Anderson v. Board of County Road Commissioners

*645 Nelson Sharpe, C. J. Section 66 of what is known as the Covert act, being 1 Comp. Laws 1929, § 4381, reads, in part, as follows: “The proceedings herein provided for improving any highway, shall be subject to review upon certiorari. # * * The entire proceedings shall not be set aside except where the county road commissioners, or the State highway commissioner, axe found to have no jurisdiction to act upon the petition presented. * * * If no certiorari be brought within the time herein described, the improvements shall be deemed to have been legally ordered and established, and its legality shall not thereafter be questioned in any suit at law, or in equity. ’ ’ The right of plaintiffs to the relief sought is based upon the claim that the petition for the improvement of the highway conferred no jurisdiction upon the commissioners to act thereon, and that the proceedings taken pursuant thereto were void and may be attacked collaterally. The petition on its face disclosed the signatures of the number of owners of property required by the statute, but the proofs show that certain of the names were not signed by the parties themselves, and that some of the purported owners did not have title in fee thereto. The purpose of the provision restricting the time within which the proceeding may be attacked, and confining the remedy to certiorari,, is apparent. After the time for review in that manner has elapsed, bonds may be issued to pay for the improvement, and assessments made for their payment, as provided for in the statute. The security of the bondholders is dependent upon the legality of the proceedings taken by the commissioners. To that end this court has construed the provision for review by certiorari with strictness. *646 In, I think, all of the cases in which the question has been involved under the Covert act, the decisions of this court, under somewhat similar provisions in the drain law, have been referred to with approval. In Auditor General v. Bolt, 147 Mich. 283, this court said, quoting from Strack v. Miller, 134 Mich. 311: “The purpose of the statute undoubtedly is to give an opportunity to have a speedy hearing upon any question of jurisdiction or any question of irregularity.” In Township of Clarence v. Dickinson, 151 Mich. 270, a suit in equity was brought to enjoin the construction of a drain for the reason that, although it was called in the application therefor “the extension of an existing drain,” it was intended thereby to construct a new drain, and, as it did not have the number of signatures required therefor, the drain commissioners had no jurisdiction to take any proceedings thereunder. Mr. Justice Carpenter, speaking for the court in that case, pointed out the distinction between a want of jurisdiction due to the violation of a constitutional right and the lack of compliance with a statutory provision, and as to the latter said “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.” He further said (p. 273): “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 constitutionál *647 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.” This decision has been quoted from or cited with approval in the following cases: Cummings v. Garner, 213 Mich. 408, 424; Heliker v. Oakland County, 216 Mich. 595, 598; Stellwagen v. Dingman, 229 Mich. 159, 161; Sterling Bank of Sleeper & Chamberlain v. Scott, 231 Mich. 362, 366; Auditor General v. Union Lake Land Co., 239 Mich. 437, 439; Squier v. Nash, 240 Mich. 146, 150; Fuller v. Cockerill, 257 Mich. 35, 39; Township of Lake v. Millar, 257 Mich. 135, 141. See, also, 9 A. L. R. 856. In the drain case of Stellwagen v. Dingman, supra, it was referred to and quoted from, and it was said that it “must be accepted as the settled law of this State. ’ ’ In Heliker v. Oakland County, supra, an action was brought to recover taxes paid under protest, assessed under the Covert act, for an improvement similar to that here involved. The application asked for the construction of about five miles of road, only two of which were at that time a part of a public highway. The other three miles were subsequently conveyed to the county. This act does not authorize the laying out of a new road or the-extension of an old one. Clearly, there was no jurisdiction for the commissioners to act thereunder. The opinion, written by Mr. Justice Bird, is so accessible that I hesitate to quote at length therefrom. He stated therein that— *648 “The question is one that has perplexed the profession to determine when the exclusive remedy of certiorari must be invoiced and when the proceedings might be attacked collaterally in other actions.” He referred to the drain case of Strack v. Miller, supra, wherein this court reversed the trial court and held that the remedy for the defect in the petition, in that it lacked the signatures of the requisite number of freeholders, was by certiorari. He then referred tó, and quoted at length from, the opinion in Township of Clarence v. Dickinson, supra, and concluded by saying: “The legislature might have provided that the commissioners could have done just what they did do, and hence it follows that for an infraction of this legislative rule the remedy by certiorari was exclusive.” This case has been cited with approval in Stellwagen v. Dingman, supra, and Auditor General v. Union Lake Land Co., supra, and Township of Lake v. Millar, supra. Counsel for the plaintiffs stresses the fact that a fraud was perpetrated on the commissioners’ by the false affidavits annexed to the peti.ti.on. While these affidavits were made for the purpose of satisfying the commissioners that the application conformed to the statutory requirements, the fact that they were false, and that in the absence of them the commission would doubtless not have taken the action they did take, cannot in my opinion be sufficient ground for a claim that plaintiffs’ constitutional rights were affected thereby. Counsel also urges that the rule as stated has been modified or changed by our recent decisions in Clinton v. Spencer, 250 Mich. 135, and Township of Lake *649 v. Millar, supra. In those eases applications for drains were filed with the commissioners, and, assuming to act on them, sewers were constructed. The distinction is obvious. The decree is reversed and set aside and one here entered dismissing the bill of complaint, with costs to the defendants. North, Bead, Butzel, Bushnéll, and Edward M. Sharpe, JJ., concurred with Nelson Sharpe, C. J.