45 Mich. 340 | Mich. | 1881
Delator asks a mandamus to compel the respondents to raise a tax to pay certain highway orders. One of them amounting to $100 and numbered 825 is not disputed. The rest were issued by the highway commissioners to pay for a bridge across the An Sable river on the line of what is claimed to have been a highway. The answer of the respondents denied that there was any legal authority to build this bridge on the credit of the township, and on an issue framed upon this point no proof was apparently given, and no finding was had of any such authority, unless inherent in the office.
It is claimed that under the practice in mandamus cases the burden of showing illegality rests on the respondents. Mandamus proceedings to collect debts are not different from any other suits. The plaintiff must always make out his case unless admitted expressly or by implication. In this case his allegations were met by a defense denying his right. There is no general presumption that highway commissioners can bind their townships by such obligations as they choose to issue. They can only act when authorized. In the absence of any finding of authority we must assume none existed.
The mandamus as to these bridge orders must be denied. Under our present practice we have not been in the habit of denying relief where the relator fails in some part of his claim but makes out the rest. There is no good reason for distinguishing in this regard between mandamus proceedings and other actions where a complete cause of action is made out less than the whole claim., We have discarded the old rule, which seems to have prevailed under a different form of procedure, and which some of the earlier decisions of this court adopted. We do not deem it applicable under the constitutional provision which has given this court plenary juris
The writ must be allowed for the valid order, but without costs.