People ex rel. Plugger v. Township Board of Overyssel

• Decision Date: 28 April 1863
• Citation: 11 Mich. 222
• Court: Michigan Supreme Court
• Parties: The People on relation of Aldert Plugger and others v. The Township Board of Overyssel

11 Mich. 222

The People on relation of Aldert Plugger and others v. The Township Board of Overyssel

Supreme Court of Michigan

April 28, 1863

Heard April 8, 1863; April 9, 1863 [Syllabus Material]

Motion for a mandamus.

The relators, Aldert Plugger, W. J. Mulder, M. D. Howard, Homer Schaddelee, Jan Trimpe, W. K. Fliestra, H. D. Post, P. F Pfaustiehl, Charles J. Pfaff and John Roost, set forth in their application:

That in pursuance of "An act to authorize the township of Holland and other townships in the counties of Ottawa and Allegan, to make loans and levy taxes for the improvement of the harbor at the mouth of North Black River, in Ottawa county," approved February 8, 1858, the townships of Holland, Zealand, Overyssel and Fillmore, voted respectively for a loan to be expended in improving the entrance from Lake Michigan to Black Lake Harbor, in the township of Holland that is to say: The township of Holland for a loan of twelve thousand dollars, the township of Zealand for a loan of three thousand dollars, the township of Overyssel for a loan of two thousand dollars, and the township of Fillmore for a loan of two thousand dollars.

That subsequent to such votes, the township board of each of the said townships appointed, from year to year, seven freeholders, pursuant to section four of the said act, to act in behalf of such township, and the said seven freeholders appointed for the township of Holland, entered into a contract with one Zindweg, for piers, to improve the entrance to the harbor of said North Black Lake, at a cost of $ 5,000, and the same were constructed and accepted, and the price paid by said township of Holland, out of said sum of $ 12,000 so voted by it.

That afterwards, on December 23, 1858, the freeholders so appointed by the several townships, and constituting the "Harbor Committee," so called, met to receive proposals for the building of two piers at the mouth of North Black River, in pursuance of public notice previously given by them, and then and there accepted the bid of the relators, which was the lowest bid therefor, at the sum of $ 14,000, and a contract was accordingly made by said committee with the relators, for the construction of such piers by the first day of September, 1860, under the direction of overseers to be appointed by the boards of freeholders of the several towns, and in accordance with plans and specifications made a part of the contract, at the price of $ 14,000, being the whole total voted by said townships, after deducting the $ 5,000 so expended by the township of Holland.

That the work, under said contract, was performed and completed by the relators in the fall of 1861, to which time the contract had been extended; but, that the said boards of freeholders of Zealand, Overyssel and Fillmore, could not be induced to meet with the board of freeholders of Holland, to determine upon the acceptance of the same, and the said board of freeholders of Holland, on January 13, 1862 approved and accepted the work as completed under the contract, and certain modifications of the same which had been agreed upon.

That the township of Holland has paid seven thousand dollars upon said contract, and the township of Zealand eighteen hundred dollars, but that the townships of Overyssel and Filmore have paid nothing, and the respective township boards now refuse to pay, or to issue bonds for the amount so voted by them respectively; and the township board of Zealand refuse to pay or issue bonds for the balance of $ 1,200, so voted by that township.

The relators then set forth a demand upon the township boards of the respective delinquent towns, for the issue to them of bonds for the respective sums so voted, and the refusal of the boards to issue the bonds in compliance with the demand. And they now move for a mandamus directed to the township board of Overyssel, to compel the issue of bonds for $ 2,000 by them.

The township board showed cause, alleging the original invalidity of the contract, for want of power in the harbor committee to contract under said act, and because four of the said board of freeholders of the township of Holland, at the time the contract was entered into, were among the contractors for doing the work. They aver, upon belief, that the work was never fully executed, and say that if ever accepted, it was by the contractors themselves. Other matters of defense, not necessary to be here mentioned, were also insisted upon.

Mandamus denied, with costs.

Balch & De Yoe, for respondents, insisted that the relators had a complete remedy at law, and that the court could not interfere by mandamus: 1 N. Y., 563; 18 Pet. 291; 1 Kern. 563; 5 Hill 616; 2 Barb. 417; 4 Met. 73; People v. Judges of Branch Circuit, 1 Doug., Mich., 319. And that the contract was invalid for the reasons stated.

A. Russell, for relators, argued that there was nothing in the law disqualifying members of the committee from becoming contractors; that the township of Overyssel being fully represented in the harbor committee when the contract was let, was estopped from asserting its invalidity because of members of the committee being among the contractors: that it was not competent to sue the townships and collect by execution, as they were only authorized by the act to pay in bonds, and that in respect to the work, the four towns were to be regarded substantially as partners, so that it was competent for one town to adjust and liquidate the account of the relators, who were creditors of the partnership, by accepting the work at the contract price, as Holland did.

Manning, J. Christiancy, J., Campbell, J. concurred. Martin, Ch. J. did not sit in this case.

OPINION

Manning J.:

Four of the relators, who took the contract to build the piers, were members of the board of freeholders organized under the act for the purposes therein mentioned, and that let the contract on behalf of the public. So careful is the law in guarding against the abuse of fiduciary relations, that it will not permit an agent to act for himself and his principal in the same transaction, as to buy of himself, as agent, the property of his principal, or the like. All such transactions are void, as it respects his principal, unless ratified by him with a full knowledge of all the circumstances. To repudiate them he need not show himself damnified. Whether he has been or not is immaterial. Actual injury is not the principle the law proceeds on in holding such transactions void. Fidelity in the agent is what is aimed at, and as a means of securing it, the law will not permit the agent to place himself in a situation in which he may be tempted by his own private interest to disregard that of his principal. Hence, the law will not permit an administrator to purchase at a public sale by himself, property of the estate on which he has administered; or a guardian the property of his ward, when sold by himself. All public officers are agents, and their official powers are fiduciary. They are trusted with public functions for the good of the public; to protect, advance and promote its interests, and not their own. And, a greater necessity exists than in private life for removing from them every inducement to abuse the trust reposed in them, as the temptations to which they are sometimes exposed are stronger, and the risk of detection and exposure is less. A judge can not hear and decide his own case, or one in which he is personally interested. He may decide it conscientiously and in accordance with law. But that is not enough. The law will not permit him to reap a personal advantage from an official act performed in favor of himself. For these reasons, we hold the contract we are asked to enforce by mandamus, void as against public policy: See Clute v. Barron, 2 Mich. 192; Dwight v. Blackmar, 2 Mich. 330; Ingerson v. Starkweather, Walk. Ch., 346; Beaubien v. Poupard, Har. Ch., 206; Walton v. Torrey, Har. Ch., 259; Perkins v. Thompson, 3 N.H. 144; Obert v. Hammel, 3 Harrison (N. J.), 74; Lazarus v. Bryson, 3 Binn. 54.

We think it no exception to the rule we have stated, that all the contractors were not members of the...