Moore v. Harrison

• Decision Date: 01 October 1923
• Docket Number: No. 354.,354.
• Citation: 224 Mich. 512,195 N.W. 306
• Parties: MOORE v. HARRISON, County Treasurer, et al.
• Court: Michigan Supreme Court

224 Mich. 512

195 N.W. 306

MOORE

v.HARRISON, County Treasurer, et al.

No. 354.

Supreme Court of Michigan.

Oct. 1, 1923.

Certiorari to Circuit Court, Midland County; Clarence M. Brown, Judge.

Petition for mandamus by W. Victor Moore against Henry W. Harrison and another. Petition dismissed, and plaintiff brings certiorari. Order denying writ set aside, and case remanded.

Argued before FELLOWS, McDONALD, CLARK, BIRD, SHARPE, MOORE, and STEERE, JJ.

Fellows and Moore, JJ., dissenting.

Gilbert W. Hand, of Bay City, for petitioner.

Chester E. Morris, Pros. Atty., and Gilbert A. Currie, both of Midland, for respondents.

SHARPE, J.

What is known as the South Carl drain was constructed in the county of Midland in 1914 at a cost of $36,800. Certain of the lands in the special assessment district were returned delinquent, and were afterwards, under the usual tax proceedings, offered for sale and bid in by the state. Certain descriptions have since been deeded to the state, and have become state tax homestead lands. Plaintiff is the owner of two orders issued for materials used in the construction of the drain, amounting to $410, and which have not been paid, owing to the failure to collect the taxes assessed therefor.

Act No. 142 of the Public Acts of 1919, as amended by Act No. 64 of the Public Acts of 1921, being an amendment to section 4922, 1 Comp. Laws 1915 (the drain law of the state), added the following language to the section:

‘Provided further, that the holder of such order may, if he so desires, have the right to require payment thereof out of any moneys in the general fund of the county treasury that may be available, if the drain fund is insufficient for such purpose because of delinquency in the payment of drain taxes after the lands on which the said taxes shall have become delinquent have been offered for sale. In any such case where payment is made by the county treasurer out of the general fund any and all delinquent drain taxes received by said treasurer thereafter shall be credited to the general fund until the same is reimbursed. In all cases where bonds are issued and sold as herewith provided and the proceeds thereof are deposited in the county treasury to the credit of the fund of the particular drain, orders presented on such fund shall be paid out of the proceeds aforesaid, or out of the first annual installment of the taxes. In no case where there are outstanding bonds shall an order be paid out of any installment of taxes collected other than the first.’

Plaintiff's demand on the county treasurer for payment of his orders out of the general fund of the county was refused and mandamus was sought to compel payment. The defendants, answering, admitted the allegations in the petition, but denied liability on the part of the county for the reasons, first, that the amendment is unconstitutional, and, second, that it does not apply to orders issued before its enactment. The trial court agreed with both of these defenses, and dismissed the petition. His action is here reviewed on certiorari.

The claim of the defendants is thus stated:

‘First. That it violates article 8 of the Constitution relative to local self-government.

‘Second. That it violates section 16 of article 2 of the Constitution of Michigan and article 14 of the Constitution of the United States which prohibits the taking of property without due process of law.

‘Third. That the title of the act is insufficient for the purposes sought, and conflicts with section 21 of article 5 of the Constitution, providing that ‘no law shall embrace more than one object which shall be expressed in its title.’

‘Fourth. That, if held constitutional, said act must be construed as prospective and cannot relate to or affect the drain orders in question or any transaction prior to the effective date of said act in 1919.

‘Fith. That is violates section 34 of article 5, which provides ‘that the Legislature shall not audit or allow any private claim or account.’

‘Sixth. That it is contradictory, incomplete, uncertain, inoperative, and void.’

[1][2] Our state Constitution, unlike the federal, is not a grant of power to the Legislature, but a limitation upon it. When a law is attacked as beyond the power of the Legislature to enact, there is always a presumption that it is constitutional and valid, and the burden is on him who asserts that it is not to point out with certainty the constitutional provision which it violates. Scott v. Smart's Executives, 1 Mich. 295, 307;Sears v. Cottrell, 5 Mich. 253, 259;Tabor v. Cook, 15 Mich. 323, 325;Osborn v. Circuit Judge, 114 Mich. 655, 72 N. W. 982;Albert v. Gibson, 141 Mich. 698, 105 N. W. 19;Cummings v. Gardner, 213 Mich. 408, 182 N. W. 9.

The drain law now in force was enacted in 1897 (Act No. 254). In the 1915 compilation it appears as sections 4870 et seq. The authority of the state to legislate upon the subject arises from an exercise of its police power. The first section of the act limits its application to proceedings ‘conducive to the public health, convenience or welfare.’ The first law on this subject enacted in the state (chapter 131, R. S. 1846) provided for proceedings by a township drain commissioner. As the lands to be benefited were frequently situate in more than one township, and the excess water sought to be removed occasionally had its rise at a distance quite remote from the lands particularly submerged, and larger areas were consequently found to be benefited, the Legislature, in its wisdom, provided for the election of a county drain commissioner, prescribed his duties, and set forth with much particularity the proceedings under which a drain could be constructed and a tax levied and collected to pay for it. The commissioner is elected as are other county officers. He must execute a bond to the people of the state, to be approved by the board of supervisors. He must keep official records and make annual reports to the board, by whom his salary is fixed and his expense accounts audited and paid. The forms to be used are to be prepared by the Attorney General, and published with the law in pamphlet form by the secretary of state. The necessary books, blanks, and stationery for his use are to be provided by the county clerk. He may apportion a percentage of the cost of the drain upon any township ‘by reason of the benefit to the public health, convenience or welfare’ of its inhabitants or ‘as the means of improving any highway.’ Section 4906. This section also provides:

‘Where any portion of a highway is at the present time or may be in the future taken under the control of the county or district road commissioners, the county drain commissioner shall have the power to assess such highway a just apportionment of the benefits of construction of such drain, and the said county or district road commissioners shall receive notice of same as provided in section one of chapter five, and have the same right of appeal as provided by section two of chapter five. The board of supervisors, at its October meeting of each year, shall provide for the payment of said apportionments.’

Section 4956 provides that, when jurors or special commissioners render service, and the drain is not constructed, the charges provided therefor in the act shall be audited and allowed by the board of supervisors, and ‘paid from the contingent fund of said counties.’ Under section 4963 the boards of supervisors in several of the counties are authorized to prescribe certain additional conditions to be complied with before contracts shall be let.

These references to the statute but indicate the importance attached to the subject of drainage by the Legislature from time to time. In providing for the manner in which the cost of the drain should be paid, it could but have been apparent that such cost must necessarily be greatly increased, owing to the uncertainty in the time when all of the orders issued by the commissioner should be paid. To overcome this, it was provided that orders issued, but not paid, owing ot delinquency in the payment of taxes, should, after presentment for payment, bear interest. To secure still greater certainty, the amendment in question was enacted. The intent of the Legislature was, we think, clearly apparent. There was no purpose to impose a tax on the county at large to aid in the construction of a particular drain. Under the proceedings taken, the lands specially assessed would be benefited to the amount of the assessment. There was no presumption that they would be abandoned by the owners by reason thereof. The intent as evidenced by the language of the act, considered in the light of its other provisions, was simply to require the county to advance out of its general fund sufficient sums to retire any orders then unpaid, reimbursing itself when the lands delinquent were either redeemed or sold. The Legislature had already imposed certain expenses on the county, presumably in its interest, and for which it would receive benefit. In imposing this additional burden, we do not think it exceeded its power. In 15 C. J. 581, it is said:

‘The revenues of a county are the property of the county in the sense in which the revenue of a private person or corporation is regarded. A county being a public corporation existing only for public purposes connected with the administration of a state government, its revenue is subject to the control of the Legislature, and when the Legislature directs the application of a revenue to a particular purpose, or its payment to any party, a duty is imposed and an obligation created on the county. * * * Such legislative power and control is subject to restrictions and prohibitions contained in the state Constitution.’

The tax laws have frequently provided that some one of the agencies concerned in their collection should bear the burden of temporarily making up any delinquencies in payment.

‘Sec. 74. Every county treasurer who shall have received into the treasury...