Auditor General v. Calkins

Grant, J. (after stating the facts). The statute provides that: [4] “No tax assessed upon any property, or sale therefor, shall be held invalid by any court of this State on account of any irregularity in any assessment, or on account of any assessment or tax roll not having been made or proceeding had within the time required by law, or on account of the property having been assessed without the name of the owner, or in the name of any person other than the owner, or on account of any other irregularity, informality, or omission, or want of any matter of form or substance in any proceeding that does not prejudice the property rights of the person whose property is taxed; and all proceedings in assessing and levying taxes, and in the sale and conveyance therefor, shall be presumed by all the courts of this State to be legal, until the contrary is affirmatively shown.” 1 Comp. Laws, § 3922. A publication once in each week for two weeks is not a sufficient compliance with the law, unless the time for hearing was two weeks after the first publication. The statute' contemplates a notice of two full weeks. Gantz v. Toles, 40 Mich. 725; Bacon v. Kennedy, 56 Mich. 329 (22 N. W. 824). . A publication upon Thursday of one week and upon Thursday of the following week of a notice that the board would meet upon Friday of the second week does not give the notice required by the statute. This defect is one of substance, within the statute above cited. Is it cured by the statute ? Section 3195, 1 Comp. Laws, provides that, before ordering any such improvement, any part of the expense of which is to be defrayed by special assessment, the common council shall make an estimate, and give notice of the proposed improvement, and of the district to be assessed, by publication for at least two weeks. It also provides that, unless a majority of the persons to be assessed shall petition therefor, it shall not be ordered except by the concurrence of two-thirds of the aldermen-elect. It would seem, under this provision, that no petition is necessary, provided that two-thirds of the aldermen-elect shall order an improvement. It does not appear that a majority of the persons to be assessed united in the petition. The case [5] must therefore be disposed of upon the theory that the common council have acted without such a petition. It was obligatory upon the common, council to give the notice required as a condition precedent to further action. The notice is in the nature of a summons to bring a defendant into court. Its object is to summon the interested taxpayers before the council, and give them a hearing. The notice must give the time required by the law, or else the council obtain no jurisdiction, any more than a court would obtain jurisdiction by a void service of process. The council in the inception obtained no jurisdiction on account of a void noticé. This is not a case where a court of equity will leave a party complainant to his remedy at law. The defendant is now for the first time brought into court and given an opportunity to contest the validity of the proceedings. The statute gives him the right to wait until the State moves to foreclose the tax lien upon his property, and then gives him the right to appear and make any objections which were fatal to the proceedings. He cannot, therefore, be charged with laches. If the statute, as formerly it did, gave a deed to the tax purchaser, and gave the taxpayer no opportunity to appear in court to contest it, we might then apply the rule, as In other cases, that equity will not afford him relief, but will leave him to his remedy at law. Under this disposal of the case it would be unnecessary to determine the other questions, but, inasmuch as they are fully argued, and one of them is involved in another suit already submitted, we will decide them. The proceeding to designate the district by instructing the city engineer to make a plat, etc., and by adopting such plat, is a sufficient designation within the statute. Davies v. City of Saginaw, 87 Mich. 439 (49 N. W. 667); Boehme v. City of Monroe, 106 Mich. 401 (64 N. W. 204); Kundinger v. City of Saginaw, 132 Mich. 395 (93 N. W. 914). The publication of notice of hearing of objections, made [6] by the city clerk under the instruction of the common council, was a sufficient compliance with section 3195, 1 Comp. Laws, which requires the common council to give notice of such hearing. The defect, if any existed, in the certificate of the assessors, does not render the assessment void. It was not a fatal defect. Auditor General v. Sparrow, 116 Mich. 574 (74 N. W. 881); Auditor General v. Hutchinson, 113 Mich. 245 (71 N. W. 514). Decree reversed, and decree entered in this court for the defendants. The other Justices concurred.