Township of Blumfield v. Brown

Michigan Supreme Court

Township of Blumfield v. Brown

90 N.W. 284, 130 Mich. 504, 1902 Mich. LEXIS 826

Michigan Supreme Court·Decided May 8, 1902·No. Docket No. 103·Published·Cited by 3 cases

Opinion

Grant, J.

This case is brought to this court by certiorari to review proceedings taken by the drain commissioner of Saginaw county to clean out, widen, and deepen a part of a public drain. The sole claim of plaintiff in certiorari is that the petition is fatally defective, and conferred no jurisdiction.

The order based upon the petition was made February 18, 1901, while the application for writ of certiorari was not made until April 30th. The statute provides that notice of the certiorari shall be served on the commissioner within 10 days after his determination, and that, if no certiorari has been brought within the time prescribed, its legality shall thereafter not be questioned in any suit at law or in equity. Plaintiff claims the right to a common-law certiorari, and that it is not limited by the statute. It is within the power of the legislature'^ limit the time within which writs of certiorari may be issued. The statutes afford abundant instances of this [505] kind. See 1 Comp. Laws, §§ 936, 1047, 2764. The legislature has not taken away the right to review the proceedings by certiorari, but only has limited the time within which parties must proceed. The purpose of the statute is' to' obtain speedy determination of suits begun to test the validity of the proceedings, and to avoid “the law’s delays,” and the incurring of further expense until the validity of the proceeding is beyond controversy. The township was duly served with notice of the proceedings and of soliciting bids, and its proper officer was present when contracts were let. The township did not move seasonably. Moore v. McIntyre, 110 Mich. 237 (68 N. W. 130), where, in an opinion written by my Brother Montgomery, it was shown under what circumstances the common-law certiorari may be open, viz., where the statutory remedy is not possible of application. Such a case was Loree v. Smith, 100 Mich. 252 (58 N. W. 1015), where no order was actually made which would set the time running.

The judgment is affirmed.

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

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Grant, J.

This case is brought to this court by certiorari to review proceedings taken by the drain commissioner of Saginaw county to clean out, widen, and deepen a part of a public drain. The sole claim of plaintiff in certiorari is that the petition is fatally defective, and conferred no jurisdiction.

The order based upon the petition was made February 18, 1901, while the application for writ of certiorari was not made until April 30th. The statute provides that notice of the certiorari shall be served on the commissioner within 10 days after his determination, and that, if no certiorari has been brought within the time prescribed, its legality shall thereafter not be questioned in any suit at law or in equity. Plaintiff claims the right to a common-law certiorari, and that it is not limited by the statute. It is within the power of the legislature'^ limit the time within which writs of certiorari may be issued. The statutes afford abundant instances of this [505] kind. See 1 Comp. Laws, §§ 936, 1047, 2764. The legislature has not taken away the right to review the proceedings by certiorari, but only has limited the time within which parties must proceed. The purpose of the statute is' to' obtain speedy determination of suits begun to test the validity of the proceedings, and to avoid “the law’s delays,” and the incurring of further expense until the validity of the proceeding is beyond controversy. The township was duly served with notice of the proceedings and of soliciting bids, and its proper officer was present when contracts were let. The township did not move seasonably. Moore v. McIntyre, 110 Mich. 237 (68 N. W. 130), where, in an opinion written by my Brother Montgomery, it was shown under what circumstances the common-law certiorari may be open, viz., where the statutory remedy is not possible of application. Such a case was Loree v. Smith, 100 Mich. 252 (58 N. W. 1015), where no order was actually made which would set the time running.

The judgment is affirmed.

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

Township of Blumfield v. Brown, 90 N.W. 284, 130 Mich. 504, 1902 Mich. LEXIS 826 (Mich. 1902).

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Opinion

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