Smith v. Carlow

Grant, J.

(after stating the facts). 1. The point was raised in the court below that the question was res judicata. This question is not raised in this court by counsel, perhaps for the reason that an adjudication upon the entire controversy is desired. Speaking for myself, I am unable to see why the question is not res judicata. I have examined the papers in the certiorari case, and, as above stated, the proceeding was attacked upon every ground now raised. The order of the court shows that it passed upon the validity of the proceedings. Inasmuch, however, as this point is not raised, we will proceed to the other questions.

2. Every notice which the statute requires was given during the progress of these proceedings. No appeal was taken as provided in the drain law, and no attempt made to review them by the writ of certiorari. It is true that this plaintiff testified that he was not aware for a long time that his land was included in the assessment district, and that he did not suppose that it could be benefited by the construction of the proposed drain. The statute required no personál service upon him, and, when the statutory notices have been given by publication, no personal service is necessary. Among the reasons for the delay stated in the plaintiff’s brief are these: “The time re? quired to examine the voluminous proceedings; the necessary co-operation of a large number of interested parties, the expense being far too great to be borne by a single individual; and the mistaken and ineffectual.appeal to the *70 board of supervisors.” From this it appears that many taxpayers have combined in the prosecution of this suit to contest the validity of the proceeding. This drain is now constructed. All parties to the proceeding acted in good faith. There is no evidence of fraud. The entire proceedings were open and notorious, and evidently were known to most, if not all, whose lands were affected. The courts were open to them to contest its validity before the contractors had performed the work under their contract. The commissioners decided that it was a public necessity. Whatever advantage it is to the public has been reaped. It is just that the contractors be paid, and courts should compel payment unless some insurmountable obstacle stands in the way. We think this case comes clearly within many other decisions of this court which hold that when parties stand by and see such improvements made, and take no steps to impeach their validity, they are estopped to question their validity when called upon to pay for them.

3. We will, however, dispose of some of the objections to the proceeding upon -which the court held the tax invalid, and directed a verdict for the plaintiff. The petition was signed by some 50 citizens of Lapeer and St. Clair counties. The township of Maple Valley, in Sanilac county, was mentioned in the petition. No freeholders of that county signed the petition. The proposed drain did not run through any part of Sanilac county. The drain commissioner of St. Clair county, to whom the petition was directed, conceiving it to be his duty, notified the drain commissioner of Sanilac county to meet with the commissioners of the other counties. The commissioner of Sanilac county did not appear, and for the reason above stated his name was, therefore, dropped from the proceedings. The inclusion of the drain commissioner of Sanilac county in the petition was mere surplusage, and did not tend ’to invalidate the proceedings.

4. It is urged that the- proceeding is void because the construction of the drain was let as an entirety, and not *71 in sections. Section 1, chap. 4, of the drain law (3 How. Stat. § 1740ci8), provides that, after the drain is located, the commissioner shall “proceed to divide the route thereof into convenient sections for the letting of the work, and shall mark the grade on each stake, from stake to stake, along the whole length of such drain. He shall also mark on each stake the number of each section.” Section 1740e requires a preference to be given in letting the contracts to those bidders who are assessed a tax for benefits. It is established by the evidence that the construction of this drain could not be let in sections without great increase in the cost. The nature of the land bordering the stream was such that the excavation could not well be done in any other manner than by a dredge. Undoubtedly, the object of this statute was to give those interested, and who had to pay for the construction, an opportunity to bid. We think this statute was directory merely; 'otherwise a drain only a few rods in length must be divided into sections. It was clearly for the benefit of all that it should be let as a whole. Our statute provides: “Every word importing the singular number only may extend to and embrace the plural numbér, and every word importing the plural number may be applied and limited to. the singular number.” 1 How. Stat. § 2, subd. 2. The term “convenient sections” includes the right to let in one section at the discretion of the commissioner. Sedg. Stat. & Const. Law, 368. The taxpayer is not injured by this proceeding, and the injustice of permitting him to take advantage of such an objection after the construction of the drain is apparent.

5. It is next urged that the drain law does not contemplate works of the magnitude and extent of this drain. Under this law it is contended that this is an internal improvement, prohibited by the Constitution; that this stream is a navigable stream, and cannot be so deepened and widened as to bring it within the drain law. Some 15 years or more ago logs were driven down this stream by the use of dams. Plaintiff’s own witnesses testified that *72 logs could not be run down it in ordinary weather. The law fixes no limit to the width or depth of the drain, nor to what extent a stream may be deepened and widened so as to drain the adjoining land. This determination is left entirely to the commissioner, and courts cannot substitute their judgment for that of the commissioner. Sage v. Laurain, 19 Mich. 137 . This was not a navigable stream. East Branch, etc., Imp. Co. v. White, etc., Lumber Co., 69 Mich. 207 .

6. Plaintiff’s counsel urge that the law is unconstitutional. It is unnecessary to argue this point. It was settled in Gillett v. McLaughlin, 69 Mich. 547 .

7. Plaintiff introduced evidence tending to show that his land'was so remote that it was not benefited by,the drain. That question could not be raised in a collateral proceeding. The statute provides a way for reviewing the action of the commissioner in this regard, and this action is final. 3 How. Stat. §§ 1740d8, 1740e2; Brown v. City of Grand Rapids, 83 Mich. 101 ; Township of Caledonia v. Rose, 94 Mich. 216 ; Nelson v. City of Saginaw, 106 Mich. 659 .

Some other questions are raised, but the above are the most important, and we deem it unnecessary to discuss the others. We find that the proceedings were regular, and that the tax was valid. It follows that the judgment must be reversed, and, inasmuch as the facts are conceded, judgment will be entered in this court for the defendant, with the costs of both courts.

Long, C. J., Montgomery and Hooker, JJ., concurred. Moore, J., did not sit.