Fuller v. Aylesworth

• Citation: 75 F. 694
• Decision Date: 08 July 1896
• Docket Number: 408.
• Parties: FULLER et al. v. AYLESWORTH.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

75 F. 694

FULLER et al. v. AYLESWORTH.

No. 408.

United States Court of Appeals, Sixth Circuit.

July 8, 1896

This is a writ of error to review a judgment of the circuit court for the Eastern district of Michigan for $7,053.01 in favor of Henry M. Aylesworth against the obligors on the following supersedeas bond:

'Know all men by these presents that we, M. McVeigh, W. Kuhlman B. Sharp, S. Hile, Chas. Shafer, L. J. Fuller, T. Lewis, W C. Stone, N. B. Johnson, J. F. Innes, W. A. Furman, J. S Parker, H. C. Burlingame, all of the county of Gratiot, state of Michigan, are held and firmly bound unto Henry M. Aylesworth, of New York state, in the sum of ten thousand five hundred dollars, lawful money, to be paid to the said Henry M. Aylesworth, his executors, administrators, or assigns; for which payment, well and truly to be made, we bind ourselves, our heirs, executors, and administrators, jointly and severally, firmly by these presents. Sealed with our seals, and dated the 13th day of October, A.D. 1890.

'Whereas, judgment has been rendered in the circuit court of the United States for the Eastern district of Michigan in favor of said Henry M. Aylesworth and against the county of Gratiot for five thousand one hundred and twenty dollars and fifty-six cents, damages and costs taxed to forty-five dollars and twenty-seven cents, which is to be collected by assessments of tax upon certain lands in Arcada, Newark, and New Haven townships, in said county, in which judgments and proceedings the said county of Gratiot complains that there is error in substance, and to be relieved therefrom has obtained a writ of error to remove the same to the supreme court of the United States to the end that said errors may be corrected: Now therefore, the condition of this obligation is such that if the said county of Gratiot shall prosecute its said writ of error to effect, and shall pay and satisfy such judgment as shall be rendered against it upon said writ of error in said supreme court, then this obligation to be void; otherwise to remain in full force and effect.

'Warner C. Stone. (L.S.) Solomon Hile. (L.S.)

'Lovell J. Fuller. (L.S.) Milton McVeigh. (L.S.)

'John S. Parker. (L.S.) Thomas Lewis. (L.S.)

'Henry C. Burlingame. (L.S.) Charles Shafer. (L.S.)

'Wilmarth A. Furman. (L.S.) Benjamin Sharp. (L.S.)

'John F. Innes. (L.S.) Nathaniel B. Johnson. (L.S.)'

'Arthur W. Lewis. (L.S.)

The court below held that the lawful effect of the bond was to require the obligors to pay the full amount of the judgment which was superseded, and so charged the jury. The obligors' counsel contended that there was no authority under the law to exact a bond of this kind, because the judgment was merely an order for mandamus, and that the plaintiff, having shown no damage by the delay, was entitled to nothing more than his costs expended on the appeal, the words in the bond to the contrary notwithstanding. The original judgment which was superseded was rendered by the court below on certain drain warrants issued in pursuance of Act No. 43 of the Michigan Laws of 1869, as amended by Act No. 169 of the Law of 1871. The force and effect of this act and the character of the warrants are shown in the following passage from the opinion of Mr. Justice (then Judge) Brown in rendering the original judgment (Aylesworth v. Gratiot Co., 43 F. 350, 353):

'As the authority of the drain commissioner to draw these orders is unquestioned, it is evident that there must be a remedy in favor of the payee or holder against some one for payment. It is an axiom of the law that for every wrong there is a remedy. It is evident, however, there can be no remedy against the commissioner, as he has no corporate powers, and as he is required by law to draw these orders upon the county treasurer in behalf of the contractor, but has no power to enforce the collection of the tax, or to provide in any other way for their payment. It is equally clear that the county treasurer is not bound to pay them unless he has the funds, and that no action will lie against him unless he refuses to disburse moneys actually in his hands for that purpose. An examination of the statute, we think, demonstrates that there is an obligation on the supervisors representing the county that they can only discharge by an assessment and collection of the tax. By section 1 of the drain law of 1869, as amended in 1871, the board of supervisors of each county is authorized to appoint one county drain commissioner, who is required by section 3 to execute the duties or his office and the resolutions and orders of the board of supervisors. He is bound to keep a full record of his official acts in a book to be furnished by the county, to draw all proper orders on each drain fund, to report to the board of supervisors his action in relation to each drain, and file the same with the clerk. Orders drawn by him must be countersigned by the chairman and clerk of the board. By section 4, on application to him by 10 or more owners of land in each township, he is required to make examination by surveys, and to determine the route of any drain they may require, and may have the assistance (section 6) of a court of record for the appointment of special commissioners to examine the property, and the necessity for the construction of such drain. By section 11, he shall make a full report of all his doings, and present the same to the board of supervisors at their next annual meeting. This board shall charge the apportioned sum against each township, and direct the supervisor of each township to levy the same upon the several parcels of land benefited by the drain. By section 12, the county treasurer is charged with the duty of returning all lands upon which a tax shall be levied and not paid to the auditor general, and the same shall be advertised and sold, and, if bid off to the state, the state treasurer shall pay over to the county treasurer the amount of the taxes. By section 15, whenever such tax shall be set aside by any court of competent jurisdiction, it shall be lawful for the supervisor to reassess such tax on the same land where such drain has been made, and in case of any mistake or misapportionment of taxes, the board of supervisors, upon the recommendation of the drain commissioner, or upon a review before them had by appeal from the action of the drain commissioner, may reassess upon the various lands or portions of lands such amount of drainage taxes as may be necessary to correct such mistake or misapportionment. By section 17, no money shall be paid by any county treasurer except on a warrant drawn by the commissioner and countersigned by the chairman and clerk of the board of supervisors, and then only from the particular fund provided for each ditch. If there be no funds in his hands, the county treasurer must indorse the date of the presentation of the orders with his signature thereto, and his orders shall draw interest from and after such presentation and indorsement. Section 19. By section 24 the board of supervisors has full power and authority to control the action of the commissioner, and may order reassessment of the drain tax, or any portion thereof, to correct errors, and may make any other order in relation to such ditches or drains as may be necessary. By section 33, the most ample powers are conferred upon courts to make such orders as shall be just and equitable, and may order such tax to remain on the roll for collection, or order the same to be levied, or may enjoin the same, or may order the whole, or such part thereof as may be just and equitable, to be refunded. It is evident that under this act ample powers are conferred on the board of supervisors with regard to the assessment and collection of these taxes, and in case of any dereliction of duties on their part there ought to be a remedy against the corporation of which they are the authorized expression and agent. As before observed, the proper remedy in the state court is by writ of mandamus. As this court is incompetent, in the first instance, to afford this relief, we think an action may be brought against the county, and the collection of the judgment enforced by the same process of mandamus that would be resorted to if the proceedings had been instituted in the state court.'

The judgment which Mr. Justice Brown rendered was as follows:

'The jury by whom the issue in this case was tried having rendered a verdict therein in favor of the plaintiff and against the defendant, and having assessed the damages of the said plaintiff on occasion of the premises at the sum of forty-eight hundred and sixty-eight dollars and seventy-four cents ($4,868.74) over and above his costs and charges by him about his suit in that behalf expended, therefore it is considered that the said plaintiff do recover against the said defendant his damages by the jurors aforesaid in form assessed, and the interest thereon from the rendition of said verdict, November 30, 1889, amounting to the sum of two hundred and fifty-one dollars and eighty-two cents; in all, on this day, five thousand one hundred and twenty dollars and fifty-six cents, together with his costs and charges to be taxed; and that a writ of mandamus shall issue to the board of supervisors of said county directing that the amount of said damages, interest, costs, and charges shall be levied and assessed as follows: Twenty-nine hundred and forty-one dollars and ninety-three cents ($2,941.93) on lands in the township of Newark, in said county, benefited by the Newark & Arcada ditch; six hundred and eighty dollars and twenty-four cents ($680.24) on lands in the township of Arcada, in said county, benefited by Newark & Arcada ditch; and twelve hundred and forty-six dollars and fifty-seven cents ($

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