People ex rel. Ambler v. Auditor General

• Decision Date: 04 June 1878
• Citation: 38 Mich. 746
• Parties: People ex rel. Schuyler W. Ambler, Treas'r of Gratiot County v. Auditor General
• Court: Michigan Supreme Court

38 Mich. 746

People ex rel. Schuyler W. Ambler, Treas'r of Gratiot County v. Auditor General

Supreme Court of Michigan

June 4, 1878

Submitted April 17, 1878

Mandamus.

Mandamus, denied.

Cowles & Cahill and S. F. Seager for relator. A municipal corporation can always recover back money illegally paid out by any of its officers, Trumbell v. Compbell, 3 Gilm. 502; Petersburg v. Mappin, 14 Ill. 193; U. S v. Todd, 13 How. 52; Att'y Gen'l v. Moliter, 26 Mich. 444; a board of supervisors cannot bind the county b. the allowance of an unlawful claim, Barry County v. Manistee County, 33 Mich. 497; Kennedy v. Gies, 25 Mich. 83; Kewaunee County v. Knipfer, 37 Wis. 496; Brady v. New York, 2 Bosw. 173; McSpedon v. New York, 20 How. Pr., 395; Wolcott v. Lawrence, 26 Mo. 272; Peterson v. Mayor, 17 N. Y., 449; People v. Flagg. id., 584; People v. Chamberlain, 6 Hill 244; Supervisors v. Schenck, 5 Wall. 772; Warren County Soc'y v. Barr, 55 Ind. 30; Rothrock v. Carr, id., 334; Cumberland County v. Edwards, 76 Ill. 544; Supervisors v. Van Clief, 1 Hun 454; Supervisors v. Ellis, 59 N. Y., 620; Linden v. Case, 46 Cal. 171; Phelan v. San Francisco, 16 Cal. 531.

Attorney General Otto Kirchner for the respondent.

OPINION

Campbell, C. J.

This is an application for a mandamus to compel the Auditor General to pay over to Gratiot county certain moneys claimed to have been unlawfully charged to the county, and deducted from the amounts paid over on annual settlements. These moneys now demanded are made up of charges for deficiencies on re-sales of State tax bids, under the statute of 1869, which was supposed to have made counties responsible for all losses on sales of State tax lands held for more than five years. The statute was in the case of the Auditor General v. The Supervisors of Monroe, 36 Mich. 70, held insufficient to authorize such charges.

It appears from the application and return before us that of the sums of which restitution is now sought, $ 593.23 was charged over November 30, 1869; $ 305.58, November 30, 1870; $ 225.72, November 30, 1871; $ 118.24, November 30, 1872; $ 60.71, November 30, 1873; and $ 14.39 June 30, 1874.

It further appears that every year from October, 1869, to November, 1875, a cash balance varying in different years from a little over $ 3000 to more than $ 9000 a year was paid over by the State to the county, and that in each of those payments the amount was arrived at under the statute which directs the Auditor General to state the accounts between the State and county. The amounts claimed to have been unlawfully retained were all set forth in these statements, and the whole properly made known to the county authorities, who never complained and never sought a correction of the statements until recently, and who from year to year levied State taxes upon the basis of the auditor's apportionments, without asserting any claim to diminution.

In the Monroe county case the State was the complaining party, and we declined to interfere by mandamus to compel the county to raise money for charges that we held to be without sanction of law.

But the case before us is very different. This is substantially a proceeding to recover back from the State money paid into the Treasury and held there originally under a mutual mistake of law, both parties acquiescing, and both being under the same misapprehension. And furthermore the payment was in pursuance of an adjustment of accounts by the head of an Executive Department of the State whose action is not judicial and is not therefore subject to any direct proceedings for review in this court or elsewhere. Auditor General v. Pullman Palace Car Co., 34 Mich. 59.

It would be a matter worthy of very serious consideration whether a mandamus can be regarded as an admissible remedy to interfere with matters of a purely public and executive nature, where the Auditor's action is not purely mechanical, but involves the exercise of mixed functions. The only cases in which the writ has issued from this court hitherto against that functionary are cases of strict right where his action was plainly unlawful, or where there was some duty involved to do or not to do the act in dispute. In most instances affecting private or corporate rights no discretion could lawfully be given which would interfere with private remedies. And in a large class of his duties the statutes are specific enough to relieve the controversies which may arise from any conflict of jurisdiction. Cases of this kind are found in People ex rel. St. Mary's Falls Ship Canal Co. v. Aud. Gen., 7 Mich. 84, where the State had contracted to remit taxes on canal lands; People ex rel. Throop v. Aud. Gen., 9 Mich. 134, where military bounty lands were held exempt; People ex rel. Houghton County v. Auditor Genl., 9 Mich. 141, where specific taxes were payable to the county; Michigan Southern & N. I. R. R. Co. v. Aud. Gen., 9 Mich. 448, which was an injunction bill to restrain levying specific taxes; Smith v. Aud. Gen., 20 Mich. 398, also an injunction bill; Jackson Mining Co. v. Aud. Gen., 32 Mich. 488, also a proceeding to prevent the collection of an unlawful specific tax.

While there is no doubt some difficulty in drawing with precision any...