Township of Clarence v. Dickinson, Docket No. 57

Docket No. 57 | Mich. | Feb 15, 1908

Carpenter, J.

This is a suit in equity brought for the purpose of enjoining the construction of án alleged extension of Peacock drain, so-called, to Loomis Lake. The drain proposed to be constructed lies wholly within the county of Eaton. The assessment district extends into the township of Clarence, Calhoun county, and into the township of Springport, Jackson county. The complainants, other than the township of Clarence, own land in said township situated in said assessment district. The application for the drain described it with precision. It called it an extension of Peacock drain. It was signed by 18 petitioners, freeholders of the townships to be traversed by said drain, and it stated that three or more of them are owners of land liable to an assessment for benefits.

The ground upon which complainants seek relief is this, that the proposed drain is really a new drain; that the application should therefore have been signed by five persons liable to an assessment for benefits (see Act No. 272, Public Acts of 1899, chap. 3, § 1) and as it does not appear to be signed by that number the drain commissioner had no jurisdiction; the proceedings are a nullity andean be attacked collaterally. The final-order of determination of the drain commissioner was filed in the office of the county clerk, as required by law, December 5, 1906. No attempt was made to review these proceedings by certiorari and this suit was instituted January 3, 1907. In the circuit court a decree was rendered dismissing complainants’ bill. Complainants appeal.

Section 4346, 2 Comp. Laws, authorizes a review of the proceedings for establishing a drain by writ of certiorari. Ten days after the order of final determination is filed with the county clerk is given for the issuance of this writ, and it is distinctly provided:

“ If no certiorari be brought within the time herein prescribed, the drain shall be deemed to have been legally established, and its legality shall not thereafter be questioned in any suit at law or equity.”

Complainants are seeking to do what this law in express terms prohibits. They cannot succeed if the law is constitutional. Complainants’ claim of a right to disregard the law is an assertion of its unconstitutionality. Is the law unconstitutional ? I have no doubt cases may arisé to which this law can have no constitutional application. Such a case will be presented if the proceedings before the drain commissioner violate constitutional rights. The fact that such cases may arise is no reason for declaring the law unconstitutional. It is to be presumed that the legislature intended to enact a constitutional law and not an unconstitutional law (Cooley on Constitutional Limitations [7th Ed.], p. 255), and it should be construed in accordance with this intent. The language of the statute indicates that the legislature intended to go to the limit of its authority, but it is also to be presumed that it did not intend to exceed those limits. Within the limits of that authority, then, the statute has a constitutional application. Auditor General v. Bolt, 147 Mich. 283" court="Mich." date_filed="1907-03-05" href="https://app.midpage.ai/document/auditor-general-v-bolt-7944092?utm_source=webapp" opinion_id="7944092">147 Mich. 283; Crandall v. McElheny, 146 Mich. 191" court="Mich." date_filed="1906-10-29" href="https://app.midpage.ai/document/crandall-v-mcelheny-7943930?utm_source=webapp" opinion_id="7943930">146 Mich. 191; Grandchamp v. McCormick, 150 Mich. 232" court="Mich." date_filed="1907-12-10" href="https://app.midpage.ai/document/grandchamp-v-mccormick-7944484?utm_source=webapp" opinion_id="7944484">150 Mich. 232.

The question, then, and the only question, for our consideration is this: Can the statute have constitutional application to this case ? The only reason advanced for saying that it cannot, is this, viz., that equity can afford relief whenever, the drain commissioner lacks jurisdiction. It is apparent from the foregoing reasoning that the lack of jurisdiction which will warrant relief in equity must arise from a violation of the Constitution. The objection to the jurisdiction in such cases must be a valid constitutional objection. Such objection could be urged if no notice or opportunity of hearing was given to one whose property was to be taken for the construction of the drain, for he has a constitutional right to such notice, and if that right is disregarded, the proceedings are as to him a" nullity. If, on the other hand, the objections to the jurisdiction are not of a constitutional character, it is obvious that the legislature has a right to .say how they shall be raised, or, in its wisdom, deprive one altogether of the privilege of raising them.

The jurisdictional objection raised by complainant is not of a constitutional character. The Constitution does not require the petition to be signed by five property owners liable to assessments for benefits. That requirement is purely statutory. The legislature might have dispensed with it altogether. It therefore possessed ample constitutional authority to declare how objections to its non-observance should be made. It had authority to declare that objections not so raised should be disregarded. It exercised that authority by the statute under consideration. That statute is therefore constitutional in its application to this case and it prevents complainants maintaining this suit.

It is not to be inferred from this decision that complainants who are merely liable to be assessed for this drain could be heard in any court to question the legality of the proceedings for its establishment. The ground upon which we dispose of this case makes it unnecessary to determine that question, and we do not determine it.

Complainants also insist that after apportioning the cost of this drain between the three counties interested, a mistake was made by the commissioners in entering their figures in the writing signed by them. This is conceded and the mistake was corrected before this suit was heard, and before any steps were taken to construct the drain. The correction was favorable to complainants, but they contend that to make it valid it must be ordered by the decree of a court. If the commissioners had authority to make this correction — and we are cited to no decision which denies that authority — complainants have no need of relief. If they have not that authority we can see no ground upon which a court can direct them to make it.

The decree is affirmed.

Grant, C. J., and Blair, Moore, and McAlvay, JJ., concurred.