Thomas v. Walker Township Board

Grant, C. J. (after stating the facts). We find only one case in this court-involving the power and jurisdiction of the township board upon appeals from the action of the commissioner under the statute of 1885. Gillett v. McLaughlin, 69 Mich. 547. It was there held that the board had no power to change the per cent, of the drain assessment to be borne by the township after the commissioner had fixed it. The law governing these assessments, and providing for appeals therefrom, is found in' chapter 5 of the drain law. 3 How. Stat. § 1740e2 et seq. Section 1 authorizes the commissioner to apportion the per cent, of the cost of construction of a drain to any township traversed thereby, by reason of the benefit to the public health, convenience, or welfare, or as a means of improving any highway. He must assess the cost of such drain, over and above the per cent, assessed against such township, to lands benefited thereby. “Such assessment of per cent, for benefits shall thereupon be subject to review and correction, and may be appealed from in the manner hereinafter provided: Provided, that * * * when the lands to be assessed therefor are situated in more than one township, the commissioner shall first determine and apportion, among such several townships, the per cent. * * * which each township and the lands therein situated is to bear. From this determination there shall be no appeal.” Section 2 provides that the owner of any lands assessed [601] a per cent, for benefits may appeal to tbe township board of the township in which his lands so assessed are situated. Section 3 provides for the notice to be given of the meeting of the board, and that “at such hearing the board shall have the right to review all assessments.” It then provides that the proceedings in establishing any drain shall be subject to review upon certiorari, notice of which shall be served on the commissioner within 10 days after his determination in establishing the drain, and that— “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.” Section o provides that the board shall proceed— “To view the grounds, and to review the assessments made by the commissioner, and to hear the proofs and allegations of all parties in respect to the matter of such appeals, and if, in their judgment, there be manifest error or inequality in such assessments, they may order such changes to be made as they may deem just and equitable.” 1. It is clear from these provisions that the township board is not clothed with authority to determine the validity of the proceedings taken by the commissioner of Kent county, or the joint action of the commissioners of the two counties, or to change the per cent, assessed upon the township at large. Its power is confined exclusively to the correction of any “error or inequality” in the assessment made by the commissioner upon lands benefited. Any person or township desiring to contest the validity of the action of the commissioner, or of the two commissioners, in laying out and establishing the drain, must resort to the courts, and not to the township board. It follows that the commissioner of Ottawa county was not a necessary party. %. There is no difficulty in determining what is meant by the term “inequality.” The township board may de [602] termine that the benefits assessed upon some lands are too high, and upon others too low, and may exercise their judgment to equalize the assessment. A question of some difficulty arises as to what is included within the term “error.” The commissioner might make an error in the amount, so that the total assessments would be more or less than the total amount apportioned to the lands. This would be error which the board could correct. But does the statute contemplate that the board may change the assessment district as fixed by the commissioner, and exclude any lands which, in its judgment, ai’e not benefited ? Does the term “ error ” mean that the commissioner erred in his judgment as to the lands which are and those which are not benefited ? The logical result of this holding would be that the board might determine that none of the lands were benefited, and thus defeat the construction of the drain. In this case the assessment district contained about 712 acres, as fixed by the commissioner. Of this about two-thirds was directly held by the board to be nonassessable, and though the board seems, in the closing sentence of the report, to hold that the others are assessable, it said in a previous part of the report that they were not legally assessable. The members of the board seemed to recognize that they had no power to set aside the assessment upon the township at large, and contented themselves with a protest against it. The board is evidently not clothed with power to enlarge the assessment district. It is only by implication that it can be held to possess the power to restrict the district. It is clearly not clothed with power to wipe the district out entirely, and thus defeat the action of the commissioner. If the drain be legally established, — and, so far as this case is concerned, it must be so held, — the result would be the total failure to raise 20 per cent, of the cost. We are therefore of the opinion that the board had no power to change the boundaries of this district, and to exclude lands which the commissioner had determined were benefited. It may correct the inequalities, and [603] place as little upon such lands as it chooses. In this respect its power is supreme, and from its action there is no appeal. Those who appeal to this board are entitled to have the board pass upon such errors or inequalities. This it has not done, and it would be manifestly unjust to have the assessment made by the commissioner stand, and thus deprive the appellant of the benefit of his appeal. It follows that the judgment must be reversed, and the township board directed to meet and review the assessments in accordahce with this opinion. The other Justices concurred.