I cannot concur in the opinion proposed by Mr. Justice SHARPE. The circuit court of Muskegon county held that the proceedings and action taken relative to the construction of the Ruddiman Valley No. 3 drain were void and that court perpetually enjoined and restrained the county treasurer (a defendant herein) from collecting any of the drain assessments. No appeal was taken from this decree.
Later, this court in Township of Norton v. Cockerill,265 Mich. 405, divided on the question of the right to recover those illegal assessments which had been paid, but that division was over the applicability of a statute of limitation, i.e., 1 Comp. Laws 1929, § 4927 (Stat. Ann. § 11.91). Nevertheless, this court was unanimously of the opinion that —
"The undisputed facts show that the construction was not a drain but was in fact and law a sewer."
The bondholders' proceedings upon which appellants rely were brought in the United States district court for the western district of Michigan subsequent to the entry of the foregoing unappealed circuit court decree, and our decision in Township ofNorton v. Cockerill, supra. The judgment of the Federal court in the bondholders' proceedings could have no effect whatever on the prior chancery decree and injunction of the State court. See the reasoning in Toucey v. New York Life Ins. Co.,314 U.S. 118 (62 Sup. Ct. 139, 86 L.Ed. 100, 137 A.L.R. 967). *Page 614
However, we are not presently concerned with the correctness of the judgment which the Federal court rendered in the bondholders' action on March 15, 1939, and the writ of mandamus issued on September 21, 1939 (see Erie R. Co. v. Tompkins, 304 U.S. 64 [58 Sup. Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487], decided April 25, 1938), but rather with the right of the successors in title of one who secured a decree on November 27, 1934, in the State court, perpetually enjoining and restraining the collection of an illegal drain tax upon its lands.
As to plaintiffs in the case at bar, and those appellants who either themselves or their predecessors in office were defendants in the former action in the Muskegon circuit court, that decree is res judicata. As to the remaining defendants, the former unappealed decree is just as effective because it made it illegal to levy and collect a tax incident to the construction of the drain in question.
Under the rules of res judicata and stare decisis the instant decree of the circuit court should be affirmed. City ofHighland Park v. Oakland County Drain Commissioner, 300 Mich. 501. It should be so ordered, with costs to appellees.