Smith v. Board of Supervisors

115 Mich. 202 | Mich. | 1897

Moore, J.

This is a proceeding to compel the respondent to reconvene, and order spread upon the assessment rolls of three townships a drain tax amounting to over $13,000. The return of the respondent shows that the proceeding was one for the cleaning out of a 'drain already established, 17 miles long, and that, though the contract has been let, no work has been done under it. The drain commissioner, in his notice of the letting, advertised that “said job will be let by sections; the section at the outlet of said drain will be let first, and the remaining sections in their order upstream, in accordance with the diagram.” The return of respondent shows that, at the time appointed for the letting 'of the contract, parties who were responsible were present, ready to bid for any sections that might be offered, and that the drain commissioner refused to receive bids for the construction of the drain in sections, and insisted upon letting it as an entirety. The commissioner claims that he offered to let the job in sections, but that there were no bidders, and that it was better for all the parties to let the job as an entirety, as it cannot be done in any manner except by a steam dredge. The return denies this, and claims, in addition to what has been stated, that the job can be done much more satisfactorily and much cheaper with scrapers and shovels than with a steam dredge, and that when the drain was originally dug no steam dredge was used. The return also alleges fraud in the letting of the contract. It also alleges that the petition only asks for the cleaning out of the drain, while the commissioner has undertaken to deepen, widen, and in some places'change the route of, the drain. The claims of the respective parties are supported by affidavits.

For the purpose of this proceeding, the return of the respondent must be taken as true. The relator relies upon Smith v. Carlow, 114 Mich. 67, and Brady v. Hayward, Id. 326, for his authority to let the job as an entirety. A comparison of the cases,-however, will show they were not at all similar. In the last-named case the job was let in sections, and in both cases the letting followed the notice of the letting, while in this case the notice stated the contract would be let in sections, while, according to the return, the commissioner refused to let the contract in sections, though there were persons ready to take it in that manner. In Smith v. Carlow it was made to appear that the only practicable way, and the cheapest way, was to let the job as an entirety. Here, according to the return, it was not only practicable to let the job in sections, but it was the most economical way to have it done. In the case of Smith v. Carlow the drain was completed, and an expense of $30,000 incurred, and the court held that it would be unjust to allow the taxpayers to take advantage of such an objection after the work had been completed. Here the work has not yet been entered upon. While we have held the statute to be directory, its provisions cannot be wholly ignored; and, when the letting has been advertised to be made in sections, there should at least be an offer to let it in sections before it is let as an entirety, and especially if it is made to appear that there is no reason for not following the manner of letling as announced in the notice of letting.

Under the record as made here, we deem it our duty to deny the writ.

.The other Justices concurred.