250 N.W. 324 | Mich. | 1933
Plaintiffs sold materials to the drain commissioner of Macomb county for the Anderson drain, and received a drain order for $200, payable from the Anderson drain fund, on or after March 15, 1931. April 15, 1931, plaintiffs presented the drain order to the county treasurer of Macomb county. Payment was refused. The order was marked by the drain commissioner "insufficient funds, six per cent. interest added from April 15, 1931, until redeemed." The order has not been redeemed. April 24, 1933, the books of the county treasurer of Macomb county showed a balance in the Anderson *606
drain fund of $957.88. Plaintiffs' drain order was again presented to the county treasurer for payment and payment resed. April 26, 1933, petition for mandamus was filed in the circuit court. May 5, 1933, hearing was had and the writ denied. Plaintiffs bring appeal in the nature of certiorari. That the county treasurer's books showed on the day of demand and on the day of hearing a balance of $957.88 in the Anderson drain fund is admitted. It is conceded the money belonging to the Anderson drain fund was used for other purposes prior to the date of plaintiffs' demand, and it is claimed such dissipation of the fund by respondent's predecessor in office constitutes a defense. Plaintiffs' claim has been audited and allowed; its amount fixed and determined, and an order issued therefor by the drain commissioner on the Anderson drain fund. The regularity of the issuance of the drain order is not questioned. The order was due and payable when presented for payment in April, 1933. Drawing a warrant therefor would have been a mere ministerial duty, incumbent upon defendant and subject to control by mandamus. High, Extraordinary Legal Remedies (3d Ed.), § 356. The defense is want of funds. Reliance is based upon People, ex rel. Allen, v. Frink,
"When a demand against a municipal corporation is liquidated and evidenced by a proper warrant upon a proper officer, requiring upon the part of such officer the official action of paying it, such action, there being funds, may be compelled by mandamus." Ullman v. Sandell,
The money to pay plaintiffs' drain order has been raised. The taxpayers cannot be required to again pay the amount of the fund which it is claimed has been used for other purposes by the board of supervisors. First National Bank of Paw Paw v.Nash,
The precise question is whether mandamus will lie to compel the payment of plaintiffs' drain order by defendant, it appearing the money has been raised and credited to the Anderson drain fund and subsequently used for other purposes; so that it appears there was not sufficient money on hand in the Anderson drain fund when the order was presented for payment to pay the same, there being statutory authority to require payment out of the general fund of the county and there being sufficient money in the general fund of the county to make the payment.
Though want of funds is in general a sufficient excuse for not paying an order, as appears from the cases above discussed, the authorities are in conflict as to whether the unlawful appropriation of available funds, so there are no funds available, is a defense. Official misapplication of funds, the wrongdoing of county officers having control of funds, ought not to constitute a defense. The county cannot defend on the ground it misappropriated the funds in question. Official wrongdoing should not constitute a foundation for the wrongdoer's rights. People, ex rel. Pennell, v. Treanor,
When a special fund provided for the payment of orders issued has been exhausted, whether rightfully or wrongfully, and such orders are by statute to be paid out of the general fund, the fact the special fund set apart for payment of such claims has been exhausted will not prevent the issuance of mandamus to compel payment of such claims out of the general fund.Jackson v. Baehr,
The writ of mandamus will issue as prayed.
McDONALD, C.J., and SHARPE, NORTH, FEAD, WIEST, and BUTZEL, JJ., concurred. CLARK, J., took no part in this decision.
