73 Mich. 604 | Mich. | 1889
In the assessment roll of the year 1887 the supervisor spread an assessment reported to him by the town clerk of the township of Avon, for benefits set opposite the N. part of the E \ of the N. W. \ of section 33, bounded south by Cone’s land, of $49.96. This land was owned by the plaintiff, and he paid the tax to the township treasurer under a written protest against-the legality of the tax, and then brought this action in a plea of trespass on the case to recover it back. The declaration sets out that the supervisor wrongfully and illegally assessed a tax purporting to be a drain or ditch tax for the Taylor drain, so called, against the plaintiff, and purporting to be on his premises, for $49.96, and
The objection is taken that this action will not lie against the township. The plaintiff, however, insists that it is authorized by section 42, Act No. 153, Laws of 1885. This act is the general tax law for the assessment of property and levy of taxes for State, county, town, school, and highway purposes, and relates to no other kind of taxes. Section 42 applies only to the taxes authorized to be assessed by Act No. 153. Drain taxes for benefits do not come within the letter or spirit of this act. The taxes assessed for the construction of drains, as benefits derived to the lands assessed, are authorized, and the mode of procedure to assess and collect the same is provided for, in Act No. 227, Laws of 1885. These taxes are special, and raised and set apart for a special purpose, and can be applied to no other. They are not raised by the township for any of the purposes for which township taxes are assessed and raised. When collected, they are held by the township treasurer subject to be paid out on the order of the drain commissioner, countersigned by the township clerk. The supervisor acts merely in a ministerial
“ In case of drains established by the township drain commissioner, the taxes, when collected, shall be disbursed by the township treasurer.”
We see no reason why the township is or should be liable for the illegalities in the proceedings to lay out and establish a drain, or why it should be obliged to pay back taxes illegally assessed and collected for drain taxes. If this judgment against the township is affirmed, it will have to be collected by a general levy upon the town, instead of lands specially benefited by the drain, and there is no way for the town to reimburse itself. If the township was legally liable for the torts and misdoings of its officers in laying out drains, and collecting the taxes for benefits, this would be no objection; but there is no statute making it liable, and there is no general principle of law upon which such liability can be based. Dawson v. Township of Aurelius, 49 Mich. 479 (13 N. W. Rep. 824); Camp v. Township of Algansee, 50 Id. 4 (14 N. W. Rep. 672); Anderson v. Hill, 54 Id. 485 (20 N. W. Rep. 549).
As this disposes of the plaintiff’s right of action, the other points raised will not he discussed.
The judgment must be reversed, and a judgment