119 Mich. 634 | Mich. | 1899
The relator is drain commissioner of the county of Gratiot, and the respondent is supervisor of the township of Pine River, in said county. In 1898 the former attempted to lay out and construct a drain, called “Drain No. 104,” and to procure the assessment of the cost thereof, as required by law, upon the township, and owners of lands benefited thereby. The board of super
The brief of counsel for the respondent attacks the proceedings of the drain commissioner upon many grounds, and apparently seeks to justify the respondent in his disobedience of the order ,of the board of supervisors to spread the tax by showing that the drain proceedings were irregular. Among the reasons given for the sunervisor’s refusal are:
1. The order of the township board.
3. Because he had been informed that the right of way had not been lawfully secured. •
As reasons why the order of the circuit court should be reversed, he adds to the above the following:
3. That the petition for mandamus does not affirmatively allege that the relator had obtained the right of way; that it does not show any legal authority for the apportionment of the tax.
4. That the drain cannot be completed by October 1, 1898, and therefore the tax should not be added to the current roll.
5. That the relator falsely stated that the estimated cost of the drain was $3,400, and that the roll, as corrected by the striking off 'of the assessment of two persons, will produce but $3,148.40.
These are the principal claims mads in the answer.
We have held that the supervisor is not vested with the authority to sit in judgment upon the action of the board of supervisors. When, in the exercise of their lawful authority, they order a tax to be spread, it is his duty to spread it, and not block the regular course of the public business by refusal because he may think that the board should have decided differently. Nor is it a part of the
It is urged that the cases of Nugent v. Erb, 90 Mich. 278, and Board of Supervisors of Cheboygan Co. v. Township of Mentor, 94 Mich. 386, justify respondent’s conduct. The prevailing opinion in the latter case admits that circumstances must be extraordinary which will justify a refusal by an officer to perform a statutory duty, and the refusal to grant the writ in that case may be ascribed to the exercise of a lawful discretion. See Laubach v. O'Meara, 107 Mich. 32.
It is said that the board of supervisors did not order the taxes spread. The circuit judge’s return shows that the answer raised no such question, and that the proceedings of the board furnished upon the hearing show that the order included the assessment for this drain. We must take this as conclusive.
The order of the circuit judge is affirmed, with costs against the respondent.