256 N.W. 576 | Mich. | 1934
Plaintiff, as assignee of the Leinbach-Humphrey Company, brought suit at law to recover approximately $63,000 paid by his assignor, without protest, for special assessments in drain proceedings. Defendants had judgment on trial before the court.
The case is submitted on agreed statement of facts. Seven drain proceedings are involved, all of which were void for want of jurisdiction because, under them, sewers instead of drains were constructed. Clinton v. Spencer,
Defendant Willson was county treasurer from 1929 to 1932 inclusive. Defendant Van Wagoner was drain commissioner from 1931 to the time of trial in 1933. The action was commenced in 1932. The agreed statement of facts does not allege that *639 Willson now has, or ever had, possession of any money collected from plaintiff's assignor nor that Van Wagoner had any connection with the drain proceedings. Plaintiff suggests no ground upon which either could be held personally liable for return of assessments.
To recover special assessments paid, plaintiff must have statutory leave. Reliance Automobile Supply Co. v. City ofJackson,
Moreover, the county is not liable for the refund of void drain taxes. The drain commissioner, in establishing the project, and the county treasurer, in taking and handling the assessments, are not agents of the county nor are the funds received for the use of the county. The officers perform special statutory duties for drainage districts. The reasons and principles governing township liability under similar statutes and set out in the following cases are applicable:Taylor v. Township of Avon,
"These authorities conclusively establish the law to be that the municipality is not in any way interested in the fiscal affairs of the drain. The township is in no way chargeable with the acts of its officers in the administration of the drain law, nor can the county be so chargeable."
Liability of the county is not established by 1 Comp. Laws 1929, § 4937, which provides for payment *640
of principal and interest on bonds out of general county funds when the drain fund is insufficient. The payments are merely by way of advances, the county to be reimbursed from collections of the drain taxes. University of Michigan v. Pray,
Judgment affirmed, with costs.
NELSON SHARPE, C.J., and POTTER, NORTH, BUTZEL, BUSHNELL, and EDWARD M. SHARPE, JJ., concurred with FEAD, J. WIEST, J., concurred in the result.