Township of Marathon v. Township of Oregon

• Decision Date: 09 June 1860
• Citation: 8 Mich. 372
• Court: Michigan Supreme Court
• Parties: The Township of Marathon v. The Township of Oregon

8 Mich. 372

The Township of Marathon v. The Township of Oregon

Supreme Court of Michigan

June 9, 1860

Heard May 29, 1860 [Syllabus Material] [Syllabus Material] [Syllabus Material]

Error to Lapeer circuit.

The township of Oregon, by act of the legislature of 1846, was organized from territory constituting a part of the township of Marathon. In March, 1856, as claimed by the plaintiff, a joint meeting of the township boards of the two towns was had, for the purpose of apportioning the debts of the township of Marathon, at the time of the formation of Oregon therefrom; which meeting found due from the latter township to the former, as its proportion of such indebtedness, $ 1,483, to recover which this action was brought. Judgment having been rendered for the defendant in the court below, the plaintiff brought error.

The case having been once argued in this court on the merits, a re-argument was ordered by the court on the question, whether the plaintiff had any remedy, except by mandamus, to enforce payment of the amount of the indebtedness of the old town apportioned as due upon the division.

Judgment affirmed, with costs.

G. V. N. Lothrop, N. B. Eldredge and M. E. Crofoot, for plaintiff in error:

1. Mandamus lies generally to compel the performance, by public officers or inferior tribunals, of ministerial duties; or of public duties plainly enjoined, and the exercise of which are not discretionary: 3 Mich. 428; 18 Pick. 446; 1 O. S. R., 149; 11 How. 289; 12 Pet. 524; 10 Pet. 497; 17 How. 230; Ibid., 304. And perhaps to correct manifest abuses of discretionary power: 3 B. & Ad., 704; 7 B. & C., 692; 3 Mich. 475. But the duty must be a clear, legal and imperative duty: 3 Ad. & E., 425; 25 Barb. 73; 1 Doug. Mich., 320; 1 Kern. 574; 12 Pet. 525; 11 How. 289; 1 O. S. R., 77; 2 Chand. Wis., 247. And it will not be granted, where there is any other adequate remedy, by action at law: 2 Burr. 1045; 1 T. R., 404; 2 Doug. 526; 1 Doug. Mich., 320; 10 Johns. 484; 2 Cow. 444; 1 Wend. 319; 10 Wend. 363; 25 Wend. 685; 2 Hill 45; 6 Hill 243; 23 Vt. 478. Though it seems it may be allowed as a concurrent remedy where ministerial officers and corporations may be liable to an action on the case for neglect of duty: 23 Wend. 461; 1 Kern. 573. But never to enforce mere private rights, or to collect a debt as such, though it may be employed to enforce a ministerial act to aid in the course of such collection, where the law directs a specific mode of collection: 25 Barb. 73; 3 R. I., 22.

2. It may safely be assumed that the writ in this case must be asked, either--1st, against the town; or, 2d, against the town board; or, 3d, against the supervisor.

Mandamus will not lie against the town. For to do so would be to apply the process to the collection of a debt. The town is the debtor, and it might as well be resorted to to compel debtors in all cases to pay their debts. The debt in this case stands against the township, like any common debt. No mode for the collection thereof is provided: Comp. Laws, § 604. The right is to be enforced by common law remedies.

Nor will it lie against the town board. The town board is not a legal tribunal to which claims must be presented for adjudication. Their action is not necessary to, or binding on, creditors. The board only represents the town in the amicable settlement of business. Their action or non-action is therefore no part of a suitor's remedy. But the claim has already been settled by the proper board--the joint board raised for the special purpose. It was thus fully and finally made a town charge. It is not within the jurisdiction of the town board, who can neither make it a town charge nor reject it: Comp. Laws, § 604; Ibid., § 564. Nor can the town board raise the money to pay this debt. When the town neglects or refuses "to vote such sum or sums as may be necessary to defray the ordinary township expenses," then the board may raise the requisite amount: Comp. Laws, § 597. This is all they can do; and they will not be commanded to do more: 15 Barb. 607.

Nor will it lie against the supervisor. For there is no law which makes it his plain official duty to include this claim in his tax assessment. Nay, there is no law which empowers him to do it. Should he assume to do so, his act would be illegal.

The supervisor must have direct warrant, either in some statute or in the certificate of the action of some competent body, before he has jurisdiction to assess any tax whatever: 5 Mich. 182.

Township indebtedness may be collected in two ways. First, by voluntary payment, which may be either by the town board within the limits of their authority, or by vote of the town at a lawful meeting: Comp. Laws, §§ 495, 564. Second, by action at law, or other proper proceeding in the legal tribunals.

After recovery of judgment, the statute expressly restrains the farther prosecution of common law remedies; it withholds execution, and directs that the amount "shall be levied and collected as other township charges:" Comp. Laws, § 4917. Here, for the first time, is created a plain official duty to levy a tax for a township debt. On the production of a certified copy of a judgment, to the supervisor, he would be required to levy it as a part of his assessment. Then, and not till then, is it a tax required by law. And at this stage a mandamus would lie to enforce the performance of this duty.

We have not overlooked a common class of cases found in our own reports and elsewhere, where mandamus has been held the appropriate remedy against town and county officers. Cases for the collection of damages awarded in laying out highways, etc., are of this class. In these cases it will be found that the statute expressly directs a mode for the payment of the award. An official or a ministerial duty is created, and it is this duty that the writ is employed to enforce. Such are, with many others, the cases in 2 Mich. 187; 5 Mich. 223; 5 Cow. 292; 10 Wend. 363; 16 Wend. 520; 4 Barb. 64; 20 Barb. 295; 4 Zab. 54; 22 Pick. 264; 3 Wis. 333.

3. Even if mandamus might be a lawful remedy, it is not an exclusive one. For, though it is true that where a statute creates a new right and gives a new remedy, this remedy is exclusive; yet when the statute merely creates the right, and is silent as to remedies, all the common law remedies are open: 1 Chit. Pl., 112. Here the statute makes the claim in question a debt, and declares that the new town shall pay it, and there leaves it. In such case an action at law may be maintained: 1 Wend. 54; Ibid., 319; 25 Wend. 680; 2 Hill 45.

M. Wisner and A. B. Maynard, for defendant:

The statute providing for the division of a township prescribes the rule for the apportionment of its debts. It creates the liability on the part of the new township, and the amount of such liability is fixed and determined by the apportionment made by the township boards in the manner provided by the statute. No suit could be maintained by the township so divided for any share of its indebtedness until the apportionment had been made. The township board of the new township might be compelled by mandamus to meet for the purpose of making the apportionment: 2 Cow. 485.

The statute provides that no execution shall be issued on a judgment against a township, but that the same shall be collected like other town charges: Comp. L., p. 1309. A judgment, therefore, would be no more effective as a remedy, than the judgment of the township boards. Their action is judicial and conclusive. It is not open to review directly, or collaterally by suit. The defendant could as effectually resist a mandamus to compel the payment of a judgment of a court, as one to enforce the payment of the sum apportioned by the township board: 13 Pet. 498; 5 Rawle 18; 19 Wend. 56.

If, then, the judgment or decision of the township boards is binding upon the townships, must not the plaintiff seek payment of such judgment in the manner pointed out by the statute, by presenting the same to the township board of the defendant, and demanding their order on the treasurer of the town? The statute provides how the charges against a township shall be allowed and paid, and to hold that the payment of this or any other claim against a township, especially where the amount is settled and adjusted, could be enforced by action, would be to treat the statute as a nullity: 2 Sandf. 460.

A remedy that would exclude mandamus, must be legal and competent to afford relief to the applicant upon the very subject matter of his application: 1 Barb. 34; 1 Doug. Mich., 319; 3 Mich. 427; 4 Mich. 188. Had the plaintiff applied to this court to enforce the payment of the sum apportioned by the township boards, would the application have been refused on the ground of there being an adequate and effectual remedy, by action, upon the subject matter of his application?

The following cases fully establish that mandamus is the appropriate and only remedy in cases of this character: 2 Mich. 189; 15 Barb. 529; 20 Barb. 294; 2 Binn. 275.

Campbell, J. Martin, Ch. J. and Manning, J. concurred. Christiancy, J. dissented.

OPINION

Campbell J.:

This suit is brought to recover an ascertained sum found by the united action of the township boards to be due from Oregon to Marathon, upon a division of the latter township, whereby the former was set apart and became liable for its share of the debts to be thus determined: Comp. L., §§ 247-8.

Putting aside, for the present, all questions concerning the regularity or sufficiency of the proceedings of the local authorities, the important consideration is suggested whether an action will lie for the sum ascertained. Townships may be sued in some cases, and judgments obtained against them; but it is claimed by the defendant...