Ellis v. Board of State Auditors

• Decision Date: 24 December 1895
• Citation: 107 Mich. 528,65 N.W. 577
• Court: Michigan Supreme Court
• Parties: ELLIS v. BOARD OF STATE AUDITORS.

65 N.W. 577

107 Mich. 528

ELLIS v. BOARD OF STATE AUDITORS.

Supreme Court of Michigan

December 24, 1895

Proceeding for a writ of mandamus, on the relation of Adolphus A. Ellis against the board of state auditors. Writ denied.

McGrath C.J., dissenting.

Fred A Maynard, Atty. Gen., for respondent.

HOOKER J.

At the spring election in 1892, an amendment to the constitution increasing the salary of the attorney general was submitted to the electors. The vote was canvassed, and the amendment was declared to be carried. Similar action was had relative to another amendment submitted in 1894. Salaries were paid at the increased rate, until a recanvass, in obedience to the order of this court, resulted in the determination and declaration that the respective amendments had been defeated. Relator alleges that meantime, believing said amendment to have been legally adopted, he, in good faith received from the state treasurer the sum of $5,218.08 in excess of the amount legally due him, under the former constitutional provisions; that, after ascertaining that fact, he attempted to adjust the same with the state, but before any adjustment was reached, and at the last session of the legislature, the following joint resolution was adopted: "Whereas, certain moneys were from time to time paid as salaries, under and by virtue of act eighty-seven of the public acts of one thousand eight hundred and ninety-one, and acts one hundred twenty-seven and one hundred and twenty-eight of the public acts of one thousand eight hundred and ninety-three; and whereas, certain parts of each of said acts have, in effect, been held unconstitutional by the supreme court of this state, and no decision having been made as to the rights of the parties to whom the salaries were paid, and no settlement having been had with the several parties receiving the same: Therefore resolved by the senate and house of representatives, that the board of state auditors be and are hereby authorized to ascertain the amount paid under and by virtue of either or any of said acts, and to inquire into the facts and circumstances thereof, and to make such a settlement with the several parties as shall, in the opinion of the board, be just and equitable in each case, and if any sum or sums shall be found due to this state, said board of state auditors are hereby authorized and required to commence suit therefor, in the name of the people of the state of Michigan. The act is ordered to take immediate effect." The petition states further that the board of state auditors caused a notice to be served upon relator to appear before them, for the purpose of adjusting the claim of the state against him for the excess received by him, over and above his lawful salary, and that he appeared accordingly. This meeting was adjourned to a subsequent day, when said board, acting under and in accordance with an opinion furnished them, at their request, by the attorney general, determined that they were not vested by said resolution with authority to compromise said claim, but only to ascertain the amount overpaid, and to demand payment of the same, and commence an action therefor in case payment should be refused; and said board, without inquiring into the facts and circumstances, or the rights or equities of relator, adopted a resolution instructing the clerk of said board to notify the relator that there was due to the state from him the sum of $5,218.08, and that, unless the same should be paid within 60 days from the date of service of said notice, the attorney general was thereby authorized to commence an action to recover the amount, which notice was served upon him. Relator asserts that the board has not made inquiry concerning his rights and equities in the premises, and refuses to do so, acting under the opinion of the attorney general, which he claims not to be a just construction of said law; and he claims the right, under said resolution, "to present his case to the board of state auditors, and that it is the duty of said board to inquire into the facts and circumstances, and make a just and equitable settlement, and use their honest judgment in the premises, and that the last clause of said resolution simply authorizes the board, after they have made such a settlement, if any sum be found due, to sue and collect the same." He prays that a writ of mandamus be issued to said board, "conmanding them to hear the petitioner as to his rights and equities, and to make a just and equitable settlement with the petitioner, according to the terms and spirit of said resolution." The answer admits the truth of the facts alleged in the petition, and the question is thereby reduced to a construction of the joint resolution. The relator contends that he is entitled to a hearing before the board; that the board is authorized to compromise the matter upon principles of abstract justice and equity; and that, if action is to be brought, it is only after such settlement with the relator shall have shown something due the state. To recapitulate, the relator contends (1) that the state has no legal claim against him, for the reason that the payment was voluntary, being made and received under a mistake of law; (2) that he is entitled to a hearing before said board; (3) that the board is required to settle with him upon principles of abstract justice and equity, as contradistinguished from legal and equitable rules; (4) that no action can be brought until a settlement is reached. We are asked to set the board in motion, unless we shall determine that the state has no valid claim.

The brief of the relator discusses the first proposition in connection with the question whether the legislature has the power to authorize a compromise of such claims as this inasmuch as they had not the power to authorize the payment in the first instance. Whether the legislature might lawfully provide for the acceptance of a sum less than the amount paid, as a means of adjusting a claim that is doubtful, either because of supposed legal impediments in the way of recovery, or from an inability to enforce the collection, would be one thing, while to authorize a compromise by a board in accordance with its opinions of abstract justice and equity, after payment, is another. The fundamental law forbids the raising of the attorney general's salary by the legislature. Of this, not only the members, but every citizen of the state, must be supposed to be informed. The facts that the constitution had been declared amended, and that office had been accepted under that belief, would not have enabled the relator to recover the increased salary had payment been refused, though, in a certain sense, it may be said that in "justice and equity" he had earned it, and should be entitled to it. In such case he would be obliged to suffer the disappointment, and the fact that payment was made does not materially change the situation. He has received money to which he was not lawfully entitled. His only excuse was that he was ignorant of the law, an excuse sufficient to protect him from the criminal law, but one which does not make the money justly and equitably his, unless the existing principles of law and equity, as judicially administered, entitle him to keep it, and forbid its recovery by the state. If it were clear that the legislature had attempted to authorize the board to forego its claim, simply because the relator had taken his office and performed its duties under the mistaken belief that he was to receive the increased...