Edros Corp. v. City of Port Huron , 78 Mich. App. 273 ( 1977 )

78 Mich. App. 273 (1977) 259 N.W.2d 456

EDROS CORPORATION
v.
CITY OF PORT HURON

Docket No. 29920.

Michigan Court of Appeals.

Decided September 8, 1977.

Fitzgerald, Young, Peters, Bruno & Bunn, for plaintiff.

Bush, Luce, Henderson, Black and Bankson, for defendant.

Before: D.F. WALSH, P.J., and QUINN and H.D. STAIR,^[*] JJ.

PER CURIAM.

Plaintiff appeals from an order of the St. Clair County Circuit Court granting defendant's motion for accelerated judgment.

On April 14, 1976, the Port Huron City Council approved the creation of a special assessment district to finance the installation of water and sewer lines in the area. The district consisted primarily of plaintiff's property.

Plaintiff commenced suit on June 8, 1976, charging that the city acted in contravention of its own ordinances by creating the district pursuant to a petition filed by plaintiff's lessee. Plaintiff also charged that it failed to receive proper notice of the proposal and alleged that the assessment was confiscatory.

Plaintiff sought: (1) a temporary and permanent restraining order preventing any further action regarding the district, (2) an order requiring the city to employ an alternative method of supplying sewer and water services, and (3) a declaration that the council's actions were void ab initio.

On August 18, 1976, defendant moved for accelerated judgment on the basis that the tax tribunal had exclusive jurisdiction to review the special assessment levied by the city council. By an order dated August 23, 1976, the lower court granted defendant's motion.^[1]

The jurisdiction of the tax tribunal is set forth in §§ 31 and 41 of the Tax Tribunal Act, 1973 PA 186; MCLA 205.701 et seq.; MSA 7.650(1) et seq., which provide:

"The tribunal's exclusive and original jurisdiction shall be:

"(a) A proceeding for direct review of a final decision, finding, ruling, determination, or order of an agency relating to assessment, valuation, rates, special assessments, allocation, or equalization, under property tax laws.

"(b) A proceeding for refund or redetermination of a tax under the property tax laws." MCLA 205.731; MSA 7.650(31).

"A person or legal entity which, immediately before the effective date of this act, was entitled to proceed before the state tax commission or circuit court of this state for determination of a matter subject to the tribunal's jurisdiction, as provided in section 31, shall proceed only before the tribunal." MCLA 205.741; MSA 7.650(41).

On appeal, plaintiff argues that the Port Huron City Council is not an "agency" within the terms of the act and contends that the tribunal lacks jurisdiction over the instant controversy since plaintiff seeks injunctive and declaratory relief and challenges the constitutionality of the assessment.

We find plaintiff's argument that a city council is not an "agency" within the terms of the act without merit. The act defines an "agency" to include:

"[A] board, official, or administrative agency who is empowered to make a decision, finding, ruling, assessment, determination, or order which is subject to review under the jurisdiction of the tribunal or who has collected a tax for which refund is claimed." MCLA 205.703; MSA 7.650(3).

A city is authorized to provide in its charter for the assessment of a special district for all or any portion of the cost of a public improvement. MCLA 117.4d; MSA 5.2077. A city council acting pursuant to such a charter provision, therefore, is a "board, official or administrative agency" empowered to make a decision subject to review by the tribunal. In addition, the Legislature, by expressly providing that the terms of the act are effective "notwithstanding the provisions of any * * * charter * * * to the contrary", MCLA 205.707; MSA 7.650(7), indicated an intent to bring municipal action within the coverage of the act.^[2]

This court similarly rejects plaintiff's argument that the tribunal is without jurisdiction of the present case because of the relief sought and the constitutional claim raised.

The tax tribunal is a quasi-judicial agency. MCLA 205.721; MSA 7.650(21), Ann Arbor Twp v State Tax Commission, 393 Mich. 682; 227 NW2d 784 (1975). Such administrative bodies lack judicial powers, Michigan Mutual Liability Co v Baker, 295 Mich. 237; 294 N.W. 168 (1940), Stuart v Spencer Coal Co, 307 Mich. 685; 12 NW2d 443 (1943), and do not ordinarily adjudicate constitutional claims, Dation v Ford Motor Co, 314 Mich. 152; 22 NW2d 252 (1946). We, nevertheless, find that the instant controversy falls squarely within the jurisdiction of the tax tribunal.

MCLA 205.731; MSA 7.650(31) grants the tribunal exclusive jurisdiction to review directly final decisions regarding special assessments. Additionally, the powers of the tribunal are extensive and include the authority to issue the relief requested by plaintiff.

"The tribunal's powers include, but are not limited to:

"(a) Affirming, reversing, modifying, or remanding a final decision, finding, ruling, determination, or order of an agency.

"(b) Ordering the payment or refund of taxes in a matter of which it may acquire jurisdiction.

"(c) Granting other relief or issuing writs, orders, or directives which it deems necessary or appropriate in the process of disposition of a matter of which it may acquire jurisdiction." MCLA 205.732; MSA 7.650(32). (Emphasis supplied.)

Thus, upon a proper showing the tribunal has the authority to order or direct the taxing agency to take no further action relating to a disputed tax assessment until the merits of the controversy have been determined. The fact that the tribunal, as a quasi-judicial agency, has no contempt powers^[3] does not diminish the validity and binding force of its writs, orders or directives. Enforcement is obtainable by application to the circuit court.^[4]

Plaintiff's claim that the special assessment is confiscatory is similarly within the jurisdiction of the tribunal. To contend that the special assessment is confiscatory is merely to assert in constitutional terms the argument that the assessment is without foundation. In Blades v Genesee County Drain District No 2, 375 Mich. 683, 695-696; 135 NW2d 420, 426 (1965), the Court discussed a claim that the levy of a special assessment was confiscatory.

"``Whether the exaction is in the form of a special assessment for a special improvement, or a general tax for the general welfare, the constitutional test is always whether anything is given or offered for that which is taken. Indeed, the underlying purpose for the creation of special taxing districts is to attain a constitutional balance in relationship to benefits conferred for burdens imposed. 1 Cooley, Taxation (4th ed), § 320.'" Quoting from Morton Salt Co v South Hutchinson, 159 F2d 897, 902 (CA 10, 1947).

Whether a special benefit has been conferred upon the property assessed is a question of fact. Blades v Genesee County Drain District No 2, supra, Soncoff v Inkster, 22 Mich. App. 358; 177 NW2d 243 (1970). If plaintiff's property is specially benefited, and the benefit conferred corresponds to the assessment levied, the city council's actions are valid and the assessment, in turn, is nonconfiscatory.^[5] The issue is one properly decided by the tax tribunal. We refuse to hold that the body charged with reviewing special assessments cannot undertake to examine the very foundation upon which such assessments are made. To do so would be to preclude the full utilization of the tribunal's expertise in the area. MCLA 205.722; MSA 7.650(22), Judges of the 74th Judicial District v Bay County, 385 Mich. 710; 190 NW2d 219 (1971).

Affirmed. No costs, a public question.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.

[1] Prior to defendant's motion for accelerated judgment, plaintiff sought a temporary restraining order enjoining the city from taking further action to install the water and sewer lines. The motion was denied. Plaintiff subsequently sought leave to appeal to this Court and moved for a stay of proceedings. Defendant, in turn, moved to strike plaintiff's application on the basis of the tax tribunal's exclusive jurisdiction of the present controversy.

In an order dated August 11, 1976, this Court stayed further proceedings to enforce the special assessment district until a trial on the merits could be held and judgment entered. Defendant's motion was denied without prejudice to the city's right to move for an accelerated judgment in the lower court.

[2] Plaintiff also asserts that the act violates the title-object clause of the Michigan Constitution, Const 1963, art 4, § 24, because it fails to expressly mention municipalities.

The title of the Tax Tribunal Act declares that one of the purposes of the act is "to provide for appeals". To include special assessments levied by municipalities among the decisions reveiwable by the tax tribunal does not extend the body of the act beyond its declared purpose. Generally, People v Recorder's Court Judge #2, 73 Mich. App. 156; 250 NW2d 812 (1977).

[3] Contempt powers are "judicial" powers. People v Matish, 384 Mich. 568; 184 NW2d 915 (1971), In re Colacasides, 6 Mich. App. 298; 148 NW2d 898 (1967).

[4] See, MCLA 205.736; MSA 7.650(36). Cf., MCLA 37.2606; MSA 3.548(606). Generally, 1 Am Jur 2d, Administrative Law, § 173, p 977.

Requiring the tribunal to decide the merits of a request for a preliminary writ, order or directive further advances the legislative intent of having tax matters resolved by a board possessing special knowledge and skill in the area. Stanley, Tunstall and Opper, State and Local Taxation, 1974 Annual Survey of Michigan Law, 21 Wayne LR 619, 657 (1975).

[5] "``"The justice of demanding the special contribution is supposed to be evident in the fact that the persons who are to make it, while they are made to bear the cost of a public work, are at the same time to suffer no pecuniary loss thereby; their property being increased in value by the expenditure to an amount at least equal to the sum they are required to pay."'" Fluckey v Plymouth, 358 Mich. 447, 454; 100 NW2d 486 (1960), as quoted in Johnson v Inkster, 56 Mich. App. 581, 586; 244 NW2d 664, 667 (1974), lv granted, 394 Mich. 809 (1975). See also, Stybel Plumbing, Inc v Oak Park, 40 Mich. App. 108; 198 NW2d 782 (1972).