Fitch v. Board of Auditors of Claims against Manitou County

• Decision Date: 12 May 1903
• Citation: 133 Mich. 178,94 N.W. 952
• Court: Michigan Supreme Court
• Parties: FITCH et al. v. BOARD OF AUDITORS OF CLAIMS AGAINST MANITOU COUNTY. KANE v. BOARD OF AUDITORS OF CLAIMS AGAINST MANITOU COUNTY

94 N.W. 952

133 Mich. 178

FITCH et al. v. BOARD OF AUDITORS OF CLAIMS AGAINST MANITOU COUNTY.

KANE v. BOARD OF AUDITORS OF CLAIMS AGAINST MANITOU COUNTY

Supreme Court of Michigan

May 12, 1903

Certiorari to Circuit Court, Charlevoix County; Frederick W. Mayne Judge.

Separate proceedings by mandamus by the people, on the relation of Dwight H. Fitch and Arthur L. Fitch, and on the relation of Robert W. Kane, against the board of auditors of claims against Maniton county. An order was issued in each, granting a peremptory writ of mandamus, and the real parties in interest, the townships of Glen Arbor and others in the first proceeding, and the townships of Patmos and others in the second, bring certiorari to review the order. Order reversed.

A. F. Bunting and Thos. Smurthwaite, for appellants.

Fitch &amp Fitch and R. W. Kane, in pro. per.

CARPENTER, J.

We are asked in these two proceedings, which raise the same issue to reverse the order of the court below issuing a mandamus compelling the respondent to audit certain claims; and the main question involved relates to the constitutionality of a joint resolution passed at the last session of the Legislature, and found on pages 382-385, Pub. Acts 1901.

As appears by that resolution, the county of Manitou was disorganized, and part of its territory attached to Charlevoix county and part to Leelanau county, by Act No 362, p. 132, Local Acts 1895. Sections 6 and 9 of that act provided a method for the auditing of the accounts against said county. Said accounts never were audited. Therefore this joint resolution created a board of auditors--namely, respondent--consisting of the county clerk and county treasurer of Manitou county at the date of its dissolution, six years before, and the county clerks and county treasurers of Charlevoix and Leelanau counties. This board was directed to meet at the office of the county clerk of Charlevoix county, June 4, 1901, at 9 a. m., organize by choosing one of their number as chairman and another as clerk, and continue in session, not exceeding 20 days, until they had audited the accounts against said county of Manitou. The right was given to any person whose claim was rejected, and to any township aggrieved by the allowance of a claim, to resort to mandamus proceedings in the circuit court for the county of Charlevoix. It was made the duty of said board of auditors, after determining the amount of said claims, to apportion the same to the territory formerly comprising Manitou county, now attached to the counties of Charlevoix and Leelanau, 'in the same proportion as the relative value' of the parts of said disporganized county attached to each 'bear to each other, as fixed and determined by the board of supervisors of Manitou county at its October session in the year 1894.' It was made the duty of each of said counties to pay its quota of said indebtedness out of funds in its treasury belonging to said disorganized county, and, in the event of the insufficiency of these funds, to raise the same by taxation on the territory which formerly comprised said disorganized county. The act contained this remarkable provision: 'No such claim shall be disallowed, if otherwise valid, solely for the reason that it is barred by the statute of limitations. The statute of limitations shall not apply to such claims.'

Relators, the owners of various alleged claims against the county of Manitou, consisting of county orders, one issued April 15, 1882, three May 11, 1895, and the others on intermediate days, presented them to respondent, who constituted the board of auditors by virtue of the act above referred to. These claims were disallowed. They then applied to the circuit court for the county of Charlevoix for a mandamus.

Respondent's answer to the order to show cause stated that it refused to allow relators' claims for the reason that they were barred by the statute of limitations; that the joint resolution is unconstitutional and void, in that it seeks to resuscitate claims already dead by the statute of limitations, and in that it destroys vested rights. The court, after listening to the argument of counsel, ordered the mandamus to issue.

Before considering the question of the constitutionality of the resolution, it is necessary to dispose of a motion made in each of the cases now under consideration to dismiss the writ of certiorari issued by this court. In the first of these cases--namely, that in which Fitch & Fitch are relators--the motion is based upon the ground that the petitioners for said writ of certiorari who have not entered a disclaimer are certain townships in the county of Leelanau, each of which is composed in part of territory never forming a part of said county of Manitou. Inasmuch as a part of the taxpayers of each of said townships are liable to be taxed to pay the award in controversy, and this tax is to be collected by said township officers, we think they are proper petitioners, and this motion should therefore be denied.

The motion in the other case--that in which Robert W. Kane is relator--is based upon the assumption that the only petitioners for said writ of certiorari who had not entered a disclaimer were certain former townships of the county of Manitou, which had been disorganized, and therefore had no corporate existence when said petition was made. This assumption was justified by the printed record served upon said relator. It was, however, erroneous, as is proved by an examination of the original record. It is quite clear that, notwithstanding the error in printing, this court must be governed by the original record, and therefore must deny the motion. We must, however, hold said petitioners responsible for the error which induced the making of this application, and therefore award costs of this motion to relators, to be paid by such of them as have filed no disclaimer.

Is the joint resolution unconstitutional? Respondent's counsel both in his brief and argument in this court, contends that the joint resolution is unconstitutional, not only for the reasons urged in the court below, but because, contrary to the provisions of the constitution, it attempts to confer judicial power upon respondent. Relators contend that this court should consider no other objection to the constitutionality of said joint resolution than was urged in the court below. This contention is based upon the principle, often asserted, that the jurisdiction of this court is limited to a review of such rulings of the circuit court upon questions of law as were distinctly pressed and passed upon. See Chatterton v. Parrott, 46 Mich. 432, 9 N.W. 482. This principle has no application to this case. If this law is unconstitutional in attempting to confer judicial power upon respondent, the court below had no rightful jurisdiction to issue the mandamus complained of, and it is difficult to understand how even the consent of the respondent could have so conferred jurisdiction as to make the order complained of effectual for any practical purpose. But respondent did not consent. It objected, and objected, too, on the ground that the law was unconstitutional. In support of this objection certain reasons were advanced, certain arguments urged. It would be a monstrous proposition to say that other reasons may not be advanced in this court, and stronger arguments, if discovered, urged against the action proposed to be taken. We do not think that this court should decline to hear and be influenced by these arguments, though it may be that if they had been brought to the attention of the trial judge his decision would have been different. It is generally true that the arguments in a case in this court, being made after counsel has had an opportunity to more thoroughly understand his case and examine the authorities, are different...