Auditor General v. Board of Sup'rs of Bay County
| Decision Date | 10 October 1895 |
| Citation | 64 N.W. 570,106 Mich. 662 |
| Parties | AUDITOR GENERAL v. BOARD OF SUP'RS OF BAY COUNTY ET AL. |
| Court | Michigan Supreme Court |
Original mandamus proceeding, brought in the supreme court by the auditor general to compel the board of supervisors of Bay county and William V. Prybeski, county treasurer, to collect and pay to the state certain moneys for taxes. Issues of fact were framed, and sent down to the circuit court for the county of Ingham for trial before a jury. Upon a return to supreme court of the finding below, the case was argued and submitted. Writ issued.
Const art. 10, � 10 giving the board of supervisors exclusive power to fix the compensation for all services rendered for the county, is not violated by Pub.Acts 1885, No. 169 authorizing the auditor general to charge the expense of maintaining the militia to the county where their services were rendered, though the claim is not submitted to the county supervisors.
Fred A. Maynard, Atty. Gen. (A. A. Ellis, of counsel), for relator.
Isaac A. Gilbert, Pros. Atty. (McDonell & Hall, Lee E. Joslyn, and U. R. Loranger, of counsel), for respondents.
The relator seeks to compel the officers of Bay county to collect and pay to the state upwards of $100,000, which he claims to be due to the state from said county. He professes to claim only sums which have been collected by said county since December 31, 1884, alleging that at that date said county had overpaid the state, and that the state soon after paid to said county the sum of $95, in full of the balance due to the county. The county admits this payment, but alleges that at the time it was made the state was indebted to the county for a large amount, which it had paid, and the state received under the mistaken belief that it was a valid obligation against the county, and it asks that this sum be allowed in reduction of relator's claim. Apparently the county had paid all claims made by the state up to December 31, 1884, and something more, and it asks that the correct amount be ascertained, and allowed against the relator's claim. In other words, the county desires that the account between itself and the state from 1869 to the date of filing the petition be examined, and a balance struck, disregarding the fact that on December 31, 1884, a sum was paid by the state as a balance due upon account. It denies that there was a settlement at that time, and questions the authority of the county treasurer to make a valid settlement. Whatever may be thought about the power of the treasurer to settle, or of the effect of his acceptance of the $95, it is plain that the state received the funds from the county; and, if it received more than it was entitled to, the most that can be said is that the county had a meritorious claim against the state for the excess, and this we are asked to enforce against the state in this proceeding. If this is a just claim upon the part of the county, it can amount to no more than a claim against the state for money paid to the use and benefit of the county, which, it has been repeatedly held, cannot be made the subject of an action against the state, as a state cannot be sued without its consent. The case of Ambler v. Auditor General, 38 Mich. 746, is in point, and closely resembles the present case, except that here the proceeding was instituted by the auditor general, while in that case he was respondent in a mandamus proceeding, upon relation of the county treasurer. But in that case, like this, the amount in controversy was money paid to the state treasurer under a mutual mistake of law, and the court denied relief, expressing doubt of the propriety of interference with matters of a purely public and executive nature, where the auditor's action is not purely mechanical. "While there is, no doubt, some difficulty in drawing with precision any exact line of jurisdiction, we think it very clear that, where money has gone into the state treasury, not as a separate and independent item wrongfully received, but as part of a general balance rightfully received, the recovery of it from the state, if not voluntarily allowed within the authority of some proper officer, must fall within the same rules that would apply to any other pecuniary demands against the state. If this money had been found in a city or county treasury among the book balances or other charges or credits, or if it had been retained by an individual upon an error in stating accounts, it could not be distinguished from other causes of action usually prosecuted in a suit for money had and received.
It is simply so much money kept back out of the collections made by the state for the benefit of the county. If the state could be sued, it would certainly not be a proper case for mandamus. The fact that actions will not lie against the state does not change the nature of the claim, or make it anything but a state but." This subject was again before the court in the case of Auditor General v. Treasurer, 73 Mich. 29, 40 N.W. 847. Mr. Justice Campbell reviewed the case of Ambler v. Auditor General, emphasizing the rule there stated. In the case of Auditor General v. Board of Sup'rs of Shiawassee Co., 74 Mich. 537, 42 N.W. 143, Mr. Justice Long reaffirms the doctrine, and distinguishes between cases where the illegal charge is made the subject of proceedings on behalf of the state to collect and those where it is sought to be introduced as a set-off or counterclaim, the same having been already paid to the state. The doctrine was recognized in the case of Auditor General v. Board of Sup'rs of Midland Co., 84 Mich. 121, 47 N.W. 579, but was held not applicable to the facts in that case. We must therefore hold that claims on behalf of the county which arose before December 31, 1884, cannot be considered.
The county may, however, question the validity or amount of any item of the relator's claim, and several important questions arise in relation to the charges made against the county since December 31, 1884. Since that date the account has been running, balances having been struck by relator from time to time; but the balance against the county has varied, and, as a rule, has steadily increased. It is said on relator's behalf that on December 30, 1886, the county paid in cash the balance due the state, as shown by a quarterly statement rendered September 30, 1886, and it is urged that this precludes inquiry back of that date; but the petition contains a statement of account, starting, as already said, in 1885, and showing annual balances carried forward. Relator's claim is based upon the theory of an open, unsettled account from that date. There is, therefore, force in the claim that none of these items has been paid, so as to preclude the respondent from questioning its validity. Inasmuch as the respondents' right to contest is limited to the claims presented, it is unnecessary to investigate items back of January 1, 1885. This eliminates several questions argued at length in the briefs.
The practice in the auditor general's office was to charge to each county the state taxes assessed. The county was credited with such cash as was paid upon such taxes, and by the amount of state taxes in the delinquent list. Later it was charged with such sums as the county treasurer reported collected by him upon such lists, and he was credited with payments upon such collections when made. In addition to this account, a general account was kept with the county, in which other items were charged and credited; e. g. for the year 1885. The treasurer was charged on December 31st with interest on balances, and on taxes charged back, an item for cash paid for deaf and dumb, amounts paid for state troops in aid of civil authorities, delinquent taxes refunded, and items of cash paid by the state for redemptions received and collections made by the state. The county was credited with items of cash collected by the state. Of all these items none go back of December 31, 1884. Each account shows a balance due the state, and such balances are carried forward in their respective accounts, and constitute the first items for the succeeding years, and there has never been a time, so far as the petition shows, when there was not such a balance at the end of the year.
Arenac County Taxes.
Among the questions raised by respondent is one that affects the amount of taxes apportioned to Bay county. In the year 1883 the legislature detached a portion of the territory within the county of Bay, and organized the county of Arenac. When the state tax was apportioned, the auditor general apportioned it upon the valuation of Bay county as shown by a former equalization by the state board, which included all of the territory formerly within the county of Bay. The effect of this was to impose upon Bay county the state taxes properly belonging to, and which should have been apportioned to, Arenac county. Correspondence was had about the matter and the auditor general asserted that the course taken was the proper one; that Bay county should assess and collect the tax, and adjust the matter with the county of Arenac. The board of supervisors of Bay county thereupon apportioned the state tax, and it was collected. It is now contended that the apportionment was illegal to that extent, and that the amount is not a valid charge against the county. It cannot be denied that the apportionment to the county of Bay was excessive, but it is difficult to distinguish between this excess and one arising in any other manner. Apportionments of state and county taxes are often incorrect and excessive as to one or another locality, and, while the proper officers might be justified in not assessing or collecting such excess, it is not so clear that they may refuse to pay it over after...
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