Nash v. Robinson

• Decision Date: 05 March 1924
• Docket Number: No. 69.,69.
• Parties: NASH, Drain Commissioner, Cass County, v. ROBINSON, Drain Commissioner, Van Buren County.
• Court: Michigan Supreme Court

226 Mich. 146

197 N.W. 522

NASH, Drain Commissioner, Cass County,

v.ROBINSON, Drain Commissioner, Van Buren County.

No. 69.

Supreme Court of Michigan.

March 5, 1924.

Certiorari to Circuit Court, Cass County; L. Burget Des. Voignes, Judge.

Mandamus proceeding by Joel J. Nash, as Drain Commissioner of Cass County, Against A. D. Robinson, as Drain Commissioner of Van Buren County, to the Circuit court, to compel reassessment to cover money misappropriated by a former Cass County Commissioner. From an order granting the writ, defendant brings certiorari. Reversed, and petition dismissed.

Argued before CLARK, C. J., and McDONALD, BIRD, SHARPE, MOORE, STEERE, FELLOWS, and WIEST, JJ. James E. Chandler, of Paw Paw, for appellant.

Asa K. Hayden, of Cassopolis, for appellee.

BIRD, J.

This is a proceeding instituted by plaintiff to compel defendant to make a reassessment on lands in Berrien county, to cover its share of a deficiency in the fund of a tri-county drain.

The drain traverses the counties of Cass, Van Buren, and Berrien. The estimated cost of the drain was $172,800. Contracts were let and the drain was partially constructed. Later the work had to be abandoned because a large amount of the drain funds was misappropriated as the result of a conspiracy between the drain commissioner of Cass county and a contractor. To meet this deficiency in the drain funds the commissioner of Cass county requested the defendant, as commissioner of Berrien county, to join in making a reassessment, under C. L. 1915, § 4913. Defendant refused to comply, and this application for a mandamus in the circuit court was filed to compel him to do so. After a hearing the trial court ordered the writ to issue.

The position of defendant, both in the lower court and here, is that this section of the statute is not applicable to the situation as is exists in those counties. The statute referred to reads:

‘Whenever the amount assessed for the construction of any drain shall not be sufficient to complete the same, and to pay all the costs and incidental expenses, a further assessment shall be made to meet the deficit or additional expense. Such further assessment shall be apportioned, assessed, levied and collected as provided in the first instance, and on the same percentage, and shall be collected in one year, but there shall be no review of, nor appeal from such further assessment.’ C. L. 1915, § 4913.

A reasonable construction of this statute is that, when there has been an error of judgment is estimating the cost of a drain, it might be remedied by a reassessment. That situation did not occur in the present case. It is conceded that there was no error made in the estimated cost, and it is also conceded that, had there been no misappropriation of the funds, they would have been ample to defray the cost of the drain. The language of the section does not indicate that the Legislature intended to cover other contingencies. In estimating the cost of construction of drains there are so many unknown and uncertain elements to be considered that commissioners often err and make their estimate too low. It was to remedy these errors that the foregoing section was passed. Another reason which leads us to this conclusion is that the Legislature itself has recently placed a construction on this section by adding thereto a proviso which covers the present situation. That proviso reads:

‘Provided, that whenever by reason of the embezzlement or other wrongful act of any county official or by reason of the conspiracy of any county...