Aylesworth v. Gratiot County

• Decision Date: 30 November 1889
• Citation: 43 F. 350
• Parties: AYLESWORTH v. GRATIOT COUNTY.
• Court: U.S. District Court — Eastern District of Michigan

43 F. 350

AYLESWORTH v. GRATIOT COUNTY.

United States Circuit Court, E.D. Michigan.

November 30, 1889

Syllabus by the Court

An action lies in the federal court upon drain orders drawn by a county drain commissioner upon a county treasurer, though the orders themselves create no debt against the county, and the sole duty of the county officers is to assess and collect the cost of constructing the drain from the owners of property benefited by it. In such case the judgment is special, and is enforceable only by mandamus to compel the collection of the tax.

Such orders are so far negotiable that suit may be brought upon them by the holder, though the court would have no jurisdiction of an action brought by the assignor of such holder.

Such orders are prima facie valid, and plaintiff is not bound to prove the regularity of the proceedings for the assessment and collection of the tax.

A decision of the supreme court of the state denying relief to a prior holder of such orders is not res adjudicata.

This was an action upon certain orders originally issued to one John Scriven for work done and materials furnished in the construction of two drains in the defendant county, such drains being located in the townships of Newark, New Haven and Arcada, and no other. These orders were issued in pursuance of Act 43, Laws 1869, as amended by Act No. 169 Laws 1871. To the special count in the declaration were also attached the common counts, together with copies of these orders, which were signed by the drain commissioner and countersigned by the chairman and clerk of the board of supervisors. An indorsement upon such orders shows that they were presented for payment to the county treasurer about the time they were issued, and that on the 31st of March, 1883 all but one of them were again presented, and a payment made thereon.

The following is a sample copy of the orders, with their indorsements.

'No. 257.

ITHACA, MICHIGAN, Nov. 7th, 1872.

'County Treasurer, Gratiot County: Pay to John Scriven or bearer three hundred and seventy-six dollars out of the drain tax assessed in the township of Arcada for construction of Newark and Arcada ditch in said township.

Act number 169, Laws 1871. D. W. ATTENBURG,

'Drain Commissioner of Gratiot County.

'Countersigned: H. T. BARNABY.

'Chairman Board of Supervisors.

'N. CHURCH, Clerk.'

Indorsed

'Presented for payment this 16th day of Nov., 1872.

'W. S. TURK, Treasurer Gratiot County, Michigan.

'Paid March 31st, 1883, on the within order, $148.46.

'S. B. HAVERLO, County Treasurer.

'Received March 31st, 1883, of said county treasurer the above $148.46 as the agent of Eliza W. Brownell, of Niagara county, New York.

(Signed) 'W. E. WINTON.'

The defendant pleaded the general issue, and gave notice of the following defenses: First, the statute of limitations; second, that the orders were payable out of a special fund, which was not supplied with fund with which to pay them on account of the action of the party through whom plaintiff claimed title; third, res adjudicata.

These drains were constructed by John Scriven under contract-- First, with the drain commissioner of Gratiot county; second, under contract with E. W. Kellogg, special commissioner by Act 445, Laws 1871, which provided that certain state lands in Gratiot county might be use in the payment for certain drains located in said township. These lands were benefited by the construction of the drains, and were assessed for the same. Before the assessment was reported to the commissioner of the land-office, Scriven made his selection of lands in payment of his contract with Kellogg. The commissioner of the land-office would not issue patents to Scriven until these taxes were paid. In 1879, Scriven brought a suit in chancery in the circuit court for Gratiot county to set aside these taxes, and compel the commissioner to issue patents, and had a decree in his favor as prayed. This decree was not appealed from, and patents were issued. By this means the special fund from which these orders were to be paid was diminished by about $2,000. Had those taxes been collected by the land commissioner, and turned over to the county treasurer, the orders would all have been paid.

In 1881, one Eliza W. Brownell, who claimed to have received these orders from Scriven, petitioned the supreme court of Michigan for a mandamus against the board of supervisors compelling them to pay these orders. Her petition was denied. 49 Mich. 414, 13 N.W. 798.

Marston & Jerome, for plaintiff.

F. H. Canfield and C. J. Willett, for defendant.

BROWN J.

While this is nominally an action to recover the amount of these orders from the county, the real object is to procure the issue of a writ of mandamus for the collection of this tax from the property benefited by the drain. Several defenses are interposed, which I will proceed to consider in their order.

1. That the orders created no obligation against the county. If by this it is intended merely to urge that the orders created no debt against the county which, as a municipal corporation, it is bound to pay, the position taken is correct. It is well settled that, where public improvements are by law to be made at the expense of the adjoining property, no charge against the corporation is created, and its only duty is to take the necessary and legal steps to collect the assessment, and to pay it to the parties justly entitled thereto. Thus it was held in the case of Lake v. Trustees, 4 Denio, 520, in an action upon an order given by the president of a village upon the treasurer to pay the contractor a certain sum out of particular funds, that the corporation was the agent or instrument of the land-holder having an interest in the matter, to ascertain how much each one ought to pay and another to receive, and collect the money from those who were benefited, and see that it was properly applied to the particular object, and that this was the extent of its duty. It was held that the plaintiff could not recover generally against the corporation as for a debt, and it was intimated that the plaintiff had a remedy by mandamus, or by an action on the case against the trustees for neglect of duty. This is also the intimation of the supreme court in the case of Ogden v. County of Daviess, 102 U.S. 634. And I believe that the authorities are uniform to the effect that no action will lie against the county upon these obligations as for a debt chargeable against it. Goodrich v. Detroit, 12 Mich. 279; Bank v. Lansing, 25 Mich. 207. The proper remedy in this class of cases in the state courts is by writ of mandamus to compel the assessment and collection of the tax by the officers charged with that duty, and payment of the same to the party entitled thereto.

As a petition for a writ of mandamus in the federal court will not be entertained as an original proceeding, it was at one time supposed that no action of any kind would lie against a municipality. In the case of Boro v. Phillips Co., 4 Dill. 216, it was held that the failure or refusal of the county to discharge its duty in such cases did not make it liable to a general judgment for the obligations of the particular district, and could not be made the foundation of an action against the county for a money judgment. This may be entirely true, and yet it does not follow that there is no remedy in the federal court where the plaintiff is entitled to sue therein by reason of his citizenship. The general rules is believed to be without exception that, where the plaintiff is otherwise entitled to relief in this court, he will not be debarred therefrom by reason of the fact that his remedy in the state court, upon the same cause of action, would be of a character which we are not entitled to administer here. Hence it was held by Judge DILLON, in the case of Jordan v. Cass Co., 3 Dill. 185, that the holder of county bonds issued by a county court on behalf of a township voting aid to a railway might sue the county in the federal court, and recover judgment thereon, although such judgment could not be enforced against the county or its property, or the tax-payers of the county at large, but only by mandamus to the county court to compel the levy and collection of the special tax, according to the statute. This is believed to be the earliest case upon the subject, and the opinion is a very interesting and instructive one. This case was approved in County of Cass v. Johnson, 95 U.S. 360, and was applied in the case of Davenport v. County of Dodge, 105 U.S. 237, to bonds issued to county commissioners on behalf of a precinct which had no corporate existence, and could not contract or be contracted with. The court considered the bonds in this case as special bonds, which the county commissioners were to issue for the precinct, and that they were in legal effect the special bonds of the county, payable out of a special fund, to be raised in a special way. Similar ruling was made in the case of Blair v. Cuming Co., 111 U.S. 363, 4 S.Ct. 449. This case differs from the others in the fact that the bonds contained no promise by the county to pay, but a promise by a precinct, which had no separate corporate existence. Notwithstanding this, the county was held liable to the performance of the obligation.

As the authority of the drain commissioner to draw these orders is unquestioned, it is evident that there must be a remedy in favor of the payee or holder against some one for payment. It is an axiom of the law that for every wrong there is a remedy. It is evident, however, there can be no remedy against the commissioner, as he has no corporate powers, and as he is required by law to draw these orders upon the county treasurer in behalf of the contractor, but...