213 Mich. 532 | Mich. | 1921
This case has been brought here by certiorari to review a proceeding by mandamus in the circuit court for the county of Ingham, upon the petition of the attorney general, to compel the defendant, as supervisor of Bark River township, Delta county, to spread and levy a tax of $9,315.27 for the purpose
In 1913, by Act No. 355 of the Public Acts, said section 12 of chapter 5 was amended so as to provide that if the repairs were not made by the township or the county within a reasonable time, after being ordered by the State highway commissioner, he should make such repairs and cause the same to be paid out of reward money earned by the township or county. The section was again amended by Act No. 75 of the Public Acts of 1915, which added the further provision that if no reward was due to the county, district, or township, the State highway commissioner should render his bill to the proper township authorities, which bill, was required to be paid, and the supervisor was directed to include the amount in the next tax roll of the township. In 1917 the legislature again amended the section by Act No. 356, adding provisions with reference to the organization of a system of maintenance. The act as so amended was in effect at the
At its October session of 1919 the board of supervisors of Delta county, on presentation to it of the situation, ordered the supervisor of Bark River town
Counsel for the plaintiff claim that this question
“Counsel for respondent calls attention to the case of Ferton v. Feller, 33 Mich. 199, as authority in support of the contention that the supervisor may not alter the tax roll after it has passed from his hands to the treasurer. It may be conceded that the supervisor may not, on his own motion, recall the tax roll after delivery to the treasurer and alter the same; but it does not follow that, with an order to show cause why he should not be ordered to include the tax, served upon him at a time when the roll was still in his hands, and subject to the inclusion of this tax, he can make this proceeding a moot case by deliberately not including the tax, and passing the roll to the treasurer. Respondent has taken the language of the statute as mandatory, when it is directory only. Barnes v. Board of Sup’rs of Wayne Co., 194 Mich. 540, 550. The case has not become a moot one by reason of such action by respondent in the face of the proceeding pending against him in this court to compel him to do the very thing he now says he has by his act cut himself off from doing. It would bring reproach upon the law to hold that the supervisor, after being ordered by the court to show cause why he should not spread a tax, may not spread the tax, and may defeat the proceeding by sending the tax roll, to the treasurer. He should have held the tax roll until a determination herein, and he could have done so under the law; and his claim that he had complied with the letter of the law goes for naught when it appears*539 that his haste was wholly unnecessary, and that the letter of the law, as well as the spirit thereof, would have been met, and much better served, by respect for this proceeding, and in waiting determination herein. The question raised by respondent was before the court in the case of State, ex rel. Evers, v. Byren, 32 Wash. 264 (73 Pac. 394), and it was held that the surrender of the roll did not defeat the power of the court to order the tax spread.”
We call attention to the lengthy excerpt from the Washington case, given by the circuit judge in his opinion. We held in the Barnes Case that such provisions as to time of delivery of roll were directory merely. If defendant, after the time of showing-cause on November 30th, deliberately put the roll out of his control, he did so at his peril. The courts will not permit their jurisdiction to be trifled with in this manner. Material delay in the preparation of rolls is frequently necessary, and is practiced in cases of litigation. Attorney General v. Midland County Sup’rs, 178 Mich. 513. See, also, State, ex rel. Taggart, v. Holcomb, 81 Kan. 879 (106 Pac. 1030, 28 L. R. A. [N. S.] 251). We agree with the circuit judge that there is no merit in this claim.
“Respondent contends that the board of supervisors for Delta county had no duty to perform with respect to the tax in question; and if action by such board was necessary, the clerk of the board of supervisors did not certify the direction of the board to the township. It may be doubtful whether this particular tax must be certified to the board of supervisors by the town*540 ship clerk, because the law provides that the supervisor shall include the amount in the next regular tax roll, and there may be some question whether the amount and purpose of the tax should be certified by the township clerk to the board of supervisors, under other provisions of law, and then come back under direction from the board, but this does not avail respondent at all. It may be that action by the board of supervisors was not necessary, or it may be held that such action was necessary, and not at all affect the duty of respondent in the premises. If direction by the board of supervisors was necessary, such action was had, and while it may be somewhat perfunctory in nature, because under the law the tax partakes wholly of a township matter, it is no excuse to say that the clerk of the board of supervisors failed to certify the same, and in the same breath urge that the board of supervisors could not take action at all. Both positions are answered, however, by the law making it the duty of the township supervisor to take notice of this township obligation, and to spread the tax, regardless of the failure of the clerk of the board of supervisors to certify the same to him. It is claimed that, if the board of supervisors may order the tax spread upon the township roll, the board cannot act at all until all questions of difference between the township and the State highway commissioner have been settled, and the right, of the township to litigate the legality of the claim has been afforded; and it is urged that a bill for such repairs rendered to the township is required to be paid by such township in advance of the levying of a tax therefor. Must-the bill be presented to the township, and the right to contest the need of repairs, and the expense thereof be given to the township before collection can be enforced by tax levy? This is undoubtedly true of private claims, but does not hold good under the statute creating the liability and affording the remedy for repairing a State rewarded road. The action of the State highway commissioner, being authorized by statute, is not subject to review by a recalcitrant township, neither may such township _ stay the spread of the expense upon the tax roll, until it be given an opportunity to litigate the charge. The law prescribes*541 the power of the commissioner, and the duty of the township supervisor; and the power of the commissioner when exercised makes the duty of the supervisor follow as a matter of course.”
We think that in the above excerpt the second point urged is fully answered.
It should be borne in mind, as stated by the circuit judge,- that the relations between the township and the State arising under the road reward law are in no sense contractual. We do not think that the cases above cited are controlling of the instant case. Here the claim is a liquidated one. The statute makes it the duty of the State highway commissioner, on the failure of the township authorities to act, to proceed to put the road in proper condition. This is a ministerial duty, and the resulting duties on the part of the township authorities, with reference to the payment of the cost of the work are also ministerial. The amount to be paid by the township- authorities, and to be raised by taxation, is fixed. If a judgment in assumpsit were obtained it would add nothing. The judgment would be no more liquidated than is the claim. The case of Pape v. Township of Benton, 140 Mich. 165, seems to be authority in support of the plaintiffs claim upon this question. There the highway commissioner had purchased road machinery under Act No, 178, Pub. Acts 1897, an act intended to permit such purchases, and which provided the method
“No proceeding is necessary to determine the amount of such indebtedness. That amount is fixed by the proper township officers, who certify to the board of supervisors. The contract fixes the purchase price. Payment can be made only through official channels. Everything is a matter of record. At no time can the balance due be a matter of doubt. The township is not primarily liable. No contract relations exist between the seller of the road machines and the township.”
The following cases are also pertinent: Mackenzie v. Baraga Township Treasurer, 39 Mich. 554; Just v. Wise Township, 42 Mich. 573; Township of Hart v. County of Oceana, 44 Mich. 417; County of Oceana v. Hart Township, 48 Mich. 319; Auditor General v. Supervisors, 76 Mich. 295; Auditor General v. Board of Sup’rs of Bay Co., 106 Mich. 662; Smith v. Jones, 136 Mich. 532.
In our opinion mandamus is the proper remedy here.
“Respondent seeks to raise issues of fact upon the necessity for the repairs made by the State highway commissioner, and asserts that the action taken by the commissioner was arbitrary, and the expense incurred excessive. No such issue of fact can now be raised'; the law provides for none, and the purpose of the law negatives such issues. The law gave the township an opportunity to make the repairs, and upon its failure to do so, vested power in the State highway commissioner, and if the determination of the commissioner was ever open to question at all, it could only be for fraud, or for exceeding his authority, and not for a review of his judgment. The township was ordered by proper authority to make the repairs and neglected to comply with the order, and did not then contest the need of, and the extent and nature of the repairs as a fraudulent determination, and does not do so now, and it never could bring the judgment of the State highway commissioner before a court for review. The law provides power for keeping a rewarded road in repair, and if the township pays no attention to an order of the State highway commissioner, the necessity therefor, and the cost thereof, are not subjects to be litigated between the commissioner and the township, unless fraud is alleged;-for the commissioner acts as an administrative officer clothed with full power of determination, and his acts are not open to review in any court.”
The circuit judge quoted the statute as amended. It has been repeatedly held by this court that where an officer has particular authority to exercise his judgment, after investigating the facts of which he is made judge, his findings of such facts are conclusive. And this doctrine, in its application, is not confined to judicial and gmsi-judicial officers. For a collection of authorities on this subject see Belknap v. Township of Benton, 169 Mich. 58, 64.
It seems to be the claim of appellant that the determination of the State highway commissioner is sub
That the legislature has the power to make the determination of highway officials as to the necessity for doing the work final, and not subject to judicial review in the absence of fraud or its equivalent, cannot, we think, be questioned. We invite attention to section 26 of article 8 of the Constitution, which invests the legislature with very broad powers in this regard. The general rule is stated in 13 R. C. L. at page 82, as follows:
“The propriety and necessity of improving streets and sidewalks, and the character and extent of the work to be done, are matters resting in the discretion of the public authorities to whom the decision of those questions is committed by law, and the courts will not interfere with the exercise of such discretion, except where the power is exceeded, or fraud is charged and shown to exist, or where there has been a manifest invasion of private rights.”
See cases cited in notes.
So in 37 Cyc. page 222, it is said:
*546 “The method or plan of work is in the discretion of the road officers within the restrictions of law, and subject to the rights of abutting owners.”
A decision strongly in point is Reuter v. Contracting Co., 143 Ky. 557 (136 S. W. 1028, Ann. Cas. 1912D, 265). That was an action brought by the contractor who had done the work, the purpose being to enforce a lien on the property in accordance with the Kentucky statute. It was urged, by way of defense, that the work should not have been done. The court said:
. “Appellant’s final contention that the work done by appellee under his contract with the common council was unnecessary, is a matter with which neither the circuit court nor this court is concerned. The complaint constitutes no defense to the action. The question of whether the streets or sidewalks of a city shall be repaired, changed or improved, is a matter that addresses itself solely to the discretion of the common council of the city; as is the further question as to what the character and extent of the work should be; and the courts will not interfere with the exercise of such discretion”; citing cases.
The case of Auditor General v. Board of Sup’rs of Bay Co., supra, cited by defendant, we think supports the contention of the plaintiff. It was a mandamus proceeding, and involved, among other things, the right of the State to recover for money expended in maintaining the State militia while engaged in duty in Bay county. It was contended on behalf of the respondent board that the county could not be charged without giving an opportunity to be heard, — substantially the same claim as is made in the instant case. At page 680 this court said:
“The law fixes the compensation, and provides for payment by the State, upon allowance by the proper State officers. When paid, the liability of the county does not depend on the opinion of the board of supervisors, either as to the sufficiency of the requisition,*547 the nature of the emergency, or the amount to be paid by the State. All of these things are now definitely fixed by law. It is a charge on behalf of the State, and can be disputed only in the courts, if thought illegal or excessive.”
Counsel for defendant lay stress upon the last sentence. An examination of the entire opinion shows that the court had in mind the contesting of liability in a case where the bill rendered was in excess of the money actually expended, or where the action taken was unlawful because of fraud or its equivalent. In our opinion the assertions in the answer that the action of the State highway commissionér was arbitrary, uncalled for, etc., present no issue of fact. Similar expressions were used in Barnes v. Board of Sup’rs of Wayne Co., supra. We call attention to the language of this court upon the subject. So in the instant case, we think, it must be said that the fact that the judgment of the State highway commissioner differed from that of the defendant, with reference to the extent of the repairs necessary to put the road in proper condition, does not render the determination of the commissioner subject to review.
5. It is next claimed by appellant that the several amendments of the statute are not retrospective, and Board of Sup’rs of Arenac Co. v. Board of Sup’rs of Iosco Co., 158 Mich. 344, and Davis v. Railroad Co., 147 Mich. 479, are cited. Upon this question the circuit judge said:
“The respondent claims that the obligation of the township is to be determined in accordance with section 12 of chapter 5, Act No. 283, Public Acts of 1909, and not by any amendments thereto.”
After referring in detail to the several amendments he said:
“The point is made that the rights, duties and obligations of the township, and the remedy to compel per*548 formance of such duties and obligation must be measured and determined by the statute in force when the township applied for, and obtained the State reward, and that subsequent amendments to the statute cannot be invoked by the State, for, to do so would violate the contractual relations between the township and the State, arising out of the tender of,, and under the provisions of the statute, and acceptance by the township.
“The relations between the township and the State, arising under the road reward law, are in no sense contractual. Board of Sup’rs of Saginaw Co. v. Hubinger, 137 Mich. 72. The township is but a subdivision of the State, and is incapable of establishing contractual relations with the State, under the road reward law, and is at all times amenable to the laws of the State.
“The application for, and receipt of road reward money by the township, was under general law, and cannot partake of the nature of a contract. The law placed the obligation upon the township to keep its road upon which it has been paid reward money and which becomes thereby impressed with State supervision, in repair, and this obligation comes to the township by law, and not by contract to do so, and the obligation imposed by law has not been changed by subsequent legislation, and even if it had been changed by law, it would have to be obeyed by the township. The means of enforcing obedience has been amplified," and of this the township cannot complain, and could not complain successfully even if its relations with the State, under the statute should be held. to be contractual in nature. C. H. Little Co. v. L. P. Hazen Co.. 185 Mich. 316; Heineman v. Schloss, 83 Mich. 153.”
The amendments affect the remedy only. No greater duty with respect to roads was imposed on the township or the township authorities, under these amendments, than was imposed under the law in its original form. The only change made had to do entirely with the manner of enforcing that duty on behalf of the public, or to provide an additional method for such enforcement. There is no legal objection preventing
We conclude this lengthy consideration of this case by quoting with approval the following language of the attorney general in his brief:
“The matter of the improvement or the repair of a road is not one of merely local concern. All of the highway legislation now on the statute books is based on the theory that the entire State is interested. The reward law itself is no exception.
“We are not confronted here with a case in which an attempt is made by the legislature to authorize action by one who is not representative in any way of the municipality. The State highway commissioner is an officer of the State, represents all and each part of it, including the township of Bark River. It is competent for the legislature to empower and require him to act in the manner provided for in the statute here involved, just as- under the assessment district road law, he may bind a township, or a county, or an assessment district, by the issuance of bonds, the preparation of the assessment rolls and other matters of procedure provided for in that act.”
The judgment of the circuit court is affirmed.