Muskegon Township v. Muskegon County Drain Commissioner

D. E. Holbrook, J.

(dissenting). This writer is unable to agree with the majority opinion and would hold that the procedures involved herein were deficient. Plaintiffs failed to receive notice as required by the Administrative Procedures Act, MCLA 24.258; MSA 3.560(158).

The Drain Code of 1956, 1956 PA 40, § 1, MCLA 280.1; MSA 11.1001, was entitled:

"AN ACT to codify the laws relating to the laying out of drainage districts, the consolidation of drainage districts, the construction and maintenance of drains, sewers, pumping equipment, and such structures and mechanical devices as will properly purify the flow of such drains; to provide for flood control projects; to provide for water management, water management districts and subdistricts, and for flood control and drainage projects within such districts; to provide for the assessment and collection of taxes; to prescribe penalties for violations of the provisions of this act; and to repeal certain acts and parts of acts.”

The act is an attempt to codify the laws regarding drains in Michigan. See Patrick v Shiawassee County Drain Commissioner, 342 Mich 257; 69 *722NW2d 727 (1955). A part of that act, in order to further the purposes established in that title, provides that review of the drain commissioner’s action shall be conducted by a board of review appointed by the probate court, MCLA 280.156; MSA 11.1156. The Legislature thereby provided for certain basic provisions for review in such matters. The probáte court must direct a time and place of hearing for such a dispute and must provide for notice to the parties of the required board of review hearing. MCLA 280.156; MSA 11.1156.

In May of 1971 a petition to clean out and repair the Round Marsh Drain located in Muskegon Township, Muskegon County, was filed with the Muskegon County Drain Commissioner. A determination of necessity was made. Apportionment hearings were held in September 1974 and in January 1975. On January 31, 1975, several property owners filed an appeal with the Muskegon County Probate Court from the board of drain commission’s property assessments.

Pursuant to the Drain Code of 1956 the probate court appointed a board of review on February 11, 1975. After inspecting the properties involved in the drainage district and meeting on February 26, 1975, and again on March 21, 1975, the board of review filed its report with the Muskegon County Drain Commissioner. The report was not filed until June 14, 1975. Copies were not delivered to the parties, including plaintiffs herein. The trial court and the majority herein found that plaintiffs’ failure to petition for review in the circuit court by way of writ of certiorari within ten days of the filing of the board’s report with the drain commissioner precluded plaintiffs’ action. This writer cannot conclude that such failure precludes review *723where plaintiffs did not receive notice or a copy of the board of review’s decision.

In 1969 the Legislature enacted the Administrative Procedures Act of 1969, 1969 PA 306, MCLA 24.201 et seq.; MSA 3.560(101) et seq., in order to "provide for state agency administrative procedures and contested cases and appeals therefrom in licensing and other matters”. The act defines agency as a "state department, bureau, division, section, board, commission, trustee, authority or officer created by the constitution, statute or agency action”. (Emphasis supplied.) MCLA 24.203(2); MSA 3.560(103)(2). A contested case is defined by the act as "a proceeding, including but not limited to rate-making, price-fixing and licensing, in which a determination of the legal rights, duties or privileges of a named party is required by law to be made by an agency”. MCLA 24.203(3); MSA 3.560(103)(3). This writer would find that the Administrative Procedures Act applies to the board of review’s action herein whereby tax assessments against plaintiffs were made. This was a contested case within the meaning of the Administrative Procedures Act. See Cooper Township v State Tax Commission, 393 Mich 58. 68-71; 222 NW2d 900 (1974). Herein the Legislature has provided for a board of review to review the drain commissioner’s actions. Later, the Legislature in the Administrative Procedures Act, provided for additional procedures to govern actions in such matters. Failure to comply with the Administrative Procedures Act renders the action taken herein deficient.

In the Administrative Procedures Act it is clearly provided that:

"A final decision or order of an agency in a contested case shall be made, within a reasonable period, in *724writing or stated in the record and shall include findings of fact and conclusions of law. * * * A copy of the decision or order shall be delivered or mailed forthwith to each party and to his attorney of record.” MCLA 24.285; MSA 3.560(185).

The Drain Code does provide that the decision of the board is to be final. MCLA 280.157; MSA 11.1157. Although the Drain Code also provides that a written report must be filed with the drain commissioner, MCLA 280.157; MSA 11.1157, the Legislature has additionally provided in the Administrative Procedures Act that parties are entitled to receive a copy of the board’s decision.1 The record reveals that no copy of the decision of the board of review was ever sent to plaintiffs. It is, therefore, apparent that the Administrative Procedures Act has not been complied with.

The trial court determined that failure to appeal within ten days of the filing of the board’s report with the drain commissioner precluded review. However, the Drain Code and Administrative Procedures Act must be read together and, therefore, the ten-day period could not begin to run until the decision of the board herein was delivered to plaintiffs. Therefore, the trial court incorrectly determined that plaintiffs’ action was barred. MCLA 24.306; MSA 3.560(206), Luther v Alpena Board of Education, 62 Mich App 32, 34; 233 NW2d 173 (1975).

Plaintiffs also contend that the Drain Code of 1956 is constitutionally deficient because it fails to provide for proper notice. See Dow v Michigan, 396 Mich 192; 240 NW2d 450 (1976). Contrast Scholtz v Ely, 123 Mich 541; 82 NW 237 (1900). We need not *725decide this issue because the Administrative Procedures Act requirements provide for notice. Any deficiency in the Drain Code of 1956 is effectively cured by the Administrative Procedures Act. Failure to follow the Administrative Procedures Act in this case requires reversal.

This writer believes that the appeal to the circuit court herein was proper under the facts in this case, and should be reinstated. This writer so votes.

Obviously, parties include the drain commissioner and all counties, cities, townships, districts or villages to be assessed. See MCLA 280.155; MSA 11.1155.