39 Mich. 739 | Mich. | 1878
This is a certiorari to review certain action of the drain commissioner under the township drain law.
The case differs in some respects from Lane v. Burnap, ante, p. —1, but it teems with as many errors. The respondent’s counsel argues that it appears on the face of the record that Taylor is not justly entitled to prosecute the writfirst, because of laches in suing it out; and second, because he was a petitioner for the drain in question.
As in the case of Lane v. Burnap the record refutes the first position. The last proceeding by the commissioners was a supplemental report and which according to respondent’s answer to the writ at page 17 of the record was not made until December 21st, 1877, and the writ was taken out only nineteen days later. That the writ was ■not out of season is clear enough.
As to the second ground it is enough to say that the plaintiff must be supposed to have petitioned for legal
Only one or two of the numerous defects will be noticed. The “examination” upon the application, and which .is required to be had on notice, was fixed by the commissioner for June 10th, 1876, at the house of one Maples, and the only indication that any notice was given is found in a statement by Mr. Burnap in his answer to the certiorari. He sets forth a writing having no signature dated June 5, 1876, and being in the form of a notice for the “examination” in question on June 10th, and then adds: “ This is a copy of notice served on interested persons.” And this is all we have in the record to show that any notice was given. If in fact this writing was served on the very day it was made, it was not lawful notice. It was without signature, and moreover the time between the date and return was shorter than the period required between the day of service and the day of “examination.” People on rel. of Platt v. Highway Com’r, 38 Mich., 247.
In the next place the statement in the commissioner’s answer concerning the fact of service proves nothing. Apart from the objections against making
Shortly after the “examination” mentioned, the drain commissioner instead of calling a jury to make inquisition upon the necessity of the ^contemplated work and for taking property therefor, and upon the subject of damages or compensation, made an ex parte application to the probate court for the appointment of three commissioners, and the court thereupon appointed the commissioners and they in turn proceeded ex parte to adjudicate in the premises. They decided in favor of the necessity, but were entirely silent on the subject of damages and compensation. The taking of these proceedings in this manner without any notice to those interested, was a fatal error as we held in Strachan v. Brown, ante, p. 168. The various other material defects which appear in the record require no notice.
The proceedings must be quashed.