Chem. Bank & Trust Co. v. Oakland Cnty.

• Decision Date: 21 November 1933
• Docket Number: Motion No. 1.
• Citation: 251 N.W. 395,264 Mich. 673
• Court: Michigan Supreme Court
• Parties: CHEMICAL BANK & TRUST CO. v. OAKLAND COUNTY et al.

264 Mich. 673

251 N.W. 395

CHEMICAL BANK & TRUST CO.

v.OAKLAND COUNTY et al.

Motion No. 1.

Supreme Court of Michigan.

Nov. 21, 1933.

Proceeding by the Chemical Bank & Trust Company for a writ of mandamus to Oakland County and others.

Writ granted.

Argued before the Entire Bench.

Anderson, Wilcox, Lacy & Lawson, of Detroit (Clarence E. Wilcox and C. J. Huddleston, both of Detroit, of counsel), for plaintiff.

Arthur P. Bogue, Pros. Atty., and Robert D. Heitsch, Asst. Pros. Atty., both of Pontiac, for defendants.

Patrick H. O'Brien, Atty. Gen., and I. Z. Acoff, Asst. Atty. Gen., for the State.

Miller, Canfield, Paddock & Stone, of Detroit, amici curiae.

POTTER, Justice.

Plaintiff seeks mandamus to compel defendants to spread upon the taxable property in the county of Oakland a tax sufficient to pay it the sum of $200,000 which it claims to be due from the county. It is the owner of $500,000 in par amount of refunding bonds of the county of Oakland dated December 1, 1931. It applied to defendants to spread a tax sufficient to pay the amount due it, $200,000, and defendants refused to spread the tax. Defendants admit they have refused to include in the 1934 budget in the debt service of the county an item of $200,000 to cover the debt set up in plaintiff's petition, and that such action was taken October 13, 1933, at a regular meeting of the board of supervisors of the county. Defendants deny it is the legal duty of the board of supervisors to include such item in the taxes to be levied. They claim they have no right or power under the laws of Michigan to include the item in the budget or cause it to be spread on the tax roll. They claim that, under date of February 2, 1931, the county of Oakland issued a million dollars in tax anticipation notes; that such notes were issued entirely without authority of law; that the bonds issued, part of which are involved in this proceeding, were issued without authority of law; that the county of Oakland had no right to refund the million dollars of tax anticipation notes which it had issued; that the issuing of the one million dollars in par amount of refunding bonds by the county of Oakland was the creation of a new obligation of the county and wholly without authority. They assert that the loan board provided to be created by section 2-a of Act No. 26 of the Public Acts of 1931 and the exercise by it of its prescribed powers and duties is unconstitutional because the statute provides for the delegation of legislative power to the loan board in violation of the Constitution; and the action taken by the loan board in approving the issuance of the bonds involved herein is void because the deputy attorney general, instead of the Attorney General, acted thereon without authority. They further claim the indebtedness contracted was in violation of the constitutional limitation on the bonded indebtedness of the county provided by section 21 of article 10 of the Constitution, effective December 8, 1932. Other questions are raised and will be considered.

1. Defendants claim plaintiff has no right to bring an original action of mandamus in this court against defendants.

Section 4 of article 7 of the Constitution provides: ‘The supreme court shall have a general superintending control over all inferior courts; and shall have power to issue writs of error, habeas corpus, mandamus, quo warranto, procedendo and other original and remedial writs, and to hear and determine the same. In all other cases it shall have appellate jurisdiction only.’

Section 13535, Comp. Laws 1929, provides: ‘The supreme court * * * shall have power to issue writs of error, certiorari, habeas corpus, mandamus, quo warranto, procedendo, prohibition, supersedeas, and all other original and remedial writs which may be necessary for the due execution of the law and the administration of justice, and the full and perfect exercise of its jurisdiction, and to hear and determine the same.’

‘The jurisdiction of this court in mandamus cases is not statutory, but plenary, and supervision is given over all inferior tribunals by the constitution, art. 6, § 3.’ Tawas, etc., R. Co. v. Iosco Circuit Judge, 44 Mich. 479, at page 483, 7 N. W. 65, 66.

‘In cases where the right is clear and specific, and public officers or tribunals refuse to comply with their duty, a writ of mandamus issues for the very purpose, as declared by Lord Mansfield, of enforcing specific relief. It is the inadequacy, and not the mere absence, of all other legal remedies, and the danger of a failure of justice without it, that must usually determine the propriety of this writ. Where none but specific relief will do justice, specific relief should be granted if practicable. And where a right is single and specific it usually is practicable.’ People ex rel. La Grange Tp. v. State Treasurer, 24 Mich. 468, at page 477.

The jurisdiction of this court has been repeatedly exercised in similar cases. People ex rel. Kuhn v. Board of Auditors of Wayne County, 10 Mich. 307;People ex rel. Butler v. Board of Supervisors of Saginaw County, 26 Mich. 22;People ex rel. Mixer v. Board of Supervisors of Manistee County, 26 Mich. 422;People ex rel. Attorney General v. Supervisors of St. Clair County, 30 Mich. 388;People ex rel. Pack v. Supervisors of Presque Isle County, 36 Mich. 377;Abels v. Supervisors of Ingham County, 42 Mich. 526, 4 N. W. 206;Peck v. Supervisors of Kent County, 47 Mich. 477, 11 N. W. 279;Brownell v. Supervisors of Gratiot County, 49 Mich. 414, 13 N. W. 798;Davis v. Board of Supervisors of Ontonagon County, 64 Mich. 404, 31 N. W. 405;Zink v. Board of Supervisors of Monroe County, 68 Mich. 283, 36 N. W. 73;Haines v. Supervisors of Saginaw County, 87 Mich. 237, 49 N. W. 310;Tinsman v. Supervisors of Monroe County, 90 Mich. 382, 51 N. W. 460;Haines v. Board of Supervisors of Saginaw County, 99 Mich. 32, 57 N. W. 1047;Attorney General ex rel. Barnes v. Board of Supervisors of Midland County, 178 Mich. 513, 144 N. W. 883.

‘Jurisdiction is given by the constitution to this court to issue the writ of mandamus, and it is within the province of the court to restrain public bodies and officers of the municipal divisions of the state from exceeding their jurisdiction, and to require them to perform such specific duties as the law imposes upon them ( Attorney General v. Board, 64 Mich. 607, 31 N. W. 539;Coll v. Board, 83 Mich. 367, 47 N. W. 227); and the writ has been often exercised to compel such bodies or officers to reverse their decisions (People v. Supervisors, 3 Mich. 475;People v. Auditors, 13 Mich. 233).’ Tennant v. Crocker, 85 Mich. 328, at page 339, 48 N. W. 577, 580.

2. There was no impropriety in plaintiff instituting mandamus proceedings in this court.

3. It is claimed the board of supervisors of Oakland county did not have power and authority to borrow the one million dollars upon the issuance of its tax anticipation notes on February 2, 1931. We need not discuss this contention, for the reason that section 3 of Act No. 26, Public Acts 1931, provides: ‘Notes heretofore issued in anticipation of the collection of delinquent taxes or special assessments are hereby declared to be legal and valid obligations of the county, township, city, village or school district issuing the same as if issued or sold hereunder.’

The Legislature may, by subsequent act, validate and confirm previous acts of a municipal corporation otherwise invalid. If the act could have been lawfully performed or done under precedent legislative authority, the Legislature may subsequently ratify it and give it effect. Dillon, Municipal Corporations (5th Ed.) par. 129.

‘In the absence of special constitutional restrictions, the competency of the legislature to enact retrospective statutes to validate an irregular or defective execution of a power by a municipal or public corporation, is undoubted. * * * Subsequent legislative sanction within constitutional limits is equivalent to original authority.’ Dillon, Municipal Corporations (5th Ed.) par. 948.

‘The whole may be summed up in a single sentence: that the legislature cannot make valid, retrospectively, what they could not originally have authorized.’ People ex rel. Butler v. Board of Supervisors of Saginaw County, 26 Mich. 22.

‘If they could have authorized this in advance, they can equally ratify and legalize the act when done, and that without any reference to the question, whether the Board had jurisdiction at the time of doing the act.’ People ex rel. Bristol v. Board of Supervisors of Ingham County, 20 Mich. 95.

4. The tax anticipation notes of February 2, 1931, recited:

‘This note is one of a series of 35 notes of like date, tenor and effect, differing only in note numbers and amounts aggregating $1,000,000, and is issued in anticipation of the collection of taxes levied in the year 1930 for the general fund of the County and anticipated to be collected in the year 1931, and for the payment of this note and interest the full faith and credit of the County of Oakland, State of Michigan, is hereby irrevocably pledged.

‘It is hereby recited and certified that all acts, conditions and things required to be done precedent to and in the issuing of this note have been done in regular and due form as required by law, and that the indebtedness herein incurred does not exceed the Statutory or Constitutional limitations.’

The refunding bonds recited:

‘This bond is one of an issue of bonds of like tenor, except as to number and maturity, aggregating the sum of One Million Dollars ($1,000,000.00), and is issued for the purpose of refunding One Million Dollars worth of tax anticipation notes heretofore issued on February 2, 1931, and due and payable November 2, 1931, and this bond is issued pursuant to and in strict compliance with the Constitution and Statutes of the State of Michigan, particularly Act 273 of the Public Acts of 1925 and amendments thereof.

‘It is Hereby Certified, Recited and Declared, that all acts,...