161 Mich. 117 | Mich. | 1910
In the year 1904 the assessment in controversy in this case was made. It was for a sewer construction tax, and covered 376 acres of land. The benefits were assessed at a flat rate per square foot. The sewer was constructed at a cost of $71,250, one-eighth of which was paid by general tax, which cost was made payable in four annual installments. The auditor general filed the petition in this cause to obtain a decree against delinquent lands, and several landowners in Port Huron contested this sewer tax. The trial judge sustained the tax, and two defendants have appealed: Sanborn, who appears to have been owner when the assessment was made, and Bishop, who purchased his land later and after his grantor had paid two assessments. The third installment is involved in both instances.
The contestants urge:
(1) That the tax is void for the reason that no assessment of benefits was made by the common council.
(2) That this was an unlawful assessment, because made upon a basis of a flat rate per square foot.
The petitioner contends:
(1) That the assessment was made by the council.
(2) That the council must be held to have found that a flat rate was in compliance with the provisions of law.
(3) That the validity of the tax is res adjudicata as to Sanborn, and the right to question it has been waived by Bishop and his grantor.
“Upon the awarding of such contract the council shall direct the engineer to make out a special assessment roll to defray the cost and expense of doing such work, or making such improvement, and the incidental expenses therein, as fixed in the manner aforesaid.”
The engineer filed the following certificate:
“I, W. W. Phelps, city engineer, do hereby certify that I have included in the annexed assessment roll all the real estate in the assessment district as fixed and determined by the common council together with the name of each owner, or occupant of each lot, tract and parcel of land described in said roll so far as I could ascertain the same after diligent search and inquiry. And I further certify that I have assessed upon each description of land its just proportion of the amount directed to be raised by the common council. I further certify that I have apportioned the amounts assessed against each parcel of land according to the benefits resulting to each of said lots, tracts and parcels of land and that in so doing I have taken into account the area of the same. I further certify that I have assessed to the city of Port Huron its just proportion of the cost and expense of the construction of said sewer and the expenses incident thereto in like manner as I have assessed the private property mentioned and described in said roll.”
The action of the common council is shown by the following resolution which was passed by that body:
“The confirmation of the roll is in these words: By Alderman Burkholder: Resolved, that the special assessment roll No. 155 for constructing a sewer in Tenth, Beard and Twentieth streets from the St. Olair river to a point 75 feet north of Union street, as reported by the city engineer, be, and the same is hereby, accepted and adopted and confirmed.”
It is pointed out that in the certificate the words “and that in so doing I have taken into account the area of the same” were not required by section 7 of the charter as amended (Act No. 539, Local Acts 1903, chap. 17). Coun
In Walker v. City of Detroit, 138 Mich. 639 (101 N. W. 847), we were not able to say from the record that the assessment was not according to benefits, although at a uniform rate per square foot, inasmuch as the territory involved therein was a very limited tract, in the heart of Detroit, where there was little chance for distinction.
Res Adjudicata. It has appeared that this tax was made payable in four installments. Sanborn paid the first installment for the year 1904. He contested the payment for the year 1905 in the auditor general’s proceeding for that year, raising the same points that he has raised in this case. It is clear that the questions are res adjudicata as to Sanborn, against whom this assessment has been once sustained.
Bishop’s Defense. It is claimed by petitioner’s counsel that both defendants should be estopped by laches from questioning their assessments. This proceeding was one in which there was publication and an opportunity for review. The defendants permitted this work to be undertaken and completed at an expense of over $70,000. They took no steps to prevent such action, but waited until an effort was made to foreclose upon the premises, apparently being willing to receive the benefits of this sewer and let others pay their share of the cost. We have often refused to relieve parties under such circumstances. The following cases are in point: Byram v. City of Detroit, 50 Mich. 56 (12 N. W. 912, 14 N. W. 698); Harwood v. Huntoon, 51 Mich. 639 (17 N. W. 216); Brown v. City of Grand Rapids, 83 Mich. 101 (47 N. W. 117); Lundbom v. City of Manistee, 93 Mich. 170 (53 N. W. 161); Moore v. City of Detroit, 103 Mich. 292 (61 N. W. 529); Goodwillie v. City of Detroit, 103 Mich. 283 (61 N. W. 526); Duffy v. City of Saginaw, 106 Mich. 339 (64 N. W. 581); Atwell v. Barnes, 109 Mich. 10 (66 N. W. 583); Fitzhugh v. Bay City, 109 Mich. 581 (67 N. W. 904);
It is contended that this rule should not be held applicable to Bishop’s land. This is a proceeding in rem to enforce a lien for a tax against premises upon which Bishop held a mortgage, and which, if valid, would have priority over his mortgage. But the rule stated has usually been restricted to cases where relief has been sought in equity, and has been denied upon the principle that: “ He who seeks equity must do equity,” and except in drain cases, which seem to have been considered exceptional, the rule has not been applied against a defendant.
In Auditor General v. Calkins, 136 Mich. 1 (98 N. W. 742) — a paving case arising upon defense to foreclosure proceedings commenced by the auditor general — Mr. Justice Grant sustáined the objection, saying:
“This is not a case where a court of equity will leave a party complainant to his remedy at law. The defendant is now for the first time brought into court and given an opportunity to contest the validity of the proceedings. The statute gives him the right to wait until the State moves to foreclose the tax lien upon his property, and then gives him the right to appear and make any objections which were fatal to the proceedings. He cannot, therefore, be charged with laches. If the statute, as formerly it did, gave a deed to the tax purchaser, and gave the*123 taxpayer no opportunity to appear in court to contest it, we might then apply the rule, as in other cases, that equity will not afford him relief, but will leave him to his remedy at law.”
This was followed in Murphy v. Dobben, 137 Mich. 565 (100 N. W. 891), and W. F. Stewart Co. v. City of Flint, 147 Mich. 697 (111 N. W. 352), and the case of Auditor General v. Stoddard, 147 Mich. 332 (110 N. W. 944). Under these authorities defendant may maintain his defense, and the cause is within the holding in the Case of O’Neill.
The decree is reversed, and bill dismissed as to the lands of Bishop, with costs. In other respects it is affirmed, with costs.