McFarlan v. Cedar Creek Tp.

• Decision Date: 02 December 1892
• Citation: 93 Mich. 558,53 N.W. 782
• Court: Michigan Supreme Court
• Parties: McFARLAN v. TOWNSHIP OF CEDAR CREEK.

53 N.W. 782

93 Mich. 558

McFARLAN v. TOWNSHIP OF CEDAR CREEK.

Supreme Court of Michigan

December 2, 1892

Error to circuit court, Wexford county; FRED H. ALDRICH, Judge.

Action of assumpsit brought by Henry C. McFarlan against the township of Cedar Creek to recover taxes paid under protest. From a judgment in favor of plaintiff, defendant brings error. Affirmed.

I. C. Wheeler and M. Brown, for appellant.

Pratt & Davis, for appellee.

MCGRATH C.J.

This is an action to recover taxes claimed to have been illegally assessed and paid under threat of levy and protest. The trial court found, among other things, as follows: "( a) That prior to the 1st day of April, 1889, the commissioner of highways in said township had drawn a large number of highway orders, payable out of the highway funds belonging to the different highway districts of said township numbered in said orders; that said orders had been drawn from time to time to pay for work and labor performed on the roads of said several districts, or for plank or material employed in building or repairing said roads in said road districts from the year 1882 to 1888, inclusive, and amounting in all to twelve or fifteen hundred dollars. (b) That at the township election held in said township in April, 1889 the following resolution was adopted, to wit: 'On motion of P. W. Hinman, which was seconded by Ed. Moffit, the following resolution was adopted, viz.: That the township board and commissioner of highways shall not lay out, open, or take up or repair, any highways for one year unless some highway shall become dangerous to the traveling public, and not then if it can be repaired with district work [and amended hereby adding;] unless considered absolutely necessary by township board, and that we raise one half of one per cent. on assessed valuation for special highway tax to pay highway indebtedness, as far as it will go. Carried. Amended by Warren Seaman. Motion carried; also motion as amended.' (c) That there was no highway indebtedness of said township at that time, and that the indebtedness referred to in said resolution, and which said tax was voted to pay, was the indebtedness owing by the various road districts in said townships, as evidenced by said highway orders drawn by the commissioner of highways on the highway tax belonging to each of the several road districts in said township. (d) That said resolution was certified by the township clerk to the board of supervisors, and the board of supervisors, at their annual session in October, 1889, voted to authorize supervisor of the defendant township to levy a special highway tax of $1,114.43, and that the said supervisor of said township did proceed to levy the same on all the taxable property of said township. (e) That all of said highway orders were drawn upon the road districts outside of the road district in which said plaintiff resided, and in which he owned property upon which said tax was assessed; that road district number four in said township, in which the plaintiff owned property of the assessed value of $------, was in arrears at the time of the assessment of said tax to the amount of $141.48. ( f) That on the 20th day of February, 1890, Frank Rose, the township treasurer of said township, was proceeding to collect the tax assessed on the assessment roll of said township, and called upon said plaintiff, and demanded of him the payment of said special highway tax, and then and there threatened to levy the same on the stock of merchandise in the store of and belonging to said plaintiff; that said plaintiff, in order to prevent said levy, under compulsion, paid said special highway tax, amounting, with fees of said treasurer, to the sum of $29.36, under protest, which was in writing." The finding concludes as follows: "From the facts found as above, I find as a conclusion of law that said levy of said special highway tax was illegal and void, and the payment of the same was involuntary, and its collection by said Frank Rose, township treasurer for said township, was an illegal exaction, and that said plaintiff is entitled to a...