40 Mich. 336 | Mich. | 1879
Delators were contractors with the city of East Saginaw for the grading of a street in that city. Under the provisions of the city charter, payment for the work could only be made from a special assessment made for the purpose.
One of the property owners whose lands were assessed contested his liability, and a levy was made upon his property. An arrangement was then made between him and the city authorities that he should deposit his check for the amount with the city treasurer, and that an .amicable suit should then be instituted by him in the Saginaw circuit court to determine his liability. This arrangement was carried out, and the decision of the court was in his favor.
The relators insist that the delivery of his note to the city treasurer was a payment into the special fund, which entitled them to receive the amount, and that the arrange
There is no occasion to discuss the question whether the delivery of the ch'eck was or was not, under the circumstances, equivalent to payment. Admit it to be a payment,- and it was a compulsory payment, because made under the stress of legal process. First National Bank of Sturgis v. Watkins, 21 Mich., 483. The tax payer was therefore entitled to bring suit to recover it back. And the recovery settles the point that the amount was never lawfully in the special fund, and consequently that relators were never lawfully entitled to it.
The mandamus is denied with costs.
