Smith v. Curran

• Decision Date: 04 June 1934
• Docket Number: Motion No. 345.
• Citation: 255 N.W. 276,267 Mich. 413
• Parties: SMITH et al. v. CURRAN, Controller.
• Court: Michigan Supreme Court

267 Mich. 413

255 N.W. 276

SMITH et al.

v.CURRAN, Controller.

Motion No. 345.

Supreme Court of Michigan.

June 4, 1934.

Proceeding by John W. Smith and others, comprising the Common Council of the City of Detroit, a municipal corporation of the state of Michigan, for a writ of mandamus against William J. Curran, Controller of the City of Detroit, to compel respondent to execute certain refunding bonds.

Writ denied.

Argued before the Entire Bench.

Raymond J. Kelly, Corp.Counsel, and Paul T. Dwyer, Asst. Corp.Counsel, both of Detroit, for petitioners.

C. J. Huddleston, of Detroit, for respondent.

FEAD, Justice.

This is mandamus to compel the controller of the city of Detroit to execute certain refunding bonds, in the amount of about $360,000,000.He claims (a) want of proper execution by other officers and (b) want of legal authority to issue the bonds.

Section 3, chapter V,title VI of the Charter of the City of Detroit reads: ‘* * * all bonds issued by the municipality shall be issued in the name of the City of Detroit, a municipal corporation organized and existing under the laws of the State of Michigan, and shall be exempt from all City taxes.Such bonds shall be issued under the seal of the City, regularly deted and numbered and signed by the Mayor, countersigned by the Controller, and attested by the City Clerk.’

Section 12 provides that when the council shall have authorized the sale of bonds, the controller shall prepare them, and shall cause to be written or printed on the outside fold of each bond, the following words, ‘to be signed by the city treasurer’: ‘This bond has been made and issued in compliance with law; has been duly registered in the books of this office; and the proceeds of the same, together with all the premiums on sale and interest accruing before delivery, have been paid into this office.’

After causing the bonds to be duly executed and recorded in his office, the controller shall transmit them to the city treasurer, take his receipt, and report to the common council.

Section 13 provides that the city treasurer shall record the bonds, deliver them, and report to the common council.‘He shall sign the blank prepared by the controller, and no bonds shall be valid without his signature.’

May 8, 1934, the common council adopted a resolution for the issuance of refunding bonds, under authority of ActNo. 143, P. A. 1933, as supplemented by ActNo. 31, Extra Session 1934.The resolution provides: ‘Article XI, Section 10.All bonds issued under the provisions of this Resolution may be signed by the facsimile signatures of the Mayor, City Clerk and City Treasurer in lieu of the manual execution of same by said officers, and facsimiles of said signatures printed, lithographed or engraved on said bonds, shall be due execution of said bonds for all purposes, and such bonds when so executed shall be valid and binding obligations of the City of Detroit.The City Controller is hereby directed to sign said bonds by manual signature.’

The next day the mayor, city clerk, and city treasurer addressed a communication to the common council notifying it that they would ‘execute all refunding bonds issued under said resolution with a printed, lithographed, or engraved facsimile signature, which facsimile signatures are hereby adopted by the undersigned as their official signatures for the due execution of said bonds.’

On the same day, the controller notified the common council that he would not sign the bonds by manual signature because there is no authority in law for the execution by the other officers except by manual signature and because he was informed that ActNo. 31, Extra Session 1934, upon which the city relies for authority to issue the bonds, is unconstitutional.

In actions to enforce public bonds or obligations for which the public body has received consideration, substitute signatures by lithographed facsimile, or name written by another, or printed, have been held valid.Pennington v. Baehr, 48 Cal. 565;Town of Lexington v. Union Nat. Bank, 75 Miss. 1, 22 So. 291;Town of Weyauwega v. Ayling, 99 U. S. 112, 25 L. Ed. 470;Hewel v. Hogin, 3 Cal. App. 248, 84 P. 1002;Montgomery v. Township of St. Mary's (C. C.)43 F. 362;Toon v. Wapinitia Irr. Co., 117 Or. 374, 243 P. 554;Just v. Township of Wise, 42 Mich. 573, 4 N. W. 298.In those cases elements of estoppel abided because the public had received consideration; in some, estoppel was emphasized, and...