Iron County Bd. of Sup'rs v. City of Crystal Falls, Docket No. 8849

• Citation: 23 Mich.App. 319,178 N.W.2d 527
• Decision Date: 24 April 1970
• Docket Number: No. 3,Docket No. 8849,3
• Parties: IRON COUNTY BOARD OF SUPERVISORS, Plaintiff-Appellee, and Frank J. Kelley, Attorney General of the State of Michigan, ex rel. Municipal Finance Commission, Intervening Appellee, v. CITY OF CRYSTAL FALLS et al., Defendants-Appellants
• Court: Court of Appeal of Michigan (US)

Page 527

178 N.W.2d 527

23 Mich.App. 319

IRON COUNTY BOARD OF SUPERVISORS, Plaintiff-Appellee, and Frank J. Kelley, Attorney General of the State of Michigan, ex rel. Municipal Finance Commission, Intervening Appellee, v. CITY OF CRYSTAL FALLS et al., Defendants-Appellants.

Docket No. 8849.

Court of Appeals of Michigan, Division No. 3.

April 24, 1970.

Leave to Appeal Denied July 17, 1970.

Released for Publication July 23, 1970.

Gordon J. Jaaskelainen, Wisti, Jaaskelainen & Bourland, Hancock, for defendants-appellants.

H. James Starr, Lansing, for plaintiff-appellee.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Maxine Boord Virtue, Milton I. Firestone, Asst. Attys. Gen., for intervening appellee.

Before R. B. BURNS, P.J., and FITZGERALD and VAN DOMELEN, ^* JJ.

PER CURIAM.

This is an appeal from a judgment entered in the circuit court of Iron County issuing a writ of mandamus directing defendants to proceed immediately with collection of a tax to pay the interest and principal on county hospital bonds yet unsold.

Plaintiff-appellee is the Iron County Board of Supervisors. Defendant-appellant is the City of Crystal Falls and the intervening appellee is the Municipal Finance Commission, which is represented by the Attorney General.

On April 23, 1968, plaintiff adopted a resolution for the issuance of county hospital bonds in the amount of $1,600,000. The resolution recited that the electors of the county had voted on May 16, 1967, to authorize such an issue. The bond resolution further provided for bonds to be issued which would mature serially beginning May 1, 1970, with interest payable on May 1, 1969 and semi-annually thereafter.

At its regular October meeting, the plaintiff adopted a separate resolution specifically authorizing 'a tax of 2.03 per $1,000 based on Iron County's 1969 state equalized valuation of $59,361,645 on the 1969 tax rolls concerning debt service taxes on the hospital bond issue for the County of Iron, if legal.'

Apportionment certificates were served upon each of the county townships, including the defendant, with the statutory direction to levy and collect the taxes as set forth. The defendants refused to levy the taxes. Consequently, plaintiff brought the action in the Iron county circuit court asking that a writ of mandamus be issued requiring defendants to levy and collect the taxes. The mandamus issued and defendants have appealed.

Mandamus is the traditional remedy for compelling the performance of mandatory legal duties by public officials. Clearly, the granting of the remedy is discretionary with the trial court. Livonia Drive-In Theatre Co. v. City of Livonia (1961), 363 Mich. 438, 109 N.W.2d 837; State Highway Commissioner v. Ottawa Circuit Judge (1954), 339 Mich. 390, 63 N.W.2d 677; Hazel Park Racing Association, Inc., v. Racing Commissioner (1953), 336 Mich. 508, 58 N.W.2d 241; City of Berkley v. Township of Royal Oak (1948), 320 Mich. 597, 31 N.W.2d 825; De Young v. State Land Office Board (1946), 316 Mich. 61, 24 N.W.2d 424; St. Ignace City Treasurer v. Mackinac County Treasurer (1944), 310 Mich. 108, 16 N.W.2d 682; Powers v. Secretary of State (1944), 309 Mich. 530, 16 N.W.2d 62; McLeod v. State Board of Canvassers (1942), 304 Mich. 120, 7 N.W.2d 240; Tennant v. Crocker (1891), 85 Mich. 328, 48 N.W. 577; Hall v. Risley (1888), 69 Mich. 596, 37 N.W. 570.

Only a clear abuse of its discretion warrants interference by this Court on appeal. Kwaiser v. Peters (1967), 6 Mich.App. 153, 148 N.W.2d 547; Johnson v. Kramer Bros. Freight Lines, Inc. (1959), 357 Mich. 254, 98 N.W.2d 586; Spalding v. Spalding (1959), 355 Mich. 382, 94 N.W.2d 810; Detroit Trust Co. v. Sosensky (1942), 300 Mich. 353, 1 N.W.2d 570.

To support the issuance of mandamus, a plaintiff must have (1) a clear legal right to performance of the specific act sought to be compelled and (2) the defendant must have a clear legal duty to perform such act, which must be a ministerial act, the duty to perform which is prescribed and defined by law with such precision and certainty as to leave nothing to the exercise of discretion or judgment. Taylor v. Ottawa Circuit Judge (1955), 343 Mich. 440, 72 N.W.2d 146; State Highway Commissioner v. Ottawa Circuit Judge, Supra; Hazel Park Racing Association, Inc., v. Racing Commissioner, Supra; Detroit Board of Education v. Superintendent of Public Instruction (1943), 304 Mich. 206, 7 N.W.2d 273.

Defendant does not dispute these principles or claim that its duties are not ministerial or that appellants have no legal right to compel performance of tax collections. The defendant argues, however, that notwithstanding the above, mandamus should not issue to accomplish an admittedly illegal purpose, citing Johnson v. Board of Supervisors of Ionia County (1918), 202 Mich. 597, 168 N.W. 421; and Board of Supervisors of Cheboygan County v. Supervisor of the Township of Mentor (1892), 94 Mich. 386, 54 N.W. 169.

A careful reading of these cases demonstrates that the circumstances must be 'exceptionally extraordinary' before a supervisor may refuse to perform a ministerial duty.

In the Johnson case, for example, a board of supervisors was required to collect a tax which had been held invalid fifteen years before in a proceeding...