel of the Maple river, in the townships of Fulton, Washington, and Elba, in Gratiot county, and the township of Essex, in Clinton county, should be opened, deepened, widened, or straightened, and otherwise improved, he shall *** cause a survey and measurement of the line, *** and shall establish the commencement and terminus, and determine the route, width, length, and depth thereof, and for that purpose may enter upon any lands traversed by the proposed route of said work." Upon the completion of the survey, plans, etc., the commissioner is authorized to take steps to procure title to the county of Gratiot of the lands, or right of way necessary therefor, and is vested with all the powers conferred upon county or special drain commissioners, and may proceed to acquire title, without petition or other preliminary proceedings, in the manner provided for acquiring title for county drains, or he may proceed under any other law of this state provided for condemning right of way. He may proceed the same as special drain commissioners are authorized to, in cases where lands affected by the construction of drains are lying in more than one county, the same as if he were appointed as a special commissioner by the probate court of Gratiot county, in pursuance of act No. 269 of the Session Laws of 1881, and the probate court for said county is given the same jurisdiction of all the proceedings in the prosecution of the improvement as it would have had had said commissioner been appointed by said court under Act 269. An order for the amount of damage awarded, drawn upon the treasurer of the proper township, and tendered to the person entitled to such damages, or deposited with the township clerk, shall be deemed a sufficient security for the same. The cost of the improvement, and expense incident thereto in excess of the swamp-land appropriation, is authorized to be assessed upon the lands benefited thereby. The commissioner makes the assessment roll, which, after completion, is to be submitted to a board of review, who may alter and amend the same, and whose decision shall be final. The board of review is to be composed of the supervisors of the four townships named in the act, and the commissioner, who is chairman, and authorized to vote only in case of a tie. The notice of the meetings of the board is to be served personally, or left at the respective residences of the persons assessed. The taxes thus assessed are collected by the township treasurer of the respective townships wherein the lands assessed are located; but, when collected, are held subject to the order of the commissioner for the payment of the contract, damages, and other expenses pertaining to said improvement. There are other provisions in the act; but I have noticed all I have deemed material in the settlement of this controversy.

On the eighteenth of May, 1885, an application was filed in the probate court of Gratiot county praying for the appointment of a special commissioner on the improvement of Maple river "according to the provisions of house bill No. 689, file No. 141." The body of the application stated that the signers were "freeholders residing in the townships of Fulton, Washington, and Elba, in Gratiot county, and the township of Essex, in Clinton county." It was dated at Lansing, February 25, 1885, some 20 days before the approval of the bill by the governor, and was signed by nine persons purporting to be residents of Gratiot, and seven of Clinton county. It did not appear on the face of the petition, or anywhere in the proceedings, what townships any of them resided in. Upon this application, the same day of its filing, the judge of probate of Gratiot county made an order appointing a hearing June 8, 1885, and requiring all persons interested to appear on that day, and show cause why such commissioner should not be appointed, and to be heard in reference to such appointment. Notice was ordered to be given by causing a copy of the order to be posted up in three of the most public places in the townships named in the act at least 10 days before the hearing. The hearing was, on the eighth day of June, adjourned until the twenty-eighth day...