Anderson v. Board of County Road Commissioners

Defendants appeal from a decree voiding assessments for improving a public highway and permitting recovery of sums paid. The proceeding was voidable ab initio for want of sufficient signatures of owners of lineal frontage.

Defendants contend that, under the statute, 1 Comp. Laws 1929, § 4381, and holdings in McDermott v. Board of County RoadCom'rs of Kent County, 199 Mich. 613; Cummings v. Garner,213 Mich. 408; Heliker v. Oakland County, 216 Mich. 595;Auditor General v. Union Lake Land Co., 239 Mich. 437, and decisions like Township of Norton v. Cockerill, 265 Mich. 405, upon comparable drain statutes, review is by certiorari only, and if not so tested the legality cannot thereafter be questioned in any suit at law or in equity.

Plaintiffs contend that certiorari is not the sole remedy in case of total want of jurisdiction to act and not the remedy at all in case the proceeding is founded upon fraud, forgery, false affidavit and false certificate. See Clinton v. Spencer,250 Mich. 135; Township of Lake v. Millar, 257 Mich. 135.

Plaintiffs have no frontage on the highway and did not sign the petition for the improvement, but have property within the assessment district and some have paid levies assessed and others have paid instalments.

The circuit judge, in an opinion, stated:

"The petition (for the improvement) before the court does not contain a sufficient number of signatures. This alone in the opinion of the court would not entitle plaintiffs to relief as this question has been passed on in a number of cases."

The basis for such holdings is that the number of signatures required is fixed by statute and the same statute cures a defect of that nature if not raised within a specified time. The circuit judge also found that the supervisor of the township falsely certified that he had " 'compared the ownership of property represented by the signatures as signed to the foregoing petition with records in the office of the register of deeds and find that they are the owners in fee simple of more than 66 per cent. of the lands fronting on the road described in this petition.' "

The statute, 1 Comp. Laws 1929, § 4317, requires an application for the improvement to be signed by "owners of more than sixty-six per cent. of the lineal frontage of lands fronting or touching upon any highway or portion thereof," desired improved, and that "the eligibility of signers to any application hereby authorized shall be determined by their interest of record in the office of the register of deeds or in the probate court of the county in which such lands are situated, at the time the petition is presented."

Under the evidence the proceeding, at its inception, was illegal and void.

Was review by certiorari the sole remedy? If certiorari is the exclusive method of review, regardless of fraud, false certificate, false affidavit and forgery, at inception of the proceeding, then the decree herein should be reversed and the bill dismissed. If, under such circumstances, certiorari is not the exclusive remedy then the decree, voiding the proceeding, should be affirmed.

Upon the question of remedy the adjudications in this jurisdiction cannot be harmonized into statement of a general rule, and it must be left for each case to rest upon its peculiar facts. It may be said, however, that want of jurisdiction, if apparent on the face of the proceeding, must be reviewed, if at all, by certiorari, and intermediate steps, if so voidable, must be so challenged. For, if so found, the statute authorizes correction and continuance of the proceeding. But, where want of jurisdiction at inception is concealed by fraud, false certificate, false affidavit and forgery, and not reasonably discoverable within the time fixed for review by certiorari, then the court of equity has jurisdiction.

It would be a sorry commentary on rights and remedies, under modern procedure, to hold that an illegal proceeding, like the one at bar, is vested with all the attributes and force of legality by failure of victims to uncover such fraud in season to have review by certiorari. No statute can supply substance to such a mere shell, nor stay right of the wronged to have remedy according to equity and good conscience.

Sufficient signatures of eligible owners of lineal frontage were not obtained. Eligibility of purported signers was not determined by interest of record, as required by the mentioned statute. Instead the supervisor of the township certified that he had made such comparison, which was untrue.

Attached to the petition was an affidavit in which the affiant deposed:

"That he circulated the foregoing petition, and that each signature thereon is genuine and is the signature of an owner of property fronting on the highway described."

This was false. Two signatures were either forged or unauthorized. The board of highway commissioners accepted the certificate of eligibility of signers and their ownership of lineal frontage and the affidavit of the genuineness of signatures as true, and rested action thereon. The petition gave the board of county road commissioners no power to act.

The remaining question is that of right of plaintiffs to have return of assessments paid.

Bonds were issued by the county to pay for the improvement, and in this court it is urged that the bondholders are necessary parties. The point seems not to have been raised in the circuit court. The obligation of the county on the bonds is not before us, and cannot have any bearing upon the question of validity of the proceeding here tested.

We agree with the following statement of the circuit judge:

"There is no actual fraud upon the part of any member of the road commission or * * * office force."

The false certificate and false affidavit worked a fraud.

The proceeding was void at every stage, and plaintiffs have been subjected to unlawful exactions which, if withstood without judicial pronouncement, would impose a tax enforceable by sale of the property assessed.

The decree should be affirmed, with costs to plaintiffs.

POTTER, J., concurred with WIEST, J.