Kinyon v. Duchene

• Decision Date: 11 October 1870
• Court: Michigan Supreme Court
• Parties: Myron Kinyon v. Clement Duchene

21 Mich. 498

Myron Kinyon v. Clement Duchene

Supreme Court of Michigan

October 11, 1870

Heard October 6, 1870; October 7, 1870.

Appeal in chancery from St. Clair circuit.

The complainant filed his bill in the circuit court for the county of St. Clair, in chancery, against the defendant, as treasurer of the town of China, to restrain the collection of a tax levied by the board of drain commissioners for that county, upon the property of the complainant, for the construction of a ditch under proceedings alleged to be in pursuance of act number 216 of the Laws of 1861, and the acts amendatory thereto. The court below dismissed the bill, and the complainant appeals to this court.

Decree of the court dismissing the bill reversed, with costs, and a decree entered in this court granting the relief prayed by the bill.

T. C Owen and W. T. Mitchell, for complainant.

R. P Eldredge, for defendant.

OPINION

Christiancy J.:

This was a bill to enjoin the collection of certain drain or ditch taxes, attempted to be assessed upon the lands of complainant by three persons assuming to act as a board of drain commissioners, which taxes the defendant, as township treasurer, was, by the warrant of the supervisor of the township, directed to collect.

Upon a hearing upon pleadings and proofs, the court below dismissed the bill, and complainant has appealed to this court.

Several questions were raised and discussed on the argument. One point, however, is, we think, decisive of the cause.

The several persons assuming to act as a board of drain commissioners, were appointed by the board of supervisors in 1864, under the act of 1861 then in force (Laws of 1861, p. 452, § 1). They did not, however, organize as a board until the summer of 1867, soon after which their proceedings were commenced for laying out and constructing the ditch and raising the tax in question.

At the time of their appointment as such commissioners, they were all of them members of the board of supervisors which made the appointment. Whether they voted for their own appointment does not affirmatively appear, but they had as much right to do so as the others had to vote for them.

The eighteenth and nineteenth sections of the act provide that, "For the information of all persons concerned, the said commissioners shall make a full report in writing to the board of supervisors of the proper county, at the next and each annual session thereafter, setting forth as near as practicable:

"First. What proportion of the ditches or drains, for the construction of which a tax has been levied, are completed and the amount paid therefor.

"Second. What proportion is under contract and not completed, and the amount to be paid therefor, and whether such contract or contracts are likely to be performed; also the proportion not yet under contract, and the estimated cost of their construction, and whether there is a sufficient amount of unexpended funds, created by such tax, to complete the work.

"Third. What amount of such funds had been expended and for what purpose, exhibiting the items of such expenditure as fully as may be practicable; and also, what amount of warrants has been drawn by them against such fund, and shall also report all such other matters in relation to the subject as they may deem necessary, or said board of supervisors may require.

"Sec. 19. The board of supervisors of the several counties in which commissioners shall be appointed, shall have full power and authority to control the action...