230 N.W. 936 | Mich. | 1930
Herman A. Miller and approximately 170 other persons petitioned the circuit court of Wayne county for a writ of mandamus by which they sought to compel the return of paving assessments which they had paid to the city of Detroit. It was determined by this court that the assessments so paid were illegal and void in Miller v. City of Detroit,
No proof was taken, and on the foregoing record the circuit judge ordered issuance of a writ of mandamus. The respondents review by certiorari and allege there was error in granting the writ for the following reasons:
"1. No traverse having been filed, the matters set forth in the answer and return of respondents are taken as true.
"2. Mandamus is not the proper forum because:
"(a) The relators have another adequate remedy at law.
"(b) Mandamus will not issue unless there is conclusive proof of the amount claimed.
"(c) The sum claimed is not fixed or liquidated.
"(d) The answer and return sets forth that there is no appropriation, fund or money available in the treasury with which to meet the claims of said relators.
"3. Relators are not entitled to recover as a matter of law.
"(a) Payments would, if made, be voluntary.
"(b) The charter does not recognize the mandatory duty of the common council to refund."
The record in the circuit court and in this court clearly presents a disputed issue of fact as to what amount, if any, should be refunded to the plaintiffs; and also as to whether the payments to the city were made by these plaintiffs. Without referring to other issues presented, it thus conclusively appears that plaintiffs' rights and defendants' duties depend upon the outcome of controverted issues. All must agree that the amount to be refunded, if any, would be fixed by the amount paid to the city; and further, *636 the refund should be to the persons who made the payments, but not necessarily to the present owners of the property. 5 McQuillin on Municipal Corporations (2d Ed.), p. 914.
"The writ of mandamus being a discretionary one, its issuance should not be directed unless there is a clear legal duty upon the part of defendant, and a clear legal right in plaintiff to the discharge of that duty." (Syllabus.) Taylor v. IsabellaCircuit Judge,
In Waterman-Waterbury Co. v. School District,
" 'That if there be doubt as to what his legal right may be, involving the necessity of litigation to settle it, mandamus must be withheld; that its principal office is not to inquire and investigate, but to command and execute. * * * The rule has also been stated that mandamus will not lie to compel a public officer to perform a duty dependent upon disputed and doubtful facts, or where the legal result of the facts is subject of legal controversy. If the right is reasonably in serious doubt, from either cause mentioned, the discretionary power rests with the officer to decide whether or not he will proceed to enforce it, till the right shall have been established in some proper action; and that discretion fairly exercised cannot be controlled by mandamus.' 2 Bailey on Habeas Corpus, pp. 801, 805.
" 'The writ of mandamus is designed to enforce a plain positive duty, upon the relation of one who has a clear legal right to have it performed, and where there is no other adequate legal remedy.' State v. New Haven Northampton Co.,
See, also, First Nat'l Bank of Paw Paw v. Nash,
No proof having been taken and the issues being in dispute, we cannot determine from this record whether these payments or any part of them were made with or without protest, voluntarily or involuntarily; but we do hold that plaintiffs on the record presented are not entitled to mandamus. The case is reversed, and the writ denied, with costs to the appellants.
WIEST, C.J., and BUTZEL, McDONALD, POTTER, SHARPE, and FEAD, JJ., concurred. CLARK, J., did not sit.