Harbaugh v. Martin

30 Mich. 234 | Mich. | 1874

Cooley, J.

Certiorari is sued out in this case to reverse tbe proceedings of tbe drain commissioner in assessing upon the plaintiffs in error and others the expense of deepening and widening the Prairie Bonde Ditch, in the township of Springwells. The proceedings purport to have been had under chap. Ifl of the Compiled Latos of 1871, p. 570, the fourth section of which requires the county drain commissioner, upon the application to him in writing of ten or more owners of land in each township in or through which they ask to have a drain constructed, to ^ institute proceedings for that purpose, with a-proviso, however, that “the petition, except when the same is asked for upon sanitary reasons only, shall be signed by a majority of the resident owners of the lands through - or into which said drain is proposed to be constructed.” The petition in this case did not ask action upon sanitary reasons. It was signed by twenty-one persons who style themselves “citizens and freeholders of Springwells,” but there is no finding in the case, nor even any recital in any of the papers which make up the record of the proceedings, that these twenty-one persons constitute a majority of the resident owners of the lands through or into which the drain was constructed. A subsequent paper presented to the commissioner as a waiver of a jury to assess damages, etc., is signed by nearly all the same persons, with some others, who are therein recited to’ be “ a majority of the resident owners of the property affected by the said drain;” but this cannot aid the petition, for other property is usually affected by a drain besides that into or through which it extends. It is said, however, that the commissioner in these cases may act upon his own knowledge of the facts. If that be admissible, which we do not decide, the record must in some manner show that he possessed the requisite knowledge to justify his action. The record cannot be aided by knowledge which the commissioner conceals in his own breast; it must.be complete in itself, and all jurisdictional facts must appear on the face of it. In this case nothing appears to show that the petition was sufficiently signed until the commissioner makes return to this court. But assertions in that cannot cure defects in his record.—People v. Highway Commissioners, 14 Mich., 528.

Another difficulty in this case is, that the petition was merely that the ditch be “ cleaned out,” and upon the basis of that request, the commissioner proceeded to make, order and let contracts for deepening and widening it. To deepen and widen a ditch is quite a different thing from merely cleaning it out, which implies only a removal of sediment or other material that may have become deposited in it. What the commissioner undertook to do, therefore, was not asked for by the petition. Other defects need not be noticed.

It is urged for the defendant, that these errors ought not to be reviewed on certiorari where the delay in suing out the writ has been so serious; and the case of Lantis, 9 Mich., 324, is referred to and relied upon. In that case the plaintiffs in certiorari had appeared in the proceedings, and opposed the confirmation of the commissioner’s report; and the court thought a delay of eleven months in seeking other remedy, was, under the circumstances, unreasonable. The plaintiff in error in this case did not, in any way, participate in the proceedings, nor does it appear that he had knowledge of them while they were in progress. His writ is sued out within ten months from the letting of the last contracts. If the proceedings had been according to law, he would have been bound by constructive notice of them; but there can be no constructive notice when there is no jurisdiction.

The proceedings must be quashed.

The other Justices concurred.