People ex rel. Attorney General v. The Supervisors of St. Clair County

• Decision Date: 23 October 1874
• Citation: 30 Mich. 388
• Court: Michigan Supreme Court
• Parties: The People on the relation of the Attorney General v. The Supervisors of St. Clair County

30 Mich. 388

The People on the relation of the Attorney General v. The Supervisors of St. Clair County

Supreme Court of Michigan

October 23, 1874

Heard October 21, 1874

Application for mandamus.

Writ issued as prayed.

Isaac Marston, Attorney General, for relator.

Ashley Pond, for respondents.

Cooley J. Graves, Ch. J. and Christiancy, J., concurred. Campbell J. Cooley, J. dissenting.

OPINION

Cooley, J.:

This is an application for a mandamus to compel the respondents to spread upon the tax rolls of their county for the current year a sum lost by the state in consequence of the failure of the late treasurer of that county to account for the moneys received at the regular tax sales for the year 1865. The defense is that by law the loss properly falls upon the state and not upon the county; but if the contrary of this be ruled, then it is insisted that the state has by laches lost any claim it may have had for indemnity from the county.

The question arises under the tax law of 1853 (Comp. Laws 1857, § 924), which provides that "all losses that may be sustained by the default of any county treasurer in the discharge of the duties imposed by this chapter shall be chargeable on said county, and the board of supervisors of such county shall add such losses to the next year's taxes of such * * county." This is very broad, and would seem intended to cover all possible losses that may arise from the county treasurer's default under the tax law. But the respondents raised the question whether, in the performance of the particular duty in the course of which these moneys were received, the county treasurer was not acting as agent of the state, instead of strictly as county treasurer, and whether, consequently, the loss by his default can be presumed to be within the intent of the section referred to.

In support of this suggestion attention is called to the section of the statute (Comp. L., 1857, § 382), which provides that "It shall be the duty of the county treasurer to receive all moneys belonging to the county, from whatever source they may be derived; and all moneys received by him for the use of the county shall be paid by him only on the order of the board of supervisors, signed by their clerk, and countersigned by their chairman, except when special provision for the payment thereof is or shall be otherwise provided by law." This section is found in the chapter of the Revised Statutes of 1846, prescribing generally for the election, qualification and duties of the several county officers; and its entire silence regarding the particular duty from which the loss in the present case has arisen, coupled with the fact that the treasurer before making the tax sales is required to give bond to the state conditioned for a proper accounting, is relied upon as showing the legislative understanding that the making of these sales was not properly a duty resting upon the county treasurer as such, especially as, in the event of his neglect or refusal to give the requisite bond, the auditor general was authorized by another section to appoint another person as agent of the state in making them, thus leaving it optional with the county treasurer to make the sales or not as he should elect.

The general provision, however, which makes it the duty of the county treasurer to receive and properly account for all county moneys, was not intended to cover all his official duties. This clearly appears from the requirements of his official bond (Comp. L., 1857, § 378), which, in addition to the condition that this officer should properly account for all moneys received by him officially, must also be conditioned that the treasurer, his deputy, and all persons employed in his office, should faithfully and properly execute their respective duties and trusts, clearly implying that there were official duties and trusts imposed upon the treasurer besides that of receiving and accounting for the county moneys. But the tax law itself contains abundant evidence to the same point. The county treasurer is made an indispensable officer in the system which it provides for, and duties too numerous to mention in this place are specifically imposed upon and to be performed by him officially, and without which it would be impracticable to enforce the collection of taxes. And a reference to the revision of 1846 will show that this provision making the county responsible for the defaults of its financial officer, was there incorporated as part of a general system, under which the townships were subjected to a like responsibility for the collection of county and state taxes by their treasurers, though such treasurers were required to give security to the county in addition to the official bonds, and in case of their default in collection, the county treasurer was to take upon himself to issue process to meet the emergency: See Revised Stat. 1846, ch. 20, §§ 34, 53, 120.

Nor do we think the circumstance that provision was made for the designation of some other...