40 Mich. 367 | Mich. | 1879
Blakeley brought assumpsit for money had and received to recover back a sum of money alleged to have been illegally claimed and collected as a special tax for a street improvement in the city. He obtained judgment in the Superior Court and the city brought error.
The question is raised that a large part of the amount adjudged against the city was in fact paid some time after the warrant for collection had run out, and as a consequence that the payment should be held a voluntary one. This point is not authorized by the record. In submitting the ease the judge distinctly assumed that the tax was demanded under color of process in the marshal’s hands and which he held out as in force and as about to be executed in case of non-payment, and that Blakely in fact paid under protest. To this there was no exception. Moreover, the judge had ground for his assumption. The substantial point in controversy related to the original validity of the tax roll and not to minor incidents, and although several charges for the city were asked, there were no requests referring to the present objection, — so far from it, that one stated expressly that the money was collected and paid over as a tax.
The further point that as the fund is not for city use, the city is not liable, is untenable. If the money was illegally exacted by the marshal under color of city
The assessment here in question, like that in Warren v. Grand Haven, 30 Mich., 24, was for a special object, and the proceeding necessarily involved, as it did there, a just allowance for benefits or advantage from the improvement to each one assessed. But the roll contained no return or certificate by the commissioners nor any paper making known the manner in which they proceeded. They barely subscribed their names.
The judge ruled that the case was governed by Warren v. Grand Haven, supra, and that the roll was invalid. An effort is now made to distinguish the cases, but we are unable to find any distinction in principle. Indeed the cases are very similar in their facts and in principle identical.
In the former case the proceedings were regulated by an ordinance made under authority given by the charter, and it devolved the duty of making assessment, upon the mayor and required that he should subscribe the roll and return it as speedily as might be to the common council. He appended a certificate to the roll, but it failed to show that the assessment had been made on the basis prescribed by the ordinance.
In this case the proceedings are regulated directly by the charter itself, and an assessment is required to be made by commissioners, and the law provides that the roll shall be subscribed by them or a majority of those who shall have acted in the premises, and shall be returned as speedily as may be to the common council of the city. 2 Sess. L., 1871, pp. 399, 400; act 218, tit. VI., § 40, and the second section thereafter (§ 42) founds the right to take further steps upon the filing of such “return.”
The promissory oath taken at the beginning is not enough. The city and all parties in interest are entitled to be distinctly informed after the event as to what has been done and thereby to be enabled to see whether in truth those conditions have been complied with, which the law holds as imperative. The question is fully discussed in the case before cited, and no further comment is needed.
We see no objection to the allowance of interest. The ground of action is that the city has without any right held and retained the money of defendant in error against his claim, and this being established, it is no more than just that he should recover interest at seven per cent., the rate which the judge permitted.
No error being established, the judgment should be affirmed with costs.
