Davock v. Moore

• Decision Date: 26 April 1895
• Court: Michigan Supreme Court
• Parties: DAVOCK ET AL. v. MOORE, CONTROLLER.

63 N.W. 424

105 Mich. 120

DAVOCK ET AL. v. MOORE, CONTROLLER.

Supreme Court of Michigan

April 26, 1895

Certiorari to circuit court, Wayne county; Robert E. Frazer, Judge.

Action upon the relation of Harlow P. Davock and others against Charles W. Moore, controller, for writ of mandamus to compel defendant to issue his warrant for the payment of a check issued by the board of health. There was judgment for issuance of the writ, which defendants now bring up by writ of certiorari for review. Affirmed.

Atkinson & Haigh (John Atkinson, H. H. Hatch, and John Miner, of counsel), for appellant.

John J Speed (John D. Conely, of counsel), for appellees.

LONG J.

At the present session the legislature passed an act entitled "An act to establish a board of health for the city of Detroit." The act was approved by the governor, February 27, 1895, and took immediate effect. Under that act the board is to consist of four members, freeholders and electors, of the city of Detroit, to be appointed by the governor of this state, with the advice and consent of the senate. The members of the board of health so appointed by the governor at once entered upon their duties as a board of health. This act repealed all former acts providing for a board of health in the city of Detroit, and made it the duty of such former board to turn over to the new board all the property records, and offices, hospitals and assets, of every name and nature, then in its possession or control, and the new board to pay the bills of the former board. Section 3 of the act provides: "It shall be the duty of said board on or before the first day of March, in the year 1895, and on or before the 15th day of February in each following year, to file with the city controller an estimate of the amount of money which, in the opinion of said board, will be required for all purposes of expenditures by said board during the next fiscal year, and such sums so estimated, when raised as provided by this act, shall be appropriated by said board for the prevention of danger to the public health or other purposes contemplated by this act. In the presence of a great and imminent peril to the public health by reason of impending pestilence, the said board may report to the common council that in its judgment the security of the public health requires the expenditure of moneys in the then fiscal year in excess of the annual appropriation for the purposes of said board as above provided, and the common council may thereon cause to be placed to the credit of said board such sum of money as may be required in the judgment of the council, such sum to be taken either from the contingent fund or the same may be raised by temporary loan payable within such time as the council may determine, not exceeding three years and not exceeding in all the sum of $100,000. The money so raised or borrowed shall be paid into the city treasury and shall constitute a fund to be known as the 'public health fund,' and the same shall be paid out on vouchers approved by the board of health and checks signed by the president and secretary of the board, drawn upon the city controller, who shall draw his warrant upon the city treasurer in favor of the person named as drawee in said check."

It appears that about $1,600 of bills of the old board remained unpaid at the time that the new board entered upon its duties, and that there were no funds in the city treasury belonging to this board of health fund, said fund having been fully exhausted by warrants theretofore drawn. The legislature thereupon passed an act entitled "An act to amend sections two and four of chapter four, section fifty-nine of chapter seven, sections one, six, seven and eight of chapter ten, and section twenty-seven of chapter eleven of an act entitled, 'An act to provide a charter for the city of Detroit and to repeal all acts and parts of acts in conflict therewith, approved June 7, 1883."' This act was approved March 15, 1895, and took immediate effect. Section 27 of that act, as amended, reads as follows: "Moneys shall be transferred from one fund to another as hereinafter provided, and the moneys received and properly belonging to one fund shall not be credited to any other or different fund, excepting to the sinking fund, as above provided. Moneys received from liquor taxes shall be credited to the contingent fund, metropolitan police fund, public health fund and poor fund in such proportions as the common council shall direct. The controller, for convenience, shall have power to divide the several funds above constituted into special funds to defray special expenses belonging to the same class of expenses for the payment of which said several sums are above constituted. The common council shall provide for the maintenance of the board of health of said city and the payment of its expenses during the remainder of the fiscal year ending July 1, 1895, by borrowing by temporary loans such sums as may be certified to the common council by the said board to be necessary for the purposes aforesaid, said temporary loan to be repaid from the moneys received during the present fiscal year from liquor taxes, or if such receipt be insufficient, then from any other moneys in the city treasury. No tax roll shall be held to be void for the reason that an estimate of the amount of money necessary to be raised for any particular fund was not made by any officer, board or commission authorized or required by law to make an estimate for such purpose within the time specified by law for the making of such estimate, provided such estimate shall be transmitted to the common council in time for the same to be acted upon by the common council and board of estimates. The board of health of said city shall have control and possession of all city hospitals, buildings and offices pertaining to the health department of said city, and shall annually on or before the 15th day of February, make an estimate of the amount of money necessary to be raised for the maintenance of said board and for the preservation of the public health for the ensuing fiscal year, which estimate shall be certified to the common council; and it shall be the duty of said council to cause the amount of money mentioned in said estimate to be placed upon the tax rolls and raised by general tax at the same time as other sums are raised by general taxation for the next fiscal year: provided, that if the said estimate shall exceed fifty thousand dollars, only so much thereof in excess of fifty thousand dollars as shall be approved by the common council and board of estimates shall be levied in any one year: and provided further, that the council may, by transfer from the contingent fund as above mentioned, provide for the amount of money required to be raised for the purposes of the public health fund, or any part thereof, in lieu of raising the same by taxation. The city treasurer shall place to the credit of the board of health fund the sum of $12,000 for the maintenance of said board for the remainder of the fiscal year ending June 30th, 1895, and for the payment of any existing outstanding liabilities by transfer to the public health fund from any other funds in the city treasury, and the same shall be paid out on the checks of the board of health in the manner now provided by law for payment from the public health fund. The common council may replace the moneys so transferred by temporary loan, to be repaid from liquor taxes paid into the credit of the contingent fund."

On March 18th the pay roll of the board was made up and approved by the board of health, and a check in the following form drawn in favor of the secretary of the board: "Pay from the public health fund, as provided by an act entitled 'An act to establish a board of health for the city of Detroit,' approved February 27, 1895, to the order of Charles S. Hathaway, eight hundred and fifty-six and sixty-three hundredths dollars. By order of the board of health. Harlow P. Davock, President. Charles S. Hathaway, Secy." This check was presented to the controller, the respondent here, and he was requested to draw his warrant on the city treasurer as provided by law for the payment of the check. The controller refused to draw the warrant, claiming that there were no funds, and that it was unlawful for him to draw his warrant as requested, though his attention was called to the amendment of the charter passed March 15, 1895.

It appears that the city treasurer informed the board that if the circuit court should direct the controller to draw his warrant upon the public health fund he would pay the same as provided by section 27 of the charter above quoted. The board thereafter presented a petition for mandamus to the Wayne circuit court to compel the controller to issue his warrant for the payment of this check. In his answer to show cause to that petition, the controller answered substantially that he had been advised by counsel that these statutes were in contravention of the constitution and void and that in view of such advice he deemed it not safe or proper to draw his warrant. He further returns that all the moneys and funds in the treasury of the city, or under the control of the city treasurer, were raised and appropriated to the several funds required by law before the approval of the board of health act of February 27, 1895; that all said funds were appropriated for purposes other than the support and maintenance of the board of health created by that act; that the fund known before that time as the "board of health fund" was exhausted, and he was informed and believed that there was no money or funds in the custody or possession of the treasurer available for the support and maintenance of the board, or upon which he could...