Sterling Bank of Sleeper v. Scott

• Decision Date: 18 June 1925
• Docket Number: No. 52.,52.
• Citation: 231 Mich. 362,204 N.W. 135
• Court: Michigan Supreme Court
• Parties: STERLING BANK OF SLEEPER & CHAMBERLAIN v. SCOTT, County Drain Com'r, et al.

231 Mich. 362

204 N.W. 135

STERLING BANK OF SLEEPER & CHAMBERLAIN

v.SCOTT, County Drain Com'r, et al.

No. 52.

Supreme Court of Michigan.

June 18, 1925.

Appeal from Circuit Court, Ogemaw County in Chancery; Guy E. Smith, Judge.

Mandamus by the Sterling Bank of Sleeper & Chamberlain, copartners, against Elmer E. Scott, County Drain Commissioner, and others. Decree for defendants, and plaintiff appeals. Reversed and rendered.

Argued before McDONALD, C. J., and CLARK, MOORE, STEERE, FELLOWS, and WIEST, JJ. Campbell & Foster, of Gladwin (G. W. Hand, of Bay City, of counsel), for appellant.

Evender M. Harris, of West Branch, Pros. Atty., for appellees Drain Commissioner, County Treasurer, and Board of Supervisors.

William T. Yeo, of West Branch, for other appellees.

FELLOWS, J.

Plaintiff owns four drain orders drawn on the fund of the Craner creek drain, a three county drain, which were issued to one Lucas for bridge construction work done by him during the construction of the drain. The orders were presented for payment when there was enough money in the fund to pay them, and payment was refused on the advice of the prosecuting attorney. Plaintiff sought to compel payment by mandamus. A township and several interested parties were permitted to intervene, and upon their application and that of defendants, the case was transferred to the chancery side of the court and the interveners filed a cross-bill seeking to set aside the drain proceedings and restrain payment of the orders. From a decree for interveners and defendants, plaintiff appeals.

No question is raised as to the propriety of the transfer of the case, and we shall dispose of it as it comes to us as an equity case. The final order of determination was made November 10, 1920, and the cross-bill, attacking the validity of the proceedings, was filed October 23, 1923, long after the drain and bridges were fully constructed. The cross-bill did not allege any fraud, but upon the trial some claim was made that Mr. Lucas' bid was lower than the price fixed in the contract, and that the yardage was not as large as he was paid for. We think neither claim is sustained on this record. It is here urged that the notice to interested parties provided for in section 4902, C. L. 1915, as amended, was not given.

The record affirmatively shows publication and posting of the notice, but is silent as to service on the interested parties. In the absence of any evidence we must assume that the officers did their duty. Collins v. City of Detroit, 195 Mich. 330, 161 N. W. 905. One of the orders was for flooring bridge on a trunk line highway (M-76) and it is urged that this work should have been separately let to the lowest bidder. But this was a part of the construction of this bridge and was made necessary by requirements of the state highway department. The payment was at the contract price which was the lowest bid. One of the orders was signed by only two of the commissioners, but its transfer to plaintiff was tantamount to an assignment of Mr. Lucas' claim for labor. Grain Co. v. Condensed Milk Co., 214 Mich. 306, 328, 183 N. W. 218. What we have said demonstrates that no constitutional rights of the complaining parties have been invaded.

The principal complaint against the regularity of the drain proceedings is that the survey and plans for the bridges were made by a surveyor, who had not registered under the provisions of Act 334, Public Acts 1919 (section 19). The survey was made by Mr. Lucas, a surveyor of 20 years' experience; the plans for the bridges were also made by him; the expenditure exceeded $2,000. Some of the work in surveying and making the plans was done before and some after the act took effect. The orders here involved are not for the service of Mr. Lucas in making the plans and doing surveying so that in Re Reidy's Estate, 164 Mich. 167, 129 N. W. 196, and kindred cases do not apply.

The fact that Mr. Lucas made the plans did not preclude him from bidding on the contract, or preclude the drain commissioners from letting the contract to him, if he was the lowest responsible bidder. The orders here involved are orders issued to him as a contractor. The contention is that ...