Curtenius v. Hoyt

• Decision Date: 01 November 1877
• Court: Michigan Supreme Court
• Parties: Frederick W. Curtenius v. Henry E. Hoyt, Edwin W. De Yoe, Gershon P. Doan and Amos D. Allen (constituting the Township Board of Kalamazoo), the Grand Rapids & Indiana Railroad Company, and the Township of Kalamazoo

37 Mich. 583

Frederick W. Curtenius v. Henry E. Hoyt, Edwin W. De Yoe, Gershon P. Doan and Amos D. Allen (constituting the Township Board of Kalamazoo), the Grand Rapids & Indiana Railroad Company, and the Township of Kalamazoo

Supreme Court of Michigan

November 1, 1877

Argued October 24, 1877

Appeal from Kalamazoo. (Hawes, J.)

Bill for injunction. Defendant appeals. Affirmed.

Decree affirmed with costs.

Severens Boudeman & Turner for complainant and appellee, argued that a tax-payer can file a bill to enjoin the misappropriation of funds by public officers whereby taxation will be increased, and cited, besides many cases collected in Cooley on Taxation 549 n. 2, Harney v. Indianapolis etc. R R. Co. 32 Ind. 244; Scofield v. School District 27 Conn. 499; U. P. R. R. Co. v. Hall 91 U.S. 343; Mount Carbon Coal etc Co v. Blanchard 54 Ill. 240; Sherman v. Carr 8 R.I. 431; Hodgman v. C. & St. P. Ry. Co. 20 Minn. 48; Peck v. School Dist. 21 Wis. 516. See also Cooper v. Alden Har. Ch. 72; Chaffee v Granger 6 Mich. 51. If the misappropriation is allowed, there is no remedy against the taxation to supply the place of the money used, Wright v. Dunham 13 Mich. 414. Injunctions have been granted to restrain municipal corporations from issuing bonds, U. P. R. R. Co. v. Lincoln Co. 3 Dill. 300; Harding v Rockford etc. R. R. Co. 65 Ill. 90; Coulson v. Portland Deady 481; Whiting v. Sheboygan etc. R. R. Co. 25 Wis. 167; Dillon's Law of Municipal Bonds 20 n. Laws authorizing municipal railroad aid bonds are unconstitutional, People v. Salem 20 Mich. 452; Bay City v. State Treasurer 23 Mich. 499; Thomas v. Part Huron 27 Mich. 320. The act authorizing aid for the Grand Rapids & Indiana Railroad (Act 69 of 1864) is unconstitutional for restricting the right to vote for the issue of bonds to taxable, property-holding electors, Rison v. Farr 24 Ark. 161; State v. Williams 5 Wis. 308; Att'y Gen. v. Supervisors 11 Mich. 63; Monroe v. Collins 17 Ohio St. 665; Davies v. McKeeby 5 Nev. 369; State v. Staten 6 Coldw. 243.

Hughes, O'Brien & Smiley for defendants in error. A suit to redress a public grievance must be maintained by the people of the State, Miller v. Grandy 13 Mich. 540; Demarest v. Wickham 62 N.Y. 320; Doolittle v. Broome Co. 18 N.Y. 155; Hale v. Cushman 6 Met. 425; Carlton v. Salem 103 Mass. 141; Roosevelt v. Draper 13 N.Y. 323. The issue of railroad aid bonds being unlawful, all taxpayers have an adequate remedy at law against it, and need not resort to a court of equity for relief, Burnes v. Mayor 2 Kan. 454; Exchange Bank v. Hines 3 Ohio St. 1.

Graves, J. Cooley, C. J. and Campbell, J. concurred: Marston, J. did not sit in this case.

OPINION

Graves, J.

Complainant being a resident within the township and owner of considerable real and personal property therein subject to taxation, filed this bill in November, 1868, against the railroad company and the township board to enjoin the emission by the township of one hundred thousand dollars in amount of its bonds and coupons in aid of the construction of the railroad of the defendant corporation. No other party was united as complainant and the bill did not profess to be filed on behalf of any one else. It set out proceedings taken under color of the act of February 5th, 1864, for issuing the bonds, and alleged that the appropriate authorities had devised a form of bond negotiable by delivery and threatened to execute and deliver the amount in that shape. It alleged that complainant's share of the tax which would be necessary to pay such bonds would be more than $ 100, and averred that the proceedings taken had been irregular, and that the act itself on which they were based was invalid.

A general demurrer was filed which was at length overruled in November, 1876. The township consented to a decree against it, but the railroad company answered and the cause was heard on pleadings and proofs in March, 1877, and the court decreed for complainant. The company appealed.

As the cause is presented here by the appellants it presents only a single point, and that is, whether, assuming that the bonds if issued would be invalid, it is competent for complainant, an individual resident owner of real and personal estate within the township subject to taxation, to maintain his bill to enjoin the emission of the bonds.

The learned counsel for the company insists that it is not. He maintains that the proceeding is an attempt in equity by a private person to interpose in advance of any appreciable individual detriment, and seek to redress an alleged public grievance.

On the other hand the learned counsel for complainant contends that the object of the bill is not to guard or assert public rights but to defend the private and individual interests of the resident proprietor and tax-payer against the encroachment of unlawful power and threatened irreparable injury through unlawful municipal action.

The question propounded is one of great practical importance, and unfortunately judicial opinion is radically divided upon it. This difference is tersely and clearly traced and explained in the work of my brother Cooley. Cooley on Tax. 548.

The way in which the authorities are marshaled on each side is also stated, and I do not see how any thing could be gained by an attempt here to discuss the subject anew. The whole field has been repeatedly gone over and the subject has been held up in every point of view of which it would seem capable. The substance of the views advanced on each side of the question is given in the work just referred to, and numerous cases are cited there. The conclusion reached is that "the decided preponderance of authority is in support of the right of the taxpayers to file bills on their own behalf in such cases."

The case of Miller v. Grandy, decided here in 1865, and reported in 13 Michigan at p. 540, is supposed by counsel for the company to establish a different doctrine. My associates sitting in this case participated in that, and they concur with me in thinking that the point now in question is not ruled by that judgment. There the complainant assumed to prosecute for all tax-payers, and the bill was not framed to arrest unlawful municipal action already in progress and sufficiently advanced to threaten injury to the individual interests of the complainant, but it was aimed to protect against an injury to proceed if at all from future unlawful action which might or might not be taken. The bill assumed the complainant was likely to be damnified because a town board authorized to act on one class of claims, intended to act upon another class which the law did not permit to be...