Collins v. Township of Grand Rapids

108 Mich. 675 | Mich. | 1896

Hooker, J.

The plaintiff has sued the township of Grand Rapids to recover abalance due upon a contract made and performed by bis assignor, whereby he was to make certain street improvements on a street or highway constituting the boundary between said township and the city of Grand Rapids. This contract was made in the course of proceedings taken under certain local statutes authorizing the city of Grand Rapids and adjacent townships to unite in the improvement of highways lying between said city and townships. Act No. 313, Local Acts 1875; Act No. 353, Local Acts 1877. A special assessment was levied to pay the expense of said improvement, and most of the amount assessed was paid to the township treasurer, and by him applied upon the contractor’s claim. Some $2,000 or more was not paid, and in a proceeding to collect the same, contested by one Olive B. Fisher, it was held that the assessment was invalid, for the reason that a majority of the resident property holders upon the portion of the street improved had not petitioned for the improvement, and that, therefore, the assessment was void. It was urged on behalf of the auditor general that the determination by the township board that the petition had been signed by a majority of the resident freeholders, which determination was recited in the order of the township board, was an adjudication of the fact, which placed it beyond collateral attack; but the court held otherwise, and said:

‘ ‘ The statute does not provide that this determination of the township board shall be conclusive, and, in the absence of such a provision, the rule is well settled that the fact whether or not the requisite number of persons have signed a petition or given assent to pave or improve streets, when the power so to pave or improve them depends upon a given number or proportion of the proprietors to be affected, can be inquired into, and that the non-assent may be shown as a defense to an action to collect the assessment.” Auditor General v. Fisher, 84 Mich. 133.

This street improvement was again before us in an action brought by Fisher against the township and the plaintiff’s assignor, i. e., the man who made the improvement; and a judgment for a substantial amount, in trespass, for grading down the street, and removing the trees in front of her residence, was affirmed. In that case it was conceded that the proceedings under the statute were void, and the court took that view of the matter. Fisher v. Naysmith, 106 Mich. 71.

In the case now before us, the plaintiff makes the same claim that was made in behalf of the auditor general, viz., that the township board had power to pass upon the question of fact, and determined that the petition was signed by a majority of the resident freeholders; that the proceedings show such adjudication; and that the proceedings cannot be. attacked by the township, upon that ground, in this case; and it is further said that, while the taxpayer whose land is included in the special assessment may raise the question in his defense against the levy, it cannot be' raised by the township officers, in behalf of the taxpayers generally, who, manifestly, must furnish the necessary money to pay plaintiff’s claim, if he is allowed to recover. This is placed on the ground of estoppel, it being asserted that the township board represented to the plaintiff’s assignor that the petition was signed by the requisite number of freeholders.

It seems to us a plain proposition that a proceeding which is void because the necessary steps have not been taken to confer jurisdiction upon a statutory board, whose powers are strictly limited by the statute, cannot be given effect, and practically made valid, by an adj udication by such board that the necessary prerequisites of jurisdiction exist, or that the absolutely void act shall, through the application of the doctrine -of estoppel, be made binding in behalf of the contractor who has acted upon the faith of the acts of the board, against the taxpayers of the township at large, who are not benefited by the improvement, while it cannot have that effect against those of the locality who are benefited, and by whom it was contemplated, by all concerned, payment for the improvement should be made. It is the general rule that one who relies upon such proceedings must ascertain that jurisdiction exists, and it would be an anomalous rule if we should hold that the township could -be bound by a mere representation of the town board in a matter where the statute required specific acts to be performed before the township could be affected. The contractor was bound to ascertain whether the township board had jurisdiction, and could not, rely upon their opinions or representations as to the fact necessary to confer it. Rens v. City of Grand Rapids, 73 Mich. 247, and cases cited; Mackey v. Township of Columbus, 71 Mich. 230; Bogart v. Township of Lamotte, 79 Mich. 299.

The judgment of the circuit court is affirmed.

Long, C. J., and Moore, J., concurred. Grant and Montgomery, JJ., did not sit.