Romulus City Treasurer v. Wayne County Drain Commissioner

413 DRAIN v WAYNE COUNTY TREASURER CITY ROMULUS COMMISSIONER 5). (Calendar 3, Argued No. December No. 62508. De Docket 2, 1982. July cided Treasurer, municipal corpo- City other treasurers of The Romulus brought taxpayers for townships, an action and two rations similarly situated in the all others and on behalf of themselves Wayne County against Drain Commis- Wayne Court the Circuit Commissioners, Wayne sioner, Wayne County Board of challenging County County, Wayne the 1975 Treasurer and the alleged plaintiffs that the defendants taxes. The and 1976 drain through special permitted illegally use of monies collected expenses pay of the drain com- administrative assessments expenses administrative contend that missioner. The general paid and that only out of tax funds should expenses under the used for such of monies to be collection fraud. The guise constitutes constructive assessments plaintiff complaint prayed treasurers’ for a declaration of action, injunction, bring preliminary standing accounting records relative of the drain commissioner’s illegal dispute, the assessments were a declaration expenses paid only out of the should be that administrative fund, general owners of the and a return to the municipal placed in escrow monies which had been Kirwan, J., Court, Wayne Circuit John R. treasurers. The granted judgment claims on the accelerated defendants grounds for return of the funds held in escrow on [1] [2, ^{[3] [4] [6]} 71 Am Jur 72 Am Jur 70 Am Jur 5] 25 Am Jur 25 Am Jur 25 Am 73 Am Jur Am 25 Am Jur Jur Jur 2d, 2d, 2d, 2d, Special 2d, 2d, 2d, 2d, References 2d, State and State State and Local Taxation §§ Drains and Statutes Drains and Drains and Drains and and Local Taxation 169. or Local Assessments § §§ Local Taxation 1070. for Points 430-438. Drainage Drainage Drainage Drainage Districts 58.§ Districts §§ §§ Districts 58.§ Headnotes § § 1105, 55. 196. 38, 43, 1141. 44. Romulus Treasurer Comm’r jurisdiction claims were within the exclusive of the Tax Tribu- period 30-day nal and were barred of limitation of the Kaufman, P.J., Appeals, Drain Code. The Court N. J. Holbrook, (Bronson, J., reversed, dissenting), holding D. E. J. municipal standing bring the treasurers’ to the action hearing, evidentiary could not be denied a without full that if part proved fraud on the defendants’ the could claim would (cid:127) limitations, by not barred the statute of because equity jurisdiction, the Tax Tribunal lacked the circuit court 77-24). (Docket proper was the forum Nos. The defen- appeal. dants opinion Coleman, by joined by In an Chief Justice Justices Williams, Fitzgerald, Ryan, Moody, Supreme the Court held: challenges An action which the use of funds obtained through special pay expen- drain assessments to administrative equitable ses of a drain commissioner is in nature not and is original jurisdiction within the exclusive and the of Tax Tribu- Municipal may standing bring nal. treasurers have to an such extraordinary action a circuit court under circumstances may place performing the funds in escrow in lieu of their duty county. ministerial to release the to funds collected the property

Affected owners claim a return of the escrow 30-day period funds in the circuit court. The of limitation prescribed by recovery the Code for of a drain does tax apply property owners’ claims because the return of illegally sought collected funds is rather than tax refund. property of determination the timeliness the of owners’ action by is controlled the doctrine of laches. challenge payment expenses 1. A to of the administrative special proceeding from drain assessment is funds not a for direct by agency review of a final decision or determination relating special to property assessments tax under laws within original jurisdiction the and exclusive Tax the Tribunal as prescribed by the Tax Tribunal Act. Without clear mandate law, Legislature cannot be to assumed to have intended equitable jurisdiction divest circuit courts their in matters involving appropriate guise use of funds under collected special assessment laws. municipal 2. The treasurers in this case cannot be found to standing challenge lack the use of assessments before extraordinary respect a determination is made whether by justify circumstances exist which would a refusal the trea- perform surers to their duties. it is ministerial If determined exist, good that such circumstances there no reason

413 Mich 728 precluding seeking the treasurers from instructions from the placed previously circuit court relative to funds escrow. allegations are sufficient to overcome the defen- The treasurers’ prove They opportunity are entitled to an dants’ motion. alleged. extraordinary circumstances which have Legislature 3. The has not shown a clear intent to divest jurisdiction prop- circuit courts of their to consider the erty owners’ claims to the funds in escrow. If the funds are justifiably by municipal determined to have been withheld treasurers, property owners’ claims for refund of the mo- jurisdiction nies would not be claims for tax refunds within the Tribunal, of the Tax and the circuit court would be forum grant complete able relief. 4. Because the owners seek a return of funds held in municipal escrow the treasurers and not a of a refund drain paid county, governed by tax over to the their action is not 30-day period of limitation of actions to recover a drain tax. The timeliness of the action is controlled the doctrine of laches. Levin, joined by Kavanagh, concurring, Justice Justice would jurisdiction hold that whether the case is within the Tax dispositive. provided remedy by Tribunal is not the Tax inadequate, procedural limitations, Tribunal Act is because of relief, plaintiffs complete to afford the relief. Such under the case, only provided equity requires facts of the can in remand for in trial the circuit court. require 1. Both the Drain Code and the Tax Tribunal Act challenges brought to assessments and taxes be within 30 days barred, or less or be and because this action was not days commenced within 30 it would be barred either under the Drain Code or the Tax Tribunal Act unless it can be main- equity. plaintiffs’ tained in The source of the substantive claim authority that the Drain Commissioner in acted excess of his Code, equitable principles only the Drain need be invoked procedural or, to overcome the limitations of the Drain Code if applicable, procedures the Tax Tribunal Act. When established inadequate recognized right, are to vindicate a in this case a property right except owner’s not to be assessed in accordance statutory authority, equity will entertain the cause and appropriate remedy. fashion an equity 2. A complete court of could fashion case relief infringing rights without parties. on the of innocent third Should the court determine that the drain commissioner did act in authority, plaintiffs allege, levying excess of his as the 1982] Romulus Treasurer Comm’r Drain office, pay expenses assessments to the administrative of his funds, or, court could order a refund out of the escrowed should county board of determine commissioners should administration, appropriated have the funds for it could order a general refund out of tax funds. payable plaintiff property permitted 3. The owners should be 60,000 persons

maintain a class action in this case. Over are in only money a small the class and amount of is involved for taxpayer. each Because the rules of the Tax Tribunal do not provide require maintenance of class actions and also greater payment sought of fees far than the refund for the actions, separate only initiation is the forum which provide adjudication. can effective (1978) App 273 NW2d 514 affirmed.

Opinion of the Court — — — — Equity Tax 1. Taxation Tribunal Jurisdiction Drain Taxes. challenges through An action which use funds obtained special pay expenses drain assessments to administrative of a county equitable drain commissioner is in nature and is not a proceeding for direct review of a final decision or determination by agency relating assessments under original jurisdiction tax laws within the and exclusive (MCL205.731; 7.650[31]). Tax Tribunal MSA Property — — — 2. Taxation Taxes Owners Limitation of Actions. Property by special assessments, owners who are affected drain challenged illegal treasurers, by municipal bring ac- tions in a circuit court for a return of the funds collected pursuant placed to the assessments where the funds are payment county escrow the treasurers in lieu of over pending challenge; resolution of the such an action is not a suit governed period recover a drain tax and is not (MCL prescribed by limitation the Drain Code 11.1265). Municipal — Standing — — 3. Taxation Treasurers Drain Taxes. Municipal may standing extraordinary treasurers have under challenge circumstances to the use of funds collected as paying drain assessments in lieu of the funds over to the county; allegations of such circumstances are sufficient to over- grounds judgment come a motion for accelerated on sue, and, legal capacity proved, the treasurers lack the if 413 Mich the Court proceed from the to seek instructions treasurers to enable the disposition regarding proper funds. of the court Concurring Opinion Levin, J. — Statutory — Equity Deficiencies. Remedies

4. equity developed defi- principles to redress which courts The applicable where the substan- common law are ciencies of the remedy statutory procedure statutory; is where a tive law is providing equity may inadequate, fashion a decree a court of proofs plaintiff’s entitled. show that he is the relief to which — — — Equity. Code Limitation of Actions 5. Taxation challenge provides that a to a drain assessment The Drain Code proceedings specified brought in certiorari within a must be barred, provision applies period and the of limitation or be authority levy- in commissioner acts within his where a drain assessment; ing commissioner acts in excess where a drain inadequate proceedings authority and certiorari are of his owner, equitable rights of an assessed vindicate sought regard procedural may limita- without relief 11.1161). (MCL280.161; Drain Code MSA tions of the — — — Equity. Class Actions 6. Taxation Drain Code ground challenging assessment on the A class action a drain authority of his made a drain commissioner excess was where, brought under the circumstances case, remedy provided by the Drain the administrative 11.1161). (MCL280.161; inadequate Code plaintiffs. S. Ellman for Harry Cross, Counsel, George H. and John Corporation Counsel, Godre, for de- Corporation K. Assistant fendants. in this question presented C.J.

Coleman, case is whether the defendants were entitled to following accelerated on judgment any grounds: subject-matter the circuit court lacked jurisdiction; the treasurer lacked stand- ing; plain- or the statute of limitations barred the hold, first, is, tiffs’ claim. at least We action, Tax Tri- part, equitable not within the 733 Comm’r Romulus Treasurer v Drain Opinion of the Court properly jurisdiction, and thus bunal’s exclusive brought Secondly, in the court. we hold circuit standing yet plaintiffs’ may not the treasurer lacking because this case be determined be necessary present extraordinary circumstances city standing township treasurer have for a to challenge county drain commissioner’s ac- Thirdly, 30-day period hold that tions. we asserted the defendants to limitation bar applicable. action is

I township plaintiffs city treasurers, The are capacities, acting in their official landowners. They present proceedings July 2, instituted the on challenging 1976, 1975 their drain taxes.1 Plaintiffs allege that defendants have committed a construc- collecting money tive fraud expenses through special for administrative procedures.

assessment through special assessments, The monies collected placed contend, are the Revolv- ing purposes Fund, enumerated payment the fund do not include the of such expenses of the drain commissioner’s office as yearly stenographers, engineers clerks, services assessing department. complaint and The money through states 78% received special provided § assessments 196 of the Drain Code of 19562has been for such used admin- purposes. complaint istrative further states dollars, that several hundred are thousand allegations amendments rendered certain account and the controversy alive. Plaintiffs 1956 PA to the Drain Code of later respect aspects necessity MCL filed an amended to their 1976 drain taxes. of this case determining MSA 11.1196. moot, complaint the existence of an escrow its disposition keeps Although PA raising 344, may the same the 1976 have Opinion of the Court additionally

presently escrow, earmarked were expenses. con- Plaintiffs administrative for these tend only paid expenses out should these general through taxation, and received funds of that the guise money under the collection of such a con- laws constitutes assessment argue that fraud. treasurers Plaintiff structive county the funds collected and now release public and violate the trusts in escrow would their offices.3 duties of They forms of seek

Plaintiffs seek various relief. plain- rights of of the the treasurer a declaration accounting bring and an of the this action tiffs to they records as relate to the commissioner’s drain assessments administrative dispute and to funds used for expenses. They also seek declara- illegal disputed that the assessments are tion that ex- the drain administrative commissioner’s general paid county’s penses from the must be request they preliminary Additionally, fund. prohibiting injunction the defendants from enforc- using ing Revolving from assessments and expenses, Drain Fund for administrative monies in escrow and an order that held returned to the landowner plaintiffs._ per allege Plaintiffs also that funds in of mile were $800 excess repair spent expenditures by, approval drain maintenance of the on and that corporations legislative public bodies of 50% drainage required by Code district was thus 196 of the Drain § obtained, They allege approval 1956. that such was and that never according the assessments were within two by levied the benefits received or not years completion required inspection work as from the they Additionally, 196 of the Drain Code of 1956. contend that § required by given. notice 196 was not § parties distinguish allegations sought have not the various complaint plaintiffs’ they may in relation to this to show how differ Thus, plain- judgment. motion for accelerated tiffs’ since consideration allegation of constructive fraud and the factual basis allegation dispose presented, we will sufficient to of the issues allegations, individually or in seek to ascertain whether these either claim, conjunction disposition. fraud a different with the constructive merit Romulus Treasurer v Drain Comm’r Opinion of the Court Defendants filed a motion for accelerated judg- ment claimed they the circuit court lacked subject-matter jurisdiction, the claim was aby 30-day period limitation, barred the treasurer legal lacked the capac- to sue. The ity granted circuit court accelerated judgment relative plaintiffs’ landowner claims for tax refunds. The circuit court consid- ered these claims to be within the exclusive juris- diction of the Tax Tribunal and also to be barred because were not timely brought. The court denied the motion relative to the plain- treasurer requests tiffs’ for injunctive and declaratory relief. Both parties appealed, defendants leave granted, to the Court of Appeals. The Court of Appeals reversed the partial accelerated judgment and otherwise affirmed the circuit court’s order. Romulus City Treasurer v Wayne County Drain Comm’r, App 663; 273 NW2d 514 The Court of Appeals held that of plain- because allegations tiffs’ conduct, of fraudulent the plaintiff treasurers’ standing to sue could not be denied- without a full evidentiary hearing. The Court also concluded that if fraudulent conduct on the part of the defendants proved, could be the claim would not be barred by the statute It limitations. further held that since the Tax Tribunal lacked equitable jurisdiction, this case was properly brought in circuit court.

This Court granted leave to appeal and asked the parties to include within the issues to be briefed question the "whether Michigan Tax Tribunal is the forum in only which relief can be sought for illegal allegedly drain tax assessments”. 406 Mich 976 op the Court

II A is being heard and decided This case was Novi, ante, raise cases Wikman p 617. Both Tax Tribu- scope of the questions concerning spe- involve exclusive and both jurisdiction, nal’s case, in this how- assessments. The cial made in ever, make were not allegations alia, inter contend, the defen- Wikman. They collecting money most of dants have been for drain commissioner’s needed the defendant assess- expenses through special administrative money presently and that procedures, ment earmarked being similarly held in escrow has been This, contend, constitutes expenses. such not pass need on merits constructive fraud. We whether contention; only this we need consider considered by claim may properly this is a its acting equitable jurisdic- court within a circuit tion. claim of constructive fraud

Plaintiffs’ Wikman differs from the claim case according were not levied bene- assessments of the claim con- present fits received. The focus perti- of the underpinnings cerns not factual assessments, rather funds nent but how collected assessment laws pursuant special funding Any conclusion as whether spent. administrative through assess- costs procedures ment constitutes constructive fraud involve and a statutory would both construction equitable of the of construc- consideration doctrine Wikman Thus, point on directly tive fraud. provisions reconsideration of the Tax is necessary. Act Tribunal 1982] Romulus Treasurer Comm’r Opinion op the Court 7.650(31)provides: 205.731;

MCL MSA "The original jurisdiction tribunal’s exclusive and shall be:

"(a) proceeding decision, A for direct review of a final determination, finding, ruling, or agency order of an relating assessment, valuation, rates, special assess- ments, allocation, equalization, or property under tax laws.

"(b) proceeding A for refund or redetermination of a tax under property tax laws.” that, The tribunal was created to exercise such jurisdiction "quasi-judicial agency”, was labeled a 7.650(21), membership MCL whose comprised persons specified is to be qualifications. with various members,

Of the seven two must be attorneys experience either tax judicial quasi-judicial matters or in office. MCL 7.650(22). 205.722; MSA One member must be a experienced professional assessor; one, certified appraiser; public one, real estate a certified experience accountant with in state-local tax mat- ters. Not more than three of the seven members any professional are to be members one disci- pline persons any who are not members disciplines required the enumerated are to have experience in state or local tax matters. expertise of the tribunal members can primarily questions concerning

seen to relate underpinnings the factual of taxes. In cases not involving special assessments, the mem- tribunal’s bership well-qualified disputes is to resolve the concerning Legislature those matters that the has placed jurisdiction: within assessments, its valua- equalization. tions, rates, allocation and In competent cases, assessment the tribunal ascertain whether the assessments are levied ac- 413 Opinion of the Court Although

cording received. to the benefits making determinations, make will tribunal, its 7.650(51), 205.751; MSA law, MCL conclusions jurisdiction under MCL its matters within 7.650(31) clearly relate to the most 205.731; MSA proper clearly to the tax, much less for a and basis may col- the funds once made of be uses concerning funds col- how the Questions lected. impli- appear expended to be do lected disputes assessments, valua- related to cated ques- equalization. The tions, rates, and allocation juris- presented the exclusive here is whether tion ques- extends to such the Tax Tribunal diction of pursuant funds are collected when the tions special assessment laws. injunctive declaratory relief

As to the question sought plaintiffs, conclude that we may pay administrative the defendants whether pur- expenses collected with funds that have been procedures special suant assessment proceeding review of a not "a for direct drains is finding, ruling, determination, or decision, final * * * relating agency assess- order of * * * property tax laws”. Divesti- ments under the accomplished except jurisdiction ture of cannot be Atlas Indus- under clear mandate of law. Leo v (1963), tries, Inc, 370 Mich 121 NW2d Reeder, 527, 532-533 Be- Crane v expenditure questions as to the lawful cause do within the other matters within funds not arise jurisdiction, the tribu- the tribunal’s and because directly expertise to other more nal’s relates much challenged questions concerning the lawfulness special assessments, cannot assume that we Legislature the circuit court intended to divest grant declaratory equitable jurisdiction its Comm’r Romulus Treasurer v Drain op the Court involving appropri- relief matters injunctive guise spe- ate use of funds collected under laws. cial assessment

While we are unable to conclude that subsection (a) 7.650(31) prohibits of MCL relief that declaratory injunctive case, seek in this remains whether question (b) preclude subsection would the circuit court ordering from the funds in escrow re- (b) turned to landowner-plaintiffs. Subsection provides the exclusive and original jurisdic- tion of the Tax Tribunal proceeding includes "[a] for refund or redetermination of a tax under tax Similarly, laws”. MCL 7.650(74) provides: right "The any sue agency for refund of taxes other any than by proceedings before the tribunal abolished as of September However, 1974.” scope provisions these questions and the plaintiffs have raised concerning the Legislature’s power so to proscribe the jurisdic- tion of a court of need not be addressed at stage these proceedings. As will be dis- below,4 cussed if the plaintiffs treasurer are found to have if standing, and they are found to have justifiably withheld from the the monies county escrow, presently a consideration requests of landowner plaintiffs for repayment of the mon- ies in escrow would be within the circuit court’s jurisdiction.

Ill Defendants contend that the treasurer lack standing treasurers, to bring this action. The having no financial stake in the outcome of this

4 IV, part See infra.

740 Mich Opinion op the Court standing litigation,5 on their claim of base public of their offices. Defendants trusts and duties argue for stand offices cannot be bases their ing ministe officeswere the duties of their because pay county col treasurer the taxes rial: lected from the statutory authority, is no

drain There assessments. argue, by defendants township city ac can treasurers review county Plaintiffs drain commissioner. tions challenge defendants’ assertion do ministerial.6 offices in this case were duties their proposition cite three cases Plaintiffs public can maintain a commen that a official suit public trusts See with his or her and duties. surate Mayor of v Retirement Board Dearborn Dearborn (1946); Trustees, 18; 23 315 Mich NW2d George Co, 82 & M R R Auditor General v Lake (1890); County 426; 46 NW 730 Berrien Bunbury, Treasurer 7 NW saying are these Defendants correct quite are from the situa cases tion. all different instant jeop The treasurers do assert their bonds would have been However, bring had ardized required faithfully failed to this action. the bond township will for a treasurer is to assure that he or she truly discharge "faithfully duties of the office law, pay according moneys come account over to all which 41.77; into the treasurer’s hands as treasurer”. MCL MSA 5.69. While conclude, below, extraordinary we may in a treasurer circumstances performance statutory be excused from the of duties and challenge standing county have sioner, commis to of drain actions imply duty we has a to take such do not a treasurer Certainly, provided 280.264-280.265; responsibilities action. in the the treasurers’ as any duty. Drain Code do not establish See MCL such MSA such a Because we can see no basis from 11.1264-11.1265. which duty arise, agree give would them a we do not treasurers’ bonds litigation. financial stake in this pertinent following provisions defining cite as Defendants 265, 263, township supervisors of duties of the Drain and treasurers: §§ 280.265; 280.263; 11.1263, MCL Code of MSA MCL 11.1265, 11.1303, 41.76-41.78; MSA MSA and MCL MCL 5.68-5.70, 211.54; MSA MCL 7.98. Romulus v Drain Comm’r Treasurer Opinion of the Court Mayor mayor’s Dearborn, duties, In specified city preparing charter, in the included administering budget. the annual He consid- provision ered one that had been included budget by city illegal, council and he city veto, vetoed it. When the overrode his he sought declaratory judgment legality. on its This bring capacity Court found that he had the such by public a suit virtue of the trusts and duties his office. recognized capacity public

This Court also public officials to sue commensurate with their trusts and duties Auditor General Lake George & M R R Co. The suit was based on certain provided statutes which that the Auditor General was to assess and collect taxes from the railroads any pay and that if refused to the State Treasurer give companies was to the names of such Attorney General, who was to file suit to collect brought by them. Court held that a suit This * * * * * by*, "Auditor General direction [the] Attorney adequately General” satisfied the statu provisions. tory Similarly, Bunbury, the Court county pub concluded that a treasurer, within his lic duties, trusts and that, could sue on a bond pursuant obligee. statute, named him as the standing In cases, expressly these while was not granted by city Mayor statute, charter in standing implied Dearborn, was the duties and obligations expressly that were stated. The trea- surer tory in the instant case assert no statu- obligations imply duties or their stand- ing. Thus, capac- these cases do not establish their ity challenge county the actions of the drain commissioner. 413 Mich 728 Court one is, however, from which authority

There in standing present will be conclude that instances, this In two extraordinary circumstances. to to issue a writ mandamus refused Court has of their township officers compel performance In Huron assessing a tax. duty ministerial Twp Supervisor, Drain Comm’r v Chandler County Court, (1892), in 278, 279; 51 NW 90 Mich mandamus, "The proceed- stated: refusing grant could be legal that no drain being so defective ings in wrong in the out, supervisor was not laid also the tax.” The writ was refusing to assess Supervisors Board of Cheboygan County refused in 386; 54 Twp Supervisor, Mentor 94 Mich NW v (1892), a county passed in board through would be collected $2000 resolution obtaining poor- a purpose assessments for the money intent was to use the actually house. Their securing a location for a illegal purpose of for the Court, peti- in denying county’s tannery. townships compel for mandamus tion rolls, noted that the assessments on their spread further stated: discretionary, the writ was petitioner present in the case was "The action of the fraudulent, willfully but only intentionally not was criminal, rights gross outrage upon the and a tax-paying citizens. would, judgment, reproach upon "It my be a case, were,

law if of this courts under the circumstances mandamus, compelled compel stances must be thereby to issue the writ of imposition The circum- of a fraudulent tax.

exceptionally extraordinary which will justify supervisor refusing comply with his statutory duty, case were respondents think but we doing.” 388. justified in so 94 Mich Smith, In Scholtz v 634, 635-636; 78 (1899), brought aby NW 668 a mandamus action Romulus Treasurer Drain Comm’r Opinion op the Court against township drain commissioner county this Court circum- supervisor, reiterated the be to extraordinary justify stances must town- ship perform official’s refusal ministerial duties: supervisor held that the is with

"We have not vested judgment upon the to sit in of authority the action When, supervisors. board in the of exercise of their authority, spread, tax it they lawful order a to be is his it, regular duty the spread and not block the course of public may because think business refusal he should differently. the board have decided Nor is it part supervisor duty of the official of to sit in judgment upon jurisdiction proceedings, drain which are within the another If

of officer. his ideas of the suffi- papers ciency petitions proceed- of and other in drain ings, and the rumors come to his ears about irregularities, and of his notion time taxes completion should be laid with to the of reference drain, be to justify are to held sufficient a refusal to spread duly-constituted a tax which the authorities spread, public have ordered business in connection with seriously drains will be embarrassed as as soon * * * rule, generally fact becomes for a and attempting known. As a is safe public law, obey officer to the commands of the perform him, upon imposed duties without irregulari- find an for refusing excuse in others, proceedings ties in the he which has nothing to do. "* * * prevailing opinion in [Cheboygan County The Supervisors, supra] Board of admits that circumstances must extraordinary will justify which a refusal perform officer to a statutory duty, and the refusal to grant the writ that case ascribed exercise of a lawful discretion.” O’Meara, See also Laubach v 107 64 NW (1895). clear, It is altogether perhaps, whether decisions in Cheboygan County Supervi- Board of sors Comm’r, Huron County should be [July- 413 Mich Opinion of the Court this Court in which instances simply

classified duties the clear to enforce refused discretion its officials, are instances whether public re- actually circumstances extraordinary duties. statutory of their officials public lieved of cases in which because arises uncertainty duty that where has held this Court in its certain, cannot the Court official public Finance Comm Municipal the writ. deny discretion Education, Dist Board Twp School Marquette v Hamilton (1953); 639, 644; 60 NW2d 337 Mich State, 31, 42; 179 NW Secretary how- given, the classification Regardless allowed have ever, circumstances extraordinary unfulfilled that otherwise go ministerial duties Cheboygan County See fulfilled. have been would supra. Supervisors, of Board actions in commissioner’s drain If the defendant present be deemed to could the instant situation circumstances, for manda- petition a extraordinary pay treasurers to township compel mus to spe- these to pursuant the funds collected county denied. properly have been could cial assessments de- have been properly could And if mandamus the treasur- nied, to refuse good see no reason we in of challenge a court to opportunity ers have excused the actions that would equity words, if the In their duties. other performance of would such that the treasurers circumstances are their duties compelled perform have been to have they taxes which county paying collected, precluding for good there is no reason court of instructions from a seeking them from to done with ought to equity properly as what whether question the funds that hold. The they can seemingly exist circumstances extraordinary as well a court of be determined as Thus, con- action. we this Court a mandamus Romulus Treasurer v Drain Comm’r Opinion of the Court extraordinary exist, if elude that circumstances a township challenge standing treasurer has to county actions of a drain commissioner.

Contrary assertions, not, to defendants’ conclusion, we do reaching give city license to township city, county, school, treasurers to withhold highway they sewer, and taxes whenever feel that governing body illegal. the actions of the local are truly extraordinary The circumstances must be township city standing treasurer have challenge county officials, actions and suffi- pleaded cient facts need to be to show such circum- Attorney General, stances. Shavers v 554; 267 NW2d allegations plain-

In the instant case, in the complaint tiff treasurers’ are sufficient to overcome judgment. defendants’ motion for accelerated If plaintiffs prove allegations, their will show expenses that most of the of the defendant drain office, commissioner’s which amount to several years hundred thousand dollars for the 1975 and guise being 1976, have been collected under the special appears assessments for drains. This to be egregious an misuse assessment procedures § contained 196 of the Drain Code 1956; it misleads landowners use what being they pay, made of the assessments county responsibility removes from the through general needs to meet taxation. The trea- opportunity surer are entitled to prove extraordinary the circumstances that alleged. have

IV may properly previously We now the consider . question plain- deferred whether the landowner 413 Mich 728 Court of the money presently of the a return request tiffs’ within the exclusive is matter held in escrow MCL Tax Tribunal virtue of jurisdiction 7.650(31)(b) MCL 205.731(b); MSA 7.650(74). discussion, it is preceding From the MSA circumstances extraordinary under apparent required not be township or treasurer city If in- the his her ministerial duties. to fulfill circumstances, as to presents such so stant case county of the from justify withholding escrow, will need to now in the circuit court funds should done with the funds. We determine what that, if the have been conclude funds escrow the land- justifiably county, withheld from the funds should be claim that plaintiffs’ owner of defendants’ constructive them because repaid not a tax refund within the fraud is a claim for of the Tax Tribunal. jurisdiction exclusive by holding do not reach this conclusion We in- supersedes Legislature’s jurisdiction equity Rather, of the Tax Tribunal. jurisdiction tended has not shown a Legislature we believe that intent abolish the circuit court’s clear jurisdiction plaintiffs’ to consider claim to In funds escrow. accordance with settled jurisdiction cannot principle divestiture accomplished under clear mandate except Industries, Inc, Leo v law, supra, Atlas Crane Reeder, supra, presume we will not intent expressed. clearly Although arguable 7.650(31)(b) 205.731(b); MCL MSA and MCL 7.650(74) 205.774; apply could because funds were as purported special escrow collected assessments, a return of the funds from this es- tax crow would not be a refund typical account and to it as lead to an likely treat such would anomalous If result. the circuit court determines 747 Treasurer Romulus Drain Comm’r op Opinion the Court the funds escrow were properly withheld from the county, principles then of equity may dictate that the funds should be returned to those so, paid who them. If the court would be in an position intractable if such relief were deemed to be a tax refund over which the circuit court had jurisdiction. Rather, no the rule that will equity grant complete applicable relief is here. Wayne Prosecuting v National Attorney Memorial Gar- dens, Inc, NW2d The Tax Tribunal Act prevent does not a court of from determining what should be done with funds extraordinary circumstances have been properly withheld from the county.

Therefore, because in the present posture of this case it possible is not to determine the funds in escrow were improperly withheld from the county, we cannot conclude that the landowner plaintiffs’ request for a return of mon- the escrow ies is a proceeding for a tax refund within the meaning of either MCL 205.731(b); MSA 7.650(31)(b). 7.650(74). or MCL

V The defendant also asserts the action is barred 30-day statute of limitations.

statute, in pertinent part, provides: "No suit shall be any instituted to recover drain tax * * * brought unless days within 30 from the time of' * * * payment or procedure the same observed may required general tax law.” MCL 280.265; MSA 11.1265.- This action was not commenced 30 days within from the time of payriieiit. op the Court that, agree at this defendant do not

We held proceedings, can be stage the statute these previously, the plaintiffs’ As stated claims. to bar plaintiffs seek landowner from which fund justifi- to have been be found reimbursement county due to the extraor- ably from the withheld juris- so, If the dinary case. of this circumstances grant complete relief to of a court diction of according prin- what, to to determine allow it will equity, ciples the escrow done with should be of account. controlling deter- doctrine when

Laches is plaintiffs’ mining the landowner of the timeliness they funds in escrow to the are entitled claim Al- fraud. constructive of defendant’s because analogous though of statutes look to courts will determining of the timeliness when limitations proceedings, equitable and not is laches claims.7 bars stale limitations which statute of question defendants, plaintiffs, of as address as well Since limitations and of the statute of this action terms the timeliness of not 600.5815; laches, 27A.5815 MCL MSA whether neither address claim. That assert to bar this applies that defendants to the limitation period statute, prescribed pertinent, provides: of limitations "The as equitable legal is apply equally or relief to all actions whether shall sought.” 600.5815; necessarily decide do not MSA 27A.5815. We MCL limitations”, period MCL "prescribed to which of whether refers, only con 600.5815; limitations includes those 1961 PA 236. Even MSA 27A.5815 if Act of tained in the Revised Judicature apply in MCL to the limitation contained statute were to the above 11.1265, present 280.265; that the action it is not at all clear Although drain drain tax”. be considered a "suit to recover [a] should assessments that fact alone MCL vindicated dissent in Consumers Power Co account, presently disputed escrow are the source of the necessarily case is within does not mean that in his now Justice Smith MSA 11.1265.A statement Muskegon County, 346 v (1956), 243, 253; apropos: is NW2d taxing overpayment, simply us an "What we have before arithmetical, fact, authorities, arising mutual of an out of a mistake clerical, say categorize, the law of we would error. Were we to involved, primarily mistake is not the law taxation.” 151; Co, Spoon-Shacket County, Mich 97 NW2d Inc v Oakland See 25 so (1959).Similarly, plaintiffs’ is not in this case the landowner claim they have much suit for a tax refund it is a claim 1982] Romulus Treasurer v Drain Comm’r Opinion of the Court Taylor v S S Kresge Co, 65; 332 Mich 50 NW2d 851 (1952); Tilley Brady, 36 NW2d 140 statutory period to defendants assert applicable analogous bar this claim is not as an apparent purpose statute of limitations. The period of limitation is to allow counties the drain use taxes that have collected necessity waiting prolonged pe- without riod time ascertain the extent which the challenged. will case, assessments In the instant plaintiffs prove allegations, if their funds county escrow which the has never received will justifiably be shown to been have withheld from county and, furthermore, will be shown never to have been intended for the drain construction repair designed pro- that the limitation was Thus, tect. we cannot now determine that statute of limitations which defendants assert pertinent question bar this claim is of laches this case.

VI Although challenge defendants also the land- plaintiffs’ ability bring action, owner a class yet question. trial court has not addressed this remanded, Because this case will be we see no prior need to address it to a decision that court. We affirm. being public costs,

No this a question._ alleged interest in the escrow account because of constructive part Therefore, fraud on the of the defendants. even if MCL (so applies MSA 27A.5815 to the Drain Code limitation question laches, analogy, would not be of one as in a consideration question applies but rather a of whether the Drain Code limitation case) directly to 30-day this we would conclude that limitation applicable. the Drain not Code is 413 Mich 728 Levin, J. Moody, Ryan, Fitzgerald, and Blair Williams, Coleman, C.J. JJ., Jr., concurred (concurring). Plaintiffs commenced Levin, J. action, aside a drain assessment to set 1976, paid for refund of amounts has drain commissioner assert a equity. They drainage pay to reassess a district authority no his and that expenses of office the administrative are levied this case therefore the assessments illegal. Novi, ante, case of Wikman companion

In the Tax whether p today, decided we consider jurisdic- on the Tax Tribunal Tribunal Act confers levying special from a decision tion of an appeal case, would, in that hold that We assessment. jurisdiction circuit court retains because levied, under tax "property not assessment rather, laws”,1 but, authority of the laws under the powers of local units of municipal which define the government. question

In the instant case the whether dispositive. is not jurisdiction Tax Tribunal has within Because this action was commenced a refund obtaining are barred from days, and the provisions under both the Code Act, Tax if can only Tribunal can succeed re- applicable avoid limitations ordinarily bringing fund actions or themselves proceedings by overriding equitable within an doctrine.

We conclude that should be remanded cause jurisdictional provides: statement the Tax Tribunal Act original jurisdiction "The exclusive and be: tribunal’s shall "(a) decision, finding, proceeding A for direct of a final review assessment, ruling, determination, valuation, agency relating or order of an allocation, rates, assessments, equalization, or un- property der tax laws. "(b) proceeding A under the for refund or redetermination of a tax 7.650(31). tax MCL laws.” Treasurer Comm’r Romulus Opinion by Levin, J. because, principles applied for trial under by this in litigation Code, Court the Drain respecting plaintiffs may equitable obtain relief although did statutory procedures. not comply can, also conclude that We afford com- relief, plete order a refund.

I The Drain Code authorizes the reassessment of a drainage district for cost of mainte- necessary repair nance and aof drain installed.2 previously question, pertinent part: in At the time Drain Code read in * * * (1) inspections 196. "Sec. Whenever such disclose the [annual] necessity expending money repair any of for the maintenance and of order, keep working commissioner, drain order to it in the drain drain, board, county drainage case of a or the in the case of an drain, intercounty exceed in petition expend without an amount not to year per any or $800.00 mile fraction thereof or of 2% the original cost the drain and of of extensions thereof for 2% mainte- repair any necessary nance and of drain. Whenever it shall found by drainage expend drain commissioner or the board funds in per original $800.00 excess of or mile fraction thereof or of the 2% year any cost the drain and of extensions thereof in 2% for drain, repair any maintenance and not be number of such additional amounts shall expended approved by until not less than total 50% legislative public corporations, bodies of all such within or partly drainage within the district. "(2) belonging pay In case the fund to the section, drain is sufficient to any by work authorized this the drain commissioner or drainage drainage board shall reassess the therefor district ac- cording received, to beneñts shall reassessment be made and spread upon city township years or tax roll assessment within completion work, inspection from the case total expenditure of the freeholders per is more $800.00 than mile or fraction thereof or 2% original thereof, cost of the drain and of extensions all 2% subject to assessment shall notified such assessment by publication newspaper general in a circulation within the drainage and address by person district and first class mail to whose name each appears upon city township the last or tax assessment owning drainage as roll land within the district. An affidavit of mailing drainage by shall be made the drain or commissioner chairman of the proof board which shall be conclusive the notices required by this section were mailed. failure to receive such invalidating jurisdictional notices mail shall not constitute a defect proceeding tax, publication a section were required by drain if notice complied emergency with. exists Whenever condition 413 Mich 728 [July- by Opinion Levin, J. im- Drain Commissioner Wayne County

Defendant by owned property such a on real posed levy Boiler, A. Kraft and others. Curt Paul in their this action and Kraft commenced Boiler similarly of others own interest and behalf action, the reas- asserting situated as a class the Drain Code authorized sessment was not repair and but not maintenance because was expense the to funds to administrative provide pay Commissioner, and the of the Drain of office was of Commissioners Board Wayne County the There expense.3 funds for such obliged provide health, property endangers public crops within their or which respective may expend to the limitations repair.” drainage districts, board commissioner or the the drain subject chapter any contemplated in this funds for work provided for maintenance and in this section MSA 11.1196. MCL General, request 22, 1974, responding Attorney April to a On senator, special opinion a assessment stated that in his from a state may provisions "for of 196 of the Drain Code under the § not be levied assessing clerks, engineers stenographers, yearly and the services "only department maintenance and provisions section” and that under the said assessed”, "[h]owever, repairs the admin- to be [are] making expenses the assessment authorized incurred in istrative (The officially opinion may is not section be included”. under this reported.) that, nevertheless, County Wayne of Commis- appears Board It funds, requisite appropriated that the and not have sioners Legislature responded of maintenance or administrative and drainage approved by enacting "costs PA 344 which defines clerical, expense requires repair” and engineering employees or a drain commissioner 344, county general paid fund. Act from the board be effect, 1976, the follow- immediate adds December ing to 196: § subsections section, repair "(5) or purposes the costs of maintenance For of this working maintaining order to the drain in include the costs of shall continue a necessary pumping equipment water, repair including servicing or of of normal flow of therefor; charges utility the cost and siltation, obstructions; rubbish, debris, or keeping the drain free from portion repairing drain to continue the or all of a tile or the cost of water; When the other costs associated therewith. flow of and normal utility charges, repair of drains includes maintenance and cost of limitation drain commissioner assessments sufficient except repair apply that the shall for maintenance drainage may levy sufficient board or utility charges pay not more than the amount but charges. pay those clerical, fringe "(6) salaries, expenses, adminis- benefits Romulus Treasurer v Drain Comm’r Levin, J. 60,000 taxpayers are over in the affected class and the amount involved for each generally $1 $2 per year. township city joined

Plaintiffs treasurers asserting protect complaint, may, owners from unauthorized reassess- ment, paying refrain from defendant Wayne respect Treasurer amounts collected in County challenged levy. The circuit court dismissed class action brought grounds Boiler and Kraft on the by that jurisdiction the Tax Tribunal has exclusive tax 4 refund claims and that the claim is separately a provision barred of the by Drain Code requiring that a refund action be within brought 30 days.5 held, however, The court that and city town ship standing treasurers had to maintain an action for a declaratory judgment injunctive and relief. The court ordered "special the 1975 and 1976 taxes”, drain assessment which had held been in treasurers, escrow township by city deposited in a escrow account or accounts with the Wayne County clerk. It appears upwards $400,000 being held escrow.6

The of Appeals Court with circuit agreed trative, engineering employees of the drain commissioner or drainage working operation, repair, board incidental or mainte- chargeable paid budgeted nance of a drain shall be to and from the county general chargeable by revolving fund and not to or the drain 280.196; fund.” MCL MSA 11.1196. 7.650(31). 205.731; See MCL MCL MSA 11.1265. 6The defendants state that the amount contested for 1975 is $266,048.79. opinion judge dissenting Court of Appeals $400,000 by plaintiffs-trea "At states: issue is over collected being pending disposition surers which is now held escrow this case”. Levin, J. equitable declaratory

court that an action could maintained but reversed injunctive relief if the stating its dismissal of the refund claim prove allega- owners could their plaintiff property tions would be entitled to a refund.7

II the reasons set forth in Wikman essentially For Novi, ante, Tax Tribu- p decided today, forth in jurisdiction. nal does not have As set Wikman, the Tax has jurisdiction Tribunal ad valorem taxes for- appeals respecting to review the State Tax Commis- merly subject gener- under the Drain Code are sion. Assessments derived”8 principle based on the "benefits ally ad valorem.9 The State Tax Commis- and are not responsibility any supervisory sion has never had of a drain commis- respect to the functions board nor has it ever had drainage sioner or of a from a drain appeal to review an jurisdiction any assessment. it would not be consistent

We also observe Legislature finality and simplicity special procedures sought by prescribing to achieve assess- limited review of a drain providing for are now ment,10 that drain assessments to hold 7 Comm’r, County City Wayne 86 Mich Romulus Treasurer v (1978). App 273 NW2d 514 8See, 280.152; e.g., MSA 11.1152. MCL 9 Oak, 451, 456; Royal 692 70 NW2d Cf. Foren v 10 11.1088, 11.1072(1), 280.88; 280.72a; MSA MCL MCL MSA See 11.1122, 280.122; 11.1106, 280.106; MCL MSA MSA MCL MCL 280.122a; 11.1123, 280.125; 11.1122(1), 280.123; MSA MCL MCL MSA 11.1151, 280.155; 280.151; 11.1125, MCL MSA MSA MSA MCL 11.1158, 280.158; 11.1157, 11.1155, 280.157; MCL MSA MSA MCL 11.1191, 11.1161, 280.191; 280.161; MSA MCL MCL MCL 280.243; MSA 11.1493, 280.521; 280.493; 11.1243, MCL MSA MCL MSA 11.1532, 280.563; 11.1521, 280.532; MCL MSA MSA MCL MSA 280.581; 11.1577, 280.577; 11.1563, MSA 11.1581. MCL MCL MSA 755 v Drain Comm’r Romulus Treasurer Levin, J. de an independent, original, to review in subject Tax novo in the Tribunal.11 To so hold proceeding Wikman, would, in set forth eliminate safe- provided guards against unjustified litigation Code would tend to liti- encourage the Drain and prolonging the time before bonds gation, thereby can projects adding to fund drain be sold and cost. project

Ill The Drain Code12 and the Tax Act13 Tribunal require challenging both that actions assessments be within brought days taxes 30 or less. Since was action not commenced within 30 days, would be barred —whether the Drain Code or the Tax Act governs plaintiffs Tribunal are —unless relieved, case, the circumstances of the instant compliance with the applicable limita- 30-day tion.

Because the are confronted with essen- proceeding original indepen "A before the tribunal shall be 7.650(35). 205.735; dent and be de shall considered novo.” MCL MSA 280.161; requires MCL MSA 11.1161 that a writ of certiorari issue days copy within ten after a final is order determination filed in the officeof the drain commissioner. 280.265; requires MCL MSA 11.1265 an action for refund days payment. instituted within 30 from the time of commenced, 7.650(35) When this action was MCL required petition days that a be filed within 30 final after the decision, ruling, determination, days or order or within 30 after the receipt billing (1976 tax; by 365), of a for a reason of amendment PA beginning 1, 1977, January jurisdiction the tribunal an dispute required "assessment” to be invoked later than June year involved, of the tax days all other matters within 30 after decision, ruling, determination, the bill except final or order that a tax may days mailing be contested within after for arithmetical errors or mistakes. Only appeal from an ad valorem assessment must or filed "not year later than 30 of June the tax involved”. If Tribunal, subject jurisdiction assessments are are to the Tax subject 30-day applicable time limit to "all other matters”. Levin, J. under the Drain kinds of defenses the same

tially Act, ques- the critical the Tax Tribunal Code Tax whether case is in the instant tion whether but jurisdiction has Tribunal time applicable complying are relieved limitation.

A broad, can while equity, a court of The powers circumstances. particular only be invoked power equitable where the situations Among has plaintiff where is a case exercised some action, because of but cause of recognized the com- affecting his cause circumstance atypical provide remedies do not procedures law’s mon complete relief. adequate or developed courts of which principles law are also of the common redress deficiencies statutory. law is the substantive applicable where inadequate, remedy statutory procedure If a of estab- application in the equity may court of provid- fashion a decree principles equitable lished show that proofs plaintiff’s the relief to which ing he is entitled. on case, rely no need to

In the instant there is substan- principles plaintiffs’ to establish equitable substantive plaintiffs’ tive claim. The source assert is the Code itself. Plaintiffs claim in excess the drain commissioner acted he when granted the Drain Code authority for the administra- drainage reassessed the district equita- invoke expense of his office. Plaintiffs tive procedural to overcome principles ble an effort (or Act Tax Tribunal limitations of the Drain Code a refund so burden applicable) if held to be 1982] Romulus Treasurer 757 v Drain Comm’r by Opinion Levin, J. recovery that would even if be barred action establishing right their substantive succeed question The here is recover. thus whether supply remedy, a should whether should right provide a of action.

B Spoon-Shacket County, Co, In Inc v Oakland 356 (1959), 151, 168; NW2d 25 this Court equitable principles provide invoked both a right remedy by a substantive statutory pealing and unburdened protesting ap- time limitations for and an ad valorem tax assessment. The assessment of subdivision lots was in- from $5,- creased between and each to $150 $400 mistakenly each because the assessor assumed improved. lots had been After the mistake discovered, was the lots were assessed for the following year at amounts less than one-tenth of $5,500 assessment. This Court characterized the mistake as constructive fraud and held that taxpayer "equitable the the was entitled to relief from pub- effect of

unconscionable crass mistakes of gross lic officials in taxation; the field of mistakes enough to constitute fraud”. noteworthy equitable

It relief was granted although Spoon-Shacket had failed to appear check the assessment rolls or to before the comply board review or otherwise to with statu- tory procedures Property The General Tax Act requiring, appeal paying if one wishes to without protest suing tax refund, under for petition be filed with the State Tax Commission. requires persons complain-

The Drain Code ing bringing of a drain assessment do so certio- Levin, J. provides— days14 within ten proceedings

rari Act of the Tax Tribunal provision similarly no "exclusive”15 —that making jurisdiction "[i]f its pre- time herein brought within certiorari to have been scribed, be deemed the drain shall legally established, taxes therefor and the legally the taxes drain and of said levied, legality in any questioned not thereafter shall therefor supplied.) equity”.16 law or (Emphasis suit at estab- provisions also contains Drain Code appor- appealing procedures lish to limit purport and which of benefits17 tionment injunctions.18 court to issue of the circuit power "[cjertio that has held Court nevertheless This under the drain remedy exclusive rari is not an a inadequate, is of certiorari remedy law. If the construction of a lie to restrain in will equity bill Drain County Patrick v Shiawassee drain”, 727 ’r, 342 Mich 257, 263; 69 NW2d Comm if a drain Patrick and other cases show 11.1161. 14 “MCL 15See fn 4. 16 fn 14. See procedure the drain law 1885 review was added to The certiorari attacking only Previously, a drain assessment 227. method for PA was a bill in See, e.g., equity injunction. PA 269. 1881 for the circumstances A number of decisions have held that in presented procedure method for was the exclusive case the certiorari

judicial Betterment See Detroit Beach review of drain assessments. Comm’r, 292; County 93 NW2d 355 Mich Committee v Monroe 922 (1924); 159; (1959); Stellwagen Dingman, NW 983 v 229 Mich 200 General, 491; Marquette 198 NW 199 226 Mich Pere R Co v Auditor Toledo, Round, (1920); 531; (1924); S 177 NW 985 Arnham v 210 Mich (1916); Twp Shafer, 89, 91; 712 Clinton & M R Co v 190 Mich 155 NW Gable, Teachout, (1907); 124; 150 109 Jones v v 150 Mich 111 NW 1052 191; 30; (1907); McElheny, 146 Mich Mich 113 577 Crandall v NW Brown, 382; (1906); 38 Twp 90 NW v NW 261 (1902). Swan Creek 280.155-280.156;

17 MCL MSA 11.1155-11.1156. 280.267-280.268; See MCL MSA 11.1267-11.1268. Romulus Treasurer Drain Comm’r Opinion by Levin, J. authority in commissioner acts in excess his imposing a drain assessment a court of will grant although complainant relief failed to bring proceedings. complaint certiorari Plaintiffs’ in the instant case reassessment of the although ostensibly district, for maintenance and repair, actually defray ex- administrative pense, is of the same character as the kinds complaints may which this Court has held brought equity. Patrick,

In Court concluded that the author- ity of the drain commissioner was limited to clean- ing original depth out drain to its and that he letting authority had acted excess of his enlarge deepen contract a drain and to take plaintiffs’ purpose, some of lands and that ap- clearly in "the circumstances of this case pears adequate that certiorari was not an reme- dy”. Heisler,

In Chandler v NW (1908), "although the Court concluded all the proceedings of the establishment of the drain regular open complaint and not on certio- comply rari” where there had been a failure to requirement with an additional not stated in the general way drain law "there would seem to be no protect rights complainant by except the of the present remedy” injunction the to restrain —an requirement construction until the omitted had complied been with. plaintiffs case,

In the also, instant the not are challenging "regularity” of the reassessment proceedings. Rather, Chandler, as in Patrick and they challenge authority of the drain commis- levy challenged sioner to assessment. 413 728 Mich

760 by Levin, J. Spencer, Land Co v Meyering In (1935), that since Court held 708; 263 777 NW for the "not constructed drains were purported sewerage pur- drainage, but for of land purposes juris- without commissioner was "the drain poses”, it”, an action to and that to establish diction maintained could be the drain assessment enjoin certio- bring failed to had although plaintiffs under the statute: proceedings rari proceedings must claim is made "The usual question This has by certiorari. have been attacked Spencer upon by this Court Clinton v passed been Cockerill, (1930)];[19] 135; 229 Fuller v Mich NW [250 257 Mich 35 (1932)];[20] Twp and Lake NW [239 (1932)].[21]I 241 NW 237 can add Millar [257 upon nothing was said these cases to what resorting to certiorari. It is question necessity of jurisdiction. no It is the necessary where there is jurisdiction has remedy if the drain commissioner sole proceedings, irregularities in the drain any to correct irregulari proceedings are set aside for when building not authorize the The Court held that the drain law did of a sewer. plaintiffs that if the raised "had The Court conceded issue proceeding merely irregularity to do the sole certiorari”. with matters of relative to such remedy by appeal in the nature of under the statute would be Recognizing remedy under the statute that "the sole certiorari”, granted by appeal would be in the nature of the Court equitable "wholly relief because the drain commissioner was without village. jurisdiction authority” to construct a sewer drain in a drain, authority lay Since he was without result of the drain tax process a sewer "the ultimate from assessment benefits and the collection deprive without due would be to them of their jurisdiction any sort”. The Court that this lack of reasoned prevent deprivation warranted relief in of a constitutional right. enjoined stating The Court construction of a sewer drain proceedings to establish a drain district were void. "The drain com jurisdiction any missioner had no construct a Covert road.” The Court observed that to construct a sewer more than rule is "[t]he irregularities proceedings errors and in drain must taken advan certiorari, tage jurisdiction but an be taken entire want advantage any (Emphasis supplied.) of at time". 761 v Comm’r Romulus Treasurer Opinion by Levin, J. ties, they go point back to at were regular proceed equity from there. The court of had jurisdiction.” plaintiffs’ complaint

The make allegations analogous instant case drain closely the sewer allege cases.22 Plaintiffs that what purported an for purpose assessment one was actually purpose. assessment another and unauthorized Cemetery Hill Co Ann Forest v Arbor, In 303 (1942), 56; Mich NW2d 564 enjoined 5 the Court remaining collection of installments as against exempt cemetery although sessments land plaintiff paid pro had earlier installments without test. The Court concluded since land was to be for the unpaid about sold assess ments, irreparable injury equita faced justifying ble from the illegal relief assessment.23

A complaint the amount a valid assess- ment has improperly apportioned been was not thought put in question authority of the drain commissioner to make the The levy. courts refrained generally disturbing apportion- from 22See, e.g., 135; Spencer, (1930); Clinton v 250 Mich 229 (1932); 609 NW Cockerill, 35; Twp Fuller v Millar, Spencer, 257 Mich 239 NW 293 v Lake 135; (1932); Meyering 257 Mich 237 Land NW Co v (1935). 703; 263 NW 777 example principle An precluded from is not taking jurisdiction quate statutory remedy when the "exclusive” is inade provided by injunction is the tax act. MCL MSA 7.168. Although flatly injunction stay the act states that issue to shall "[n]o proceedings act”, for the assessment or collection of this taxes under interpreted proscription the courts merely have a codification equity’s irreparable injury rule. injunction statute has thus been construed to mean shall "no issue”, statutory remedy inadequate. injunc unless the tax "[The prohibition. Injunctions granted tion is not act] an absolute 'irreparable injury’, case of see Manufacturers Bank of National Detroit, City (1938)], Detroit v 285 Mich 273 NW [280 hardship’, Wakefield, Sunday 'unusual City see Lake Iron Co v 323 332 of of Dearborn, (1949)].” Haggerty Mich 497 Mich City NW2d 470 [35 51 NW2d 290 413 Levin, J. assessing authority, made of benefits

ment enabling other Code or the Drain under whether persons appeared it long as legislation, acted arbitrar- had not making apportionment ap- Where presented.24 facts of the light in ily basis no factual however, there was peared, or of benefit benefit special of for a determination on the relief equitable derived, granted the courts evidence without assessment special that a theory constituted derived or benefit special benefit of law process due of without of deprivation had acted arbitrar- assessing authority in faith.25 ily or bad pronouncements, more recent one of its

In 2,No Drain Dist 375 County Blades v Genesee (1965), this Court held 420 683; 135 NW2d Mich proper- their plaintiffs assert that where proposed from a no benefit will receive ties question, project,26 sewage disposal drain and the drain fact, for solely is not although one decide, it can be re- and that commissioner there had although in judicially viewed The bring proceedings. certiorari a failure to been opportu- to deny Court declared that 24 Dickinson, See, Cockerill, Hudlemyer e.g., supra; 143 v Fuller v Teachout, (1906); 250, 256; Twp 150 Mich v 885 Clinton Mich 106 NW 256, 264; (1907); 124, 128; Hinkley Bishopp, 152 Mich 1052 v 111 NW Fellows, 66, 70-71; (1908); 134 NW 114 NW 676 1011 Troost v (1912). require provisions a broader of the 1963 Constitution now The apportionment Const scope judicial benefits. See review of the 6, 1963, suggest was Tax Tribunal 28. But that does not that the art § require an jurisdiction. not The constitution does intended to have independent, by original, Tax de novo determination. Review by the courts”. Tribunal "direct review 25 683; See, e.g., County Mich Drain Dist No 375 Blades v Genesee (1965); Fluckey Plymouth, 100 NW2d 358 NW2d pursuant sewage disposal system apparently authorized was Act, seq.; County Improvement MCL 46.171 et Public 5.2767(1) seq. et Romulus Treasurer v Drain Comm’r by Levin, J. nity judicial for a hearing would be "no more nor than less a denial of constitutionally guaranteed due process”. cases,

The foregoing decided under the Drain Code and predecessors, its illustrate that a statu- tory remedy may particular case be so inade- quate as to equitable justify intervention. While the Drain provided Code appointment, court, the probate of a board to review the drain apportionment benefits, commissioner’s it made the decision reviewing board final.27 And it provided review, while for circuit court the scope review certiorari is generally restricted irregularities appearing in the record. The statu- tory remedy provided drain law was inade- quate the foregoing cases because: (1) there was no provision for judicial review of the apportionment benefits, thus denying a remedy even in a case where the plaintiff could show that there was no support the record for apportionment and, the the accordingly, absence of any benefit.

(2) in certiorari the issue is limited to whether the proceedings were regular, and scope the of the review did not extend to issues that would not appear on the record such as improve- whether the ment was a drain or a Equitable sewer. interven- tion required was provide to a in meritori- remedy ous cases left unprotected by the statutory remedy.

C The remedy under the Tax Tribunal Act is generally adequate. review, The scope of in con- trast certiorari, to is broad and would cover all issues: irregularity, want of illegality, jurisdiction, denial of due or other process right. constitutional

27See, e.g., MCL MSA 11.1157. 413 Mich Levin, J. inade- remedy Tax Tribunal nevertheless

The on of several in the instant case account quate circumstances:

(i) filed the tribunal must be petition a could not have days; diligent plaintiff within nature of assessment by true learned roll or the examining subsequently the assessment bill,28 mailed tax

(ii) taxpayer, involved for each the small amount per year, to $2 $1

(iii) are mem- large persons number of who 60,000,29 of the class —over bers (iv) provide rules Tax Tribunal do actions,30 the maintenance of class (v) require the rules of the Tax Tribunal each fee filing property of a payment $50 owner.31 60,000 each members of class require

To counsel, to hire their own proceed separately, proceeding pay start their own and to $50 dollars, of a few would leave obtain refund such an protection against them without adequate unlawful a drain commissioner. exaction by where, the size of the

This is because of case class, involved for relatively small amounts owner, property impediments each plaintiffs allege received no the members of the class together with the ad notice of the reassessment was billed before tax, valorem and no notice that the monies collected for repair being defray maintenance were used to administrative expense they therefore did not drain assessment know that a actually purpose being authorized for one levied for another. was 29 say The defendants and Kraft seek that the class Boiler 60,036 composed owners, represent property that Boiler paid and Kraft $2.77 $1.82. 30 Twp, Calder v DeWitt MTTR authority fee. The tribunal is vested with the to set the MCL 7.650(49). AC, prescribed The fee is R $50 205.1115. Romulus v Drain Comm’r Treasurer Opinion by Levin, J. maintaining action before the an administrative (assuming arguendo tribunal Tribu- Tax jurisdiction), equitable nal has an action can maintained.

D 30-day The Drain Code’s limitation on refund 30-day actions, like the limitation in Tax statutory remedy Act, Tribunal makes the inade- quate ostensibly when drain assessment was purpose actually for one but for another. The cases previously discussed demonstrate that certiorari regarded adequate remedy has not been when the drain commissioner acts in excess of his plaintiffs, authority. case, in the instant are asserting this drain assessment im- was properly apportioned but rather that it was levied solely defray expenses the administrative office, drain commissioner’s drain commis- authority sioner is without purpose reassess subject and therefore were not may accordingly reassessment at all. Plaintiffs equitable regard proce- seek relief without dural limitations of the Drain Code.

E provide Courts are established to a forum in rights recognized the law can be vindi- right recognized by cated. A owner has a except not to law be assessed in accordance with authority conferred the statute under assessing body purports which to act. When procedures inadequate the established are to vindi- recognized right, equity permit cate will mainte- appropriate nance of the cause and fashion an remedy. saying statutory

We are not limitations 413 Mich 728 by Opinion Levin, J. bringing action, of and an on the restrictions brought requirements before an adminis- that it be bringing by a tribunal, it as can avoided trative be suggesting equity. we in Nor are class action remedy provide equity a and should intervene commonality or of issues a whenever there is part plaintiffs. mutuality We on the of of interest appropriate saying, case, rather, in an are where administrative the make the circumstances inadequate, remedy can be main- a class action tained.32 jurisdiction multiplicity of Equity to avoid a has often assumed join all equity’s that it could interested of innovations was suits. One parties controversy. action, dispose single It is established that of entire with one decree in a and may equity jurisdiction be invoked assertedly illegal an tax:

to contest had, course, separate of some these cases each land-owner "In all damages against legal remedy, by officer action for kind of enforcing the either collection, by or writ of certiorari to review the unlawful inadequate remedy was when com- But such assessment itself. comprehensive complete by the pared single and relief furnished with equity. in decree large jurisdiction much In a number has been carried further. "The often- has settled in well-considered and of the states the rule been highest ability repeated adjudications by character for courts brought by learning, equity when and a suit in will be sustained taxpayers co-plaintiffs, by any plaintiffs suing sometimes even joined more or one or number of situated, taxpayers similarly or all on behalf of account, suing by single taxpayer on own a his annul, collection, any enjoin to set and the enforcement and aside governmental every by kind of tax or assessment laid authorities * ** against objection urged judicial every *. In the face of sort of governmental taxa- with the and executive function of interference tion, uniformly legal remedy these courts have held that tax, against illegal by taxpayer dam- either action for individual ages, certiorari, wholly inadequate; perhaps by was and that would, instances, imperfect remedy him to restrict substantial denial of such most is, opinion, justice, my which conclusion equi- unquestionably true. The courts have therefore sustained these suits, relief, granted uniformly placed have and have table their decision the the jurisdiction upon to interfere inherent prevention multiplicity The result has demonstrated of a suits. complete given to an entire fact and final relief decree, community by judicial would otherwise means of one individuals, require litigation separate by an indefinite amount any Pomeroy, Equity by Juris- even if it were attainable means.” (5th prudence ed), pp 527-534. § It been has observed: Romulus Treasurer Comm’r Levin, J. that plaintiffs’ noncompliance Nor are we saying limitations statutory ignored time should be deciding grant equitable whether relief. In case, however, the instant had defendants been advised apparently Attorney General in 1974—33before drain the assessments now in suit the Drain were levied —that of Code did § authorize to provide not reassessment funds for expense. of It payment administrative not does appear the defendants have been prejudiced commencing the in by delay action or that the plaintiffs by should be barred the doctrine of laches.34

Nor do we wish to be understood as saying that can avoid statutory procedures by merely characterizing the illegal, defendants’ conduct as fraudulent or constructively fraudulent.35 areWe certainly things. “The action not class is a solution to all hope But in areas, least, cope. gives some at it is a breath of to It chance —a problem try scattered individuals with a to common instrument problem. particularly helpful and deal with their It has been for one today’s beleaguered groups most and disaffected consumer. It —the slingshot is a kind of better for the modern David tackle Goliath Co, (1973) Paley with.” Coca Cola 209 NW2d 232 J.). (Williams, 33See fn 3. 34Equity regard parallel legal will the statute of limitations aon guide applying laches, action as a in its own doctrine but statute of equity: limitations is absolute frequently appears “The courts refuse relief where it complainant, seeking permitted equity, lapse before the aid of of a period comparable appearing to the one in the statute of limitations. ordinary stayed Under suit circumstances a will not be analogous limitations, by laches before the fixed time statute of to, very nearly, quite up and the court will run if not the measure of but, statute, extraordinary the make if unusual conditions or circumstances inequitable prosecution briefer, it to allow the of a suit after a longer, period or forbid its maintenance a after than that fixed statute, extraordinary the court will determine the in accor- case equities dance Pomeroy, Equity with the which condition it.” 2 (5th Jurisprudence ed), 419a, pp § 173-174. equity may deny A court of relief because of laches where the plaintiff diligence. Equity Pomeroy, failed to exercise reasonable See 2 (5th Jurisprudence ed), 418-419. §§ 35"By as, constructive frauds are such meant acts or contracts 413 Mich Levin, J. rather, long line of Michi- in accord with

saying no or tax that where assessment authority, gan authorized, of equity court will whatsoever such an on against relief exaction grant generally In illegal. levy doing, was so ground assessing the action officer characterize or authority in excess his its acting body or fraudulent.36 constructively IV refrained from generally The courts have order- assessments found to have ing refunds drain compliance with the imposed absent illegally been apparent reason is that procedure. statutory paid generally collections are drain assessment promptly to holders of bonds floated over It not been improvement. thought for the has pay drain require commissioner appropriate plaintiff, or to reimburse a county its treasurer might in have possibly pro- instances who some general out of tax funds promptly, ceeded more The relief property from owners. collected other to the collec- enjoining has been limited granted unpaid tion of installments.37 case, however, In there be no the instant need on inappropriate imposition concern about an although originating any design or to actual evil contrivance persons, positive injury upon yet, perpetuate a fraud other are or [sic] persons, by tendency to to or other or violate their deceive mislead confidence, impair public public injure private or or inter- to or fraud, ests, equally reprehensible positive and therefore with deemed prohibited by and as acts are law as within the same reason mischief (14th Story, Equity Jurisprudence contracts done animo.” 1 malo ed, 1918), 368, p 349. § 36See, County e.g., Spencer, supra, v 151. Blades Genesee Clinton v Comm’r, supra, 694. 37 (1933), Cockerill, 405; Twp See Brooks v NW Norton County, NW 576 Oakland Romulus Treasurer v Drain Comm’r by Levin, J. generally. owners Plaintiffs will be able all to recover all the amounts substantially out of the escrowed funds without appropria- seek Moreover, general tion of tax funds. if the drain did of his commissioner act excess authority for the levying assessment administrative ex- penses of his office and the of paying burden expense imposed by law on the defendant board commissioners, might board then have obligation appropriate to funds pay such ex- case, If pense. that be the of general use tax might funds make a refund well appropriate. A court of will ordinarily jurisdic- retain grant tion to relief.38 It complete will not merely enjoin future misconduct but will enter a judg- damages past ment caused In misconduct. decree, fashioning a the court will consider rights parties, of third especially those who may also be of wrongdoing. innocent In the instant case, in contrast cases where this Court refund, declined to rights order of third parties do not intervene. person No innocent of wrongdoing would be harmed ordering refund or, indeed, escrowed funds if it is determined the Wayne Board County of Commissioners should have appropriated funds to pay administra- tive expenses, by ordering a refund payable out of general tax funds. does, indeed,

The Drain Code require payment protest under suit days. within 30 pro- Those cedural provisions are designed protect treasurer, who at one time personally was liable refund collected, amounts unlawfully so that he will know whether to withhold from payment (5th Pomeroy, Jurisprudence ed), Equity § 231. Mich Levin, J. is allot- money or others to whom

bondholders only valid limitations are procedural ted. Those pro- due deny procedural do not they insofar a from cess; equity court preclude do appropriate an adequate remedy an providing case. offended by well be process may

Procedural due owner to property which a requires a limitation protest illegality inform himself of and to records public on the face appear does not to him. mailed available or statements readily imposed payment late are penalties Substantial tax It is ad valorem property an bill. unrealistic of a payment to withhold bill a expect taxpayer for, he investigates apparently while say, $750 charge.39 bona fide $2 rest decision constitu- is no need to

There empowered is A court of tional terms. renders limitation which procedural override where, as inadequate at least statutory remedy justi- is in circumstances here, noncompliance parties nor third fied and neither defendants the Court’s failure en- prejudiced by would be force the limitation.

V go-be- and are city township The treasurers in the tweens drain assessments. system drain commissioner levies the drain assessment owner; upon township property city treasurer collects the assessment over pays township county city treasurer. The small, per taxpayer relatively 39 Because the amount reassessed homeowner, per together apparently $2 it is with the $3 billed tax, paid levy generally ad as a matter valorem would paid. ad of course when the valorem tax is 771 1982] Romulus Treasurer v Drain Comm’r Opinion by Levin, J. that it would be a breach their treasurers insist trust for them to deliver the public duty and they drain revenues which have collected disputed Wayne County to Treasurer. the that the and city The defendants’ contention township standing do not have should treasurers alongside be appraised their contention Boiler Kraft this as a and cannot maintain action class contend, effect, action. Defendants be wrong complaint asserted in cannot effectu- ally presented adjudication. judicial sys- The provide tem not so it bereft cannot protecting vindicating effectual and means of fully right recognized a by law.

If, hold, as we would Boiler and Kraft can action, important a maintain class becomes less township whether treasurers should city be retained as parties plaintiff.40 40 city township perform purely The treasurers a ministerial Code, collecting function under the Drain the drain commissioner and the amounts assessed paying money county over to the 280.264-280.265; 11.1264-11.1265;Hillyer treasurer. See MCL v Twp, 644; (1897);Taylor Twp, 619 Jonesfield NW v Avon 604; They 73 Mich 41 NW 703 would not be liable on their paying money treasurer, county “bonds for over to the because they simply performing statutory duty. would their Nevertheless, if it were be decided that this action cannot be action, as obliged maintained a class then the Court would city township consider whether a or required pay treasurer is over he, money from good faith, unlawfully has believes been exacted citizenry did, may, petition or whether he in effect a court for instructions. holding city township Cases interpose or treasurer judgment regarding his lawfulness a drain or assess- right duty ment or has no pay to do more than collect and over or obliged pay money that he is over the county treasurer when collected, necessarily preclude seeking do not instructions where there regarding is a substantial issue the lawfulness of the assessment. recognizing public standing cases that a official has "commen- public distinguishable surate with his from trust readily and duties” are case: Mayor Board, In Dearborn Dearborn Retirement 315 Mich Levin, J. re- Appeals the Court affirm would

We for trial. mand Levin, J.

Kavanagh, J., with concurred mayor’s (1946), veto of a city overrode the council 23 NW2d declaratory judgment sought mayor appropriation, budget and the mayor appropriation. had validity This Court held as to the public But the trust and duties. standing mayor’s his commensurate supervisory public in that case included trust and duties and, power budget items budget: over he held a veto control over as the administrative administering directly responsible city, was head that, holding budget. while no was thus The Court budget legality standing question mayor gave to statute proper officer to do so. appropriations, he was the Co, 426; 46 George 82 Mich NW & M R R v Lake Auditor General complaint. (1890), When a error in the a technical involved 730 railroad taxes, general pay the auditor was its would not required attorney general to sue for collection. to ask the the statute General, by direction complaint the "Auditor case was filed in that complaint was Attorney held that The Court General”. of [the] standing general valid, had commen the auditor added that and then public trust and duties. with his surate 79, 84; Bunbury, 7 NW 704 County Treasurer v In Berrien to ensure (1881), township on his bond had defaulted treasurer Although the proper of tax revenues. and disbursement collection the statute did not authority give anyone sue to collect on the treasurer, bond, county who was named that the the Court held bond, standing it was commensu- obligee because must have on the public duties. his trust and rate with public note, however, only officers in this case the We complain wrong about it are position and to notice the asserted county township and the city The drain commissioner treasurers. wrong. charged owners Individual are with the treasurer have assessments, to monitor the use of drain an insufficient interest township City governmental finances. not familiar with and are happens position the monies what are in a to observe treasurers that collect. Moreover, township city treasurers true that the cannot be although county duty pay treasurer over to the have a they the monies applied unauthorized will be in an know that such monies Twp Supervisors Cheboygan County Mentor Board of manner. In (1892), Supervisor, held that 54 NW 169 this Court perform compel his a local officer to mandamus would not issue purpose. illegal statutory duty, further an when the mandamus would

Case Details

Case Name: Romulus City Treasurer v. Wayne County Drain Commissioner

Court Name: Michigan Supreme Court

Date Published: Jul 2, 1982

Citation: 322 N.W.2d 152

Docket Number: 62508, (Calendar No. 5)

Court Abbreviation: Mich.