| Mich. | Apr 13, 1869
These are applications for writs of mandamus to compel certain towns in Cass County to levy such sums as are required to pay principal and interest on certain county bonds alleged to have been lent to the towns upon the condition, afterwards sanctioned by the legislature, that the towns should have the amount apportioned to them as their share of county taxes. The claim made by the respondents, is that all these bonds were properly in fact, as well as in form, merely county obligations, and that the money to pay them should be apportioned upon the property of the entire county by its valuation, instead of being a town charge to the extent of bonds borrowed by or given to each town. The origin of the transaction was as follows :
In November, 1863, the Supervisors of Cass County passed resolutions, proposing to give a county premium or bounty on enlistments, of a bond of one hundred and fifty dollars per man, and appointed how the distribution should be made. In December, before any action had been had, they rescinded such of the resolutions as provided for direct action of the county authorities in paying the bounties, and in lieu thereof adopted another series of resolutions, providing that each town might, if it saw fit, receive a number of bonds, equal to its quota of men, and make its own distribution. These resolutions further declared that, although it should fail in raising its quota, each town should nevertheless retain the bonds and apply them on its proportion of county taxes, when redeemable.
In February, 1864, the action of the several local bodies incurring these obligations was legalized, and it was among other things enacted, that, “whenever the faith of any county has been pledged, and bonds issued and loaned by such county to any township, ward, supervisor district, or city therein, the amount of bonds so taken, with interest, as provided therein, shall be assessed upon the township,
It is 'claimed by the respondents, that these bonds were not lent to the towns, but that the town officers merely acted as county agents in disbursing the bounties offered on behalf of the county. In this connection much stress is laid upon the first resolution, which declares in so-many words that it is expedient to offer a county bounty of one hundred and fifty dollars per man. The original plan provided for carrying out this general resolution was purely one for county purposes, and did not leave the control in the townships. And, had the original plan been carried out, there could have been no doubt on the subject. But the whole plan of distribution, on which the first resolution is silent, was changed. The bonds were only to be delivered to each- township when demanded by its own board. They were to be used' in such way as each town might direct for itself. If not used, they were nevertheless to be retained by the towns; and, instead of being returned for cancellation, were to be applied as cash upon their quota of county taxes.
■ Under these circumstances we can have no difficulty in holding that- they were lent to the towns, and assessable upon them. The object of the statute is plain that the county should not be compelled to provide from its own means for payment, but that the towns should raise the money to pay them. A failure of the towns could not in law exempt the. county from paying the holders; but, as between themselves,- the town was the principal debtor, and the county only- bound as surety.
This being: so, it folloivs that any money paid by the county for principal, or upon the interest due upon that principal,, was money paid to the use of the town. Where such a transaction is authorized, we can.see no good reason why the same rule should not apply .which entitles individ
These considerations will enable the parties to ascertain the proper amounts to be raised, by a simple calculation. It only remains to be considered whether we shall issue a a mandamus to compel action by the towns.
It was admitted on the hearing that there had been no bad faith in the neglect to raise the money, but that the difference of opinion had been honest, and that our decision would be submitted to without a writ. Technically the writ cannot issue precisely as prayed, inasmuch as the roll for 1868 has run out. The law, however, seems to contemplate that a special roll may be made for the collection of these taxes. But we have thought it best, under all the circumstances, not to require this unusual step to be taken, but to leave the matter to be provided for in the taxes of 1869. We shall, therefore, suspend action on the writ at present, without costs to either party, leaving the proceedings open, and not dismissing them.