151 Mich. 152 | Mich. | 1908
Lead Opinion
The plaintiffs have appealed from a judg
One Elisha Strong was acting county drain commissioner of Ionia county, in September, 1901, and on or about September 12, 1901, there was filed with him a petition for cleaning out an existing township drain, known as the “ Campbell Creek Drain,” signed by the number and class of persons required by law. Strong made an examination and inspection of the lands traversed by and to be benefited by the cleaning out of the drain, and determined that the same would be for the public benefit, etc., caused a survey and measurement of the Campbell Creek Drain to be made by a competent surveyor, and determined and ordered that said drain be straightened and constructed on a different line than originally constructed at the lower end across a parcel of land known as the Loomis lot. Subsequently the defendant succeeded Elisha Strong as drain commissioner of said county, his term beginning on January 1, 1902, and ending on January 1, 1904. On or about September 15, 1902, the defendant made an order (known as the final order of determination ) wherein and whereby he ordered and determined that said drain should be cleaned out in accordance with a diagram incorporated in said order, and should also be straightened at the lower end thereof across said Loomis lot as also provided in Strong’s order of determination, but without having acquired any right of way across said lot, and also described, fixed, and determined a special assessment district for the purpose of said drain, and described the parcels of lands constituting it. On the same day he made and issued his notice of letting drain contracts in the matter of said drain, wherein and whereby he gave notice that he would proceed to receive bids for the cleaning out of said drain at the residence of one Trowbridge, in the proper township, on October 8, 1902, at nine o’clock a. m., and at such time and place the assessment for benefits and the lands included in said
After making said final order defendant divided the route into convenient sections for letting, and marked the grade upon grade stakes along the entire route of said drain, including the changed line across said Loomis lot. On October 3d, at the place designated, defendant received bids for the “ construction ” of said sections of said drain, including the changed route, which was made a section by itself, and let a job applicable to said last-mentioned section to one Swan Johnson for $266.40, who then and there entered into a contract to construct the same along said changed line, defendant at the same time agreeing with said Johnson that he only required him to clear out said old drain, which he subsequently did, defendant not having acquired any right of way for the proposed new route; the cost and expense of the work done by Johnson should have been much less than said sum of $266.40, but defendant accepted such work as a full and complete performance of said contract. Several other sections were let and contracted for with divers persons named, but
The declaration alleges that it was the duty of defendant, after the delivery to him of the petition for said drain, to act in a careful, proper, and diligent manner in the premises and without fraud or negligence in making the several orders of determination, issuing, publishing, and serving the various notices required by law, acquiring the necessary rights of way for said drain, letting contracts for construction and requiring prompt performance of the same, and forfeiting contracts not seasonably performed, but that not regarding his duty, and contriving and intending to injure and aggrieve such persons as might or should perform labor and services in digging, constructing, laying out, and establishing said drain, or such persons as might or should advance moneys therefor, or should purchase drain orders issued by him, did not and would not so act in the various respects mentioned, but negligently and wrongfully performed the various acts stated in the manner hereinbefore stated; that on or about October 4, 1902, defendant issued drain orders upon the treasurer of Ionia county, to various persons, for small sums aggregating $23, for labor in making a survey and for printing, notices of letting and for the use of a team in said survey, which said orders were sold and assigned to plaintiff for a valuable consideration on or about said October 4th.
At the October, 1903, session of the board of supervisors, a certified statement of the several amounts assessed for the construction of said drain was presented to said board for their action, and said board, by reason of said wrongful and unlawful omissions and neglect of said defendant, refused and have since refused, to order
The grounds of demurrer stated are:
1. That the declaration does not state that the plaintiffs relied upon the legality of the proceedings in their purchase of the orders.
2. That the declaration does not allege that defendant owed any duty to the plaintiffs in the premises.
3. That it was of no concern to the plaintiffs whether the proceedings were in strict accordance with law or not.
4. The declaration does not state whether or not the board of supervisors would have ordered the spreading of the tax, had all of the proceedings been in strict accordance with the statute.
5. That the declaration shows that if plaintiffs have suffered any injury it was caused by the action of the board of supervisors.
6. That the declaration does not charge any contract relations between plaintiffs and defendants, and is informal and insufficient in law.
From the declaration, we deduce the following state of facts:
1. A lawful petition was filed with defendant’s predecessor for the cleaning out of an existing drain.
2. The first order of determination may reasonably be construed as complying with the prayer to clean out the drain and to straighten it across Loomis’ land.
3. The final order was an order to clean out the drain, supplemented by a determination that the drain be straightened across Loomis’' land as determined by the first order.
4. The letting was advertised merely as a cleaning out of the drain, bids were taken upon this basis, and section 1 of the drain (which was the one included in the proposed straightening) was let to Swan Johnson for $266.40. The contract was to construct the drain according to the survey which showed the line as straightened.
5. The right of way across Loomis’ land not having been acquired, no attempt to straighten the drain was made, and Johnson having cleaned out the old drain, the defendant accepted this as a compliance with the contract, though it was worth less than to have straightened the drain.
7. The board of supervisors has refused to spread the tax.
8. The plaintiff owns by assignment orders amounting to a few dollars, issued to persons for services in the preliminary survey, apparently.
9. It does not appear that he has made any effort to collect them from any one.
Apparently the only cause of complaint is that Swan Johnson’s contract to clean out the drain according to survey was in effect an agreement to construct a new drain across the Loomis lot, which the parties to it had not a right to make, or Johnson to perform, and which he did not perform, and while he did perform the job of clearing out the old drain, defendant’s consent or contract to permit this and accept the same as a compliance was a fraud upon other bidders and persons assessed, who are not complaining of it, because it was not worth as much as the work contracted for, and invalidated the proceedings, which made it proper for the board of supervisors to refuse to spread the tax.
We are able to say that the drain commissioner acquired jurisdiction to clean this drain, that no landowner whose land was to be taken (if there were such) and no landowner assessed for benefits is shown to have questioned the proceedings in any way. The only reason indicated, for the refusal of the board to authorize the spreading of the tax, is the claim that an excessive price for Johnson’s work is included in the computation, unless it be defendant’s omission to declare other contracts void and relet the jobs, which, of itself, would not justify a refusal to order the spreading of the tax.
It does not appear that Johnson has been paid, or that if he had it would be any reason for a refusal of the board to order the tax to be spread. Counsel for plaintiff rely upon the case of Kenyon v. Board of Sup’rs of Ionia
This new computation would necessarily result in but an infinitesimal reduction upon each person questioning it, and none upon others, and the defendant would not be affected by it, both because a corresponding or greater reduction should then be made in the amount to be paid Johnson, and because presumably the sum of 10 per cent, provided by the statute might be sufficient to cover any deficiency.
At the time this defendant surrendered his office to his successor, January 1, 1904, there was a valid proceeding to clean out the drain, a valid assessment of percentages of benefits, and a computation which at the most was slightly excessive, but of which no one, certainly no interested party, is shown to have complained. The supervisors at the preceding October session had refused to author
The judgment is affirmed.
Concurrence Opinion
I concur in affirming the judgment, hut upon the ground that it does not appear from the declaration that the alleged misbehavior of the drain commissioner in any way concerned the plaintiffs. 23 Am. & Eng. Enc. Law (2d Ed.), p. 379 (q); Cooley on Torts (1st Ed.), p. 379; Moss v. Cummings, 44 Mich. 359.