54 Mich. 477 | Mich. | 1884
Pickerel Lake, in the township of Decatur, is substantially the head-waters of the north branch of the Dowagiac river, which flows from thence in a southwesterly direction across the township of Decatur, passing through the southeast corner of Hamilton township into Cass county.
In 1861 the Legislature of Michigan enacted that two hundred thousand acres of swamp lands of this State be appropriated, to be expended in draining and reclaiming said lands by means of levees and ditches, which land was placed under •the direction of the Board of Control, and under their direction it might be appropriated at the minimum price fixed by law for said lands from time to time for that purpose, in such localities and under such rules and regulations as they might prescribe. How. Stat. § 5121. The law also provided that these improvements should be made under contracts which ■should be awarded to the lowest responsible bidder, who should give good security for the faithful performance of the work, and such contracts should not be let until thirty days’ public notice had been given of the time and place of such letting, in some newspaper published in the county and at Lansing, and also by posting in the county, in at least twenty •of the most public places.
On the 23d of February, 1882, a contract was entered into between Lyman T. Dawson, local commissioner upon the Dowagiac swamp-land State ditch, in behalf of the State of Michigan, and Alfred J. West, as principal, and Adrian D. Taylor and Thomas H. Bottomley, as sureties, for the construction of a ditch particularly described in said contract, a •copy of which contract is as follows:
“ This agreement, made the 23rd day of February, A. D. 1882, between Lyman T. Dawson, local commissioner upon ■.the Dowagiac swamp-land State ditch, acting as such commis*480 sioner in behalf of the State of Michigan, pursuant to the-statutes of said State authorizing and providing for the construction of said ditch, party of the first part, and Alfred J. West of Capac, in the county of St. Clair, State of Michigan, as principal, and Adrian D. Taylor of Komeo, in the county of Macomb, State of Michigan, and Thomas H. 3>ot-tomley of Capac, in the county of St. Clair, State of Michigan, as sureties, of the second part:
Wiinesseth, that whereas, the said commissioner has given due notice (as required by the act entitled ‘ An Act to provide for the drainage and reclamation of swamp lands by means of State roads and ditches,’ approved February 12th, 1859, being Act No. 117 of 1859, and the acts amendatory thereof) of the time and place of the letting of the contract for the work hereinafter specified : and at the time and place-specified in such notice, the contract for such work was let by said commissioner to said principal, he being the lowest responsible bidder therefor:
Now, therefore, the said parties covenant and agree as follows, to wit:
The parties of the second part, in consideration of the compensation to be paid by the State of Michigan to the said principal, as hereinafter provided, covenant and agree that the said principal shall make, construct and finish, in a good, substantial and workmanlike manner, on or before the first day of December', A. D. 1882, a ditch between the following points, to wit:
Commencing at a point 2.71 chains east of the southeast corner of section (20) twenty, town (4) four south, of range (14) west, on the section line ; thence running in .a southwesterly direction to a point 28.40 chains west of the southeast corner of section (34) thirty-four, in town (4) four south, of range (15) fifteen west, on section line, being all of the Dowagiac swamp-land State ditch, according to the said commissioner’s survey thereof, and being.sections numbered 1, 2, 3, 4, 5 and 6, as shown by such survey; the entire length of said ditch to be constructed being 5 miles, 23 chains, 36 links, more or less.
The work of constructing said ditch shall be commenced by said principal at such point, and prosecuted on such sections, of two consecutive miles each, as the State swamp-land commissioner of said State shall direct. Said ditch to be seven feet wide at the bottom, with slope of sides one to one. The excavated earth to be removed two feet "from the sides of said ditch, and depths according to the local commissioner’s*481 survey thereof, as approved by Board of Control. All the work aforesaid is to be well done, to the satisfaction and acceptance of the said local commissioner and of the State swampland commissioner of this State, and to be approved by the Board of Control of State swamp-lands. And the said party of the first part covenants and agrees that upon the full completion of the work aforesaid, at the time and in the manner above specified, and the acceptance thereof, he will officially certify such acceptance to the State swamp-land commissioner, and that, upon the certificate of said swamp-land commissioner that said work has been done in accordance with the terms hereof, and the approval of such certificate by a majority of said board, the said principal shall receive, as a compensation in full for said work and materials furnished, the sum of $4000,. payable in State swamp-lands, which shall be selected by the said principal,.liis heirs or assigns, from any unsold swamp lands which may be in market in the Lower Peninsula of the State of Michigan, and applicable to the construction of said ditch, at the minimum price established by law at the time of such selection, and according to the provisions of the statute in such case made and provided, and the rules and regulations of the Commissioner of the State land-office, and patents shall be issued by the State for said lands, according to the laws applicable thereto.
Provided, that in every case twenty per cent, of the contract price shall be held in reserve on all acceptances which may be made from time to time, until the final completion and approval of all the work contemplated in this instrument. And the said parties of the second part agree to be bound by all the provisions of the act first above mentioned, and the acts amendatory thereof, and the act providing for the appointment of the State swamp-land commissioner, as well as by all of the conditions of this contract. The following, from section three of said first-named act, is also hereby made a part of this contract:
“The Governor, Secretary of State, Auditor General, State Treasurer, Attorney General, and Commissioner of the State Land-office shall constitute a Board of Control, and shall have power, and it shall be their duty, whenever, in their judgment, the public interest shall require it, to suspend the surveys and operations on any of Said roads, or that of any roads to be hereafter constructed under the provisions of this act, and to direct re-surveys, with a view to the selection of more fit and convenient localities for the road ; and to direct, from time to time, what work shall be commenced, suspended or*482 discontinued; and to extend the time for completing the work on any contract, and to correct all errors in contracts, whether of description or otherwise, and to allow interest on the unpaid amount of any existing contract for the payment of money, from and after the completion and acceptance of the work stipulated to be done in said contract; and this provision ■shall be embodied in every contract under this act.”
And the following section 14 of Act 177, Session Laws of 1871, is also made a part of this contract, viz.:
“ Every contract approved by said State swamp-land commissioner shall contain a provision that no deficiency of swamp lands shall be so construed as to create any lien or establish any claim against the State, except as to lands above appropriated.”
It is also understood that this contract is subject to the approval of the said State swamp-land commissioner, and shall only take effect upon such approval. And it is further agreed and stipulated that if the said Alfred J. West shall, from any cause, fail or neglect to complete and finish said ditch at the time and in the manner provided in this contract, that the said Board of Control shall have the right to declare this contract forfeited, and to direct the aforesaid commissioner to re-let the construction of said ditch to some other responsible party; and it is also understood between the parties hereto that time shall be considered and treated as of the essence of this contract; and in case of the failure to complete said ditch as aforesaid by the said first day of December, 1882, he, the said Alfred J. West, does hereby authorize the said Board of Control to cancel this contract, and also hereby relinquishes any right to compensation for work and labor and materials expended under the, same. The stipulations and covenants herein contained shall apply to and bind the assignees of the said parties of the second part.
In witness whereof the said parties have hereto set their hands, the day and year first above written.
Lyman T. Dawson, [l. s.]
Local Commissioner. Alfred J. West, [l. s.]
Adrian D. Taylor, [l. s.]
Tiiomas PI. Bottomley, [l. s.]”
This contract was approved on March 1st, 1882, by Fred. J. Mack, State swamp-land commissioner, and was filed in his office on the 4th of March, 1882. The job was advertised,
An Act to provide for the straightening or otherwise deepening the channel of the Dowagiac river in Yan Burén county.
Section 1. The People of the State of Miohigam, enact, That the legal voters of either or both of the townships of Decatur and Hamilton, in the county of Yan Burén, are hereby authorized and empowered to vote a sum of money annually for three years from the passage of this act, at the annual township meetings for the election of township officers, by a special tax not exceeding one-half of one per cent, in any one year on the taxable property of such township voting, according to the equalized valuation thereof for the preceding year, for the purpose of straightening or otherwise deepening the channel of the Dowagiac river in said township.
Section 2. Notice shall be previously given of intention to ■move for such a vote and appropriation, signed by at least twelve freeholders of such township wherein the vote is proposed to be taken, and posted up in five public places therein, ten days previous to the day of such meeting, which said notice shall specify the amount proposed to be raised for such purpose: Provided, that no money shall be raised by tax unless a majority of the qualified electors voting at such meeting shall, by ballot, authorize the same.
Section 3. Said money, if voted, shall be assessed and collected in the same manner as other township taxes are, and expended in connection with other funds and means donated •to and provided for such river improvement, after a full investigation of its merits, under the supervision of the State board of control of State swamp lands.
Approved March 17th, 1881. (Local Acts 1881, No. 323.)
It appears from the testimony of Lyman T. Rawson that .lie and Mr. Copley guaranteed to Mr. West that, if he would take the contract from the State, the people of the township ■should vote and raise $2500, which should be given to him •in addition to the compensation which he should receive •under his contract from the State; that there was nothing published to the effect that there should be $2500 donated to •the man that took the contract when the proposal for bids was made.
On the 23d of March, 1882, which was more, than three weeks
The first question to be considered is whether, if any action can be maintained at all, it should have been brought against, the township, and not against defendant. The circuit judge-so held in the court below.
I do not see how the moneys raised under this act can be considered township moneys. They do not belong to the township, and the township authorities have no supervision or control over their expenditure. The same vote which determines to raise the moneys by tax, appropriates them to the purpose specified in the act; and they are to be expended under the supervision of the State Board of Control of State
In this respect the case is quite parallel to that of moneys raised for drainage purposes, which it was held were not township moneys, and the township was not liable therefor. Dawson v. Township of Aurelius 49 Mich. 419; Camp v. Township of Algansee 50 Mich. 4. If, therefore, the defendant has received and holds the money of the plaintiff under circumstances which render it inequitable that he should keep it, there is no good reason why an action for money had and received will not lie to recover it back. Indeed, if this is not the case, then there appears to be no remedy at law to enable a plaintiff to recover money under circumstances such as here disclosed.
The plaintiff insists that Act No. 323 is unconstitutional; and if not, the tax is illegal because it was voted and raised for purposes and under circumstances that render it void as being against public policy. The alleged unconstitutionality of the act is based upon three grounds :
First. It violates sec. 20, art. iv, of the Constitution, which provides that “No law shall embrace more than one object, which shall be expressed in its title;” and the argument is that the title to this act has no connection whatever with any •of its subsequent provisions. It nowhere informs the public that an appropriation is to be made. It expresses but a single idea, — that the State deems it necessary as one of its internal
Second. It is contended that this act violates article xiv, § 9, of the Constitution, which provides: “ The State shall not be a party to, or interested in, any work of internal improvement, nor engaged in carrying on any such work, except in the expenditure of grants to the State of land or other property.” It is not denied that the State had the right to make the improvement by the appropriation of swamp lands for that purpose, and that the contract with West was a competent contract for the State to make. But the vital question is, can the State engage in the work of this improvement and provide means for the payment thereof by direct taxation laid upon the whole or upon any part of the property in the State? If the Legislature has the authority to pass a law permitting the majority of the legal voters of a pai’ticular township to impose a tax to aid the State in the work of an internal improvement, it has the authority to impose such by direct enactment without the intermediate step of a vote of the people and against their wish. And the rule is well settled, if it has not the power to impose such tax directly, it cannot authorize the imposition of the tax indirectly through a vote of the municipality or people. If this act of the Legislature, instead of authorizing and empowering the legal voters of Decatur and Hamilton townships to vote the tax in question, had enacted that $2500 should bo assessed and raised by
In 1857 the Legislature passed an act entitled “ An Act to provide for the improvement of navigation over the sand flats of the Muskegon river.” Laws 1857, p. 394. This Act appropriated $50,000 from the proceeds of sales of internal improvement lands, which had been donated to the State for the purposes of internal improvements, and the money was to be drawn from the internal improvement fund and no other. The contract was let to John A. Brooks, and was completed by his assignee and accepted by the State, but the Auditor General refused to draw his warrant for the amount, for the reason that the internal improvement fund was exhausted.
This case is decisive of the statute under consideration. The cases are parallel. In this case, the improvement of the Dowagiac river was undertaken by the State, under the law •of 1859 and its amendments, and the contract, therefore, so far as appears upon its face, was legitimate and valid. But suppose the contract with West had contained a stipulation that $2500, in addition to the compensation he was to receive from the appropriation of swamp-lands, should be paid to him by a tax levied upon the taxable property of the township of Decatur, under the provisions of Act No. 323, — the illegality of the contract would have been apparent. The •contract would have shown, upon its face, that the State had •engaged in a work of public improvement, to be paid for in
In the case of People v. Township Board of Springwells 25 Mich. 153, this constitutional provision was again considered, and it was said that “ the question whether the work is carried on by the State in no way depends on the sources from which the money is drawn to pay for it. It is a State work, if directed, planned and executed by State agency; and while the fact that the money is charged on a certain locality may make the proceedings objectionable on independent grounds, it does not alter its character.”
In the Springwells case, the improvement was to be paid for by special tax on property in a limited district, and no lands or proceeds of lands were to be used in the expenditure. The law was held void because it violated that provision of the Constitution which inhibits the State from engaging in works of internal improvement where the expenditure is not met by grants to the State of land or other property.
The statute under consideration employs State agencies t© carry forward the improvement, and so far as the statute forms the basis of any action the means employed to further the improvement are raised, not from the proceeds of lands or other property granted to the State, but by taxation on a particular locality. The statute, for this reason, conflicts with the Constitution in this respect.
Third. Another objection to the legality of the tax is based upon the purpose for which it was imposed. The contract was entered into by Mr. West previous to the vote taken by which the tax was authorized. It describes fully the work to be done, and the time and manner of doing it, as well as the compensation which he was to receive. The law and the contract both provided that the contractor should have no claim against the State, except as to the lands appropriated, and Mr. West agreed that he would “make, con
A law passed to authorize such a proceeding is unconstitutional. It deprives the citizen of his property without due process of law; and it makes no difference that it was assented to by a majority of legal voters. A person may give his own property to whom he pleases, but he cannot compel his-neighbor to part with his property except'by due process of law. People v. Salem 20 Mich. 452; Bay City v. State Treasurer 23 Mich. 499. I do not think the law can be sustained upon the theory advanced by counsel for defendant, that the taxation was for a local purpose and such purpose meritorious and beneficial to the public. It may be conceded that the straightening and deepening of the channel of the Dowagiac river would be conducive to the public health; that it would be advantageous to the roads leading across the swamp, and very much lessen the expense of keeping such highways in repair. Yet all this does not obviate the constitutional objections to the statute under which this tax was levied, and the remedy for existing evils must be sought in some other direction. The conclusions at which we have arrived with regard to the unconstitutionality of Act No. 323 renders it unnecessary to consider the question as to-whether the transaction by which Mr. West was to be paid $2500 in addition to his contract price with the State, was-void as being against public policy.
The judgment of the circuit court must be reversed, and a. judgment entered here in favor of the plaintiff for $90.04, with costs of all the courts.
