Opinion
Docket No. 78, Calendar No. 42,564.
Decided June 30, 1944.
Appeal from Macomb; Reid (Neil E.), J. Submitted April 15, 1944. (Docket No. 78, Calendar No. 42,564.) Decided June 30, 1944.
Bill by Macomb Building Company, a corporation, against Township of Clinton and others to have a levy of special assessments declared void and to restrain collection of the same. Decree for plaintiff. Defendant appeals. Affirmed.
Nunneley Nunneley, for plaintiff. John E. Merrill and Hugh H. Neale, for defendants.
The Macomb Building Company, a Michigan corporation, brought suit to restrain the township of Clinton and its officers from enforcing the collection of a special assessment levied against plaintiff's property for the installation of water facilities. It alleges that the proceedings to install the water mains were so irregular and insufficient that they conferred no jurisdiction on defendants to make such improvements or levy the assessments. Defendants, while not conceding any irregularity, set forth in their brief only one question upon which they base their appeal: Whether plaintiff is not estopped from raising these objections because, as defendants claim, plaintiff's grantor had participated in the initiation of the proceedings and improvements and the present officers of plaintiff corporation had knowledge of the construction of the improvements and received and accepted their benefits.
Many irregularities are claimed by plaintiff but we shall discuss only one, lack of jurisdiction. While the petitions to install the water facilities were signed by the alleged owners of over 65 per cent. of the lots in the assessment district, as a matter of fact, the parties who signed as owners of 29 of these lots had no title to them, the record title being in the State of Michigan by virtue of deeds from the auditor general which had been duly recorded prior to the filing of the petitions to install the water facilities. The record owners of only 26 of the 72 lots in the assessment district signed the petition. This was approximately 36 per cent. instead of the 65 per cent. provided for by statute, 1 Comp. Laws 1929, § 2386 (Stat. Ann. § 5.2412). (The subsequent amendment in Act No. 201, Pub. Acts 1941 [Comp. Laws Supp. 1943, § 2386, Stat. Ann. 1943 Cum. Supp. § 5.2412], made no change in the per centum required.) The signature of the owners of 65 per cent. of the property is jurisdictional. The board never acquired jurisdiction over the subject matter. Its action based upon a void petition is a nullity. Auditor General v. Fisher, 84 Mich. 128; Collins v. Township of Grand Rapids, 108 Mich. 675; Nichols v. Tallmadge, 260 Mich. 576.
The lots, whose record title was in the State, were not owned by the parties who signed the petition as record owners. The property was redeemed from the State by a trustee of plaintiff's grantor, the latter being the cestui que trust, and the State gave a quitclaim deed to him. This, however, occurred after the filing of the petition. Later, and some time after the proceedings to install the water facilities, plaintiff was incorporated and title to these lots was conveyed to it by warranty deed. There is reasonable ground to infer that, in arriving at the price paid for the lots, the unpaid water assessment against these lots must have been considered. Defendants claim that because plaintiff's officers had knowledge of and obtained the benefits from the assessment and because all dealings involving the lots in question were carried out with this knowledge in mind, plaintiff should be estopped from denying the validity of the tax.
While it might be claimed that some minor irregularities in the proceedings can be waived by the action of the parties, the doctrine of estoppel cannot be invoked to establish jurisdiction when none existed. In Auditor General v. Woodward, 191 Mich. 496, the facts upon which a claim of estoppel was based resemble those in the instant case. The grantor of the parties who claimed the assessment illegal had signed the petition for the improvement. In holding that there could be no estoppel where there is a lack of jurisdiction, we quoted with approval from Hamilton's Law of Special Assessments to like effect. Also, see Miller v. City of Detroit, 244 Mich. 38; Campbell v. City of Detroit, 259 Mich. 297.
Decree for plaintiff affirmed, with costs.
NORTH, C.J., and STARR, WIEST, BUSHNELL, SHARPE, and BOYLES, JJ., concurred. REID, J., did not sit.