Stevenson v. Bay City

• Decision Date: 22 October 1872
• Citation: 26 Mich. 44
• Court: Michigan Supreme Court
• Parties: Thomas Stevenson v. Bay City

26 Mich. 44

Thomas Stevenson v. Bay City

Supreme Court of Michigan

October 22, 1872

Heard October 17, 1872

Error to Bay circuit.

Judgment affirmed, with costs.

McDonnell & Cobb and Ashley Pond, for plaintiff in error.

Marston & Hatch, for defendant in error.

OPINION

Campbell, J.:

Stevenson was sued as one of the sureties, bound severally upon the official bond of Robert McKinney, controller of Bay City.

A ground of defense set up on the trial was, that he signed it on condition that it should not be delivered until executed also by certain others, who did not in fact sign it, and the court below refused to permit such evidence, offered in connection with a further offer to show that notice of this was given to James J. McCormick, officially, as mayor of Bay City, and who, as well as the recorder, had power under the city ordinances, to approve the sureties of the controller's bond.

It appeared, however, that McCormick was himself one of the sureties on the bond. Being a party to it, of course he could not approve it, or represent the city by any official action in regard to it. This would put him in a double and antagonistic position, where his public and private interests would directly conflict. No man can thus deal with himself as a representative of some other interest. The cases of Clute v. Barron, 2 Mich. 192, and Dwight v. Blackmar, 2 Mich. 330, laid down this elementary doctrine, which has been repeatedly applied since. The principle is too plain to need any vindication.

An offer was also made to show by parol evidence, that the ordinance fixing the duties of controller, was actually passed by less than a majority of all the aldermen, and therefore void. The court refused to allow the evidence to be admitted. The exception to this ruling is urged partly on the ground that, in the case of McCormick v. Bay City, 23 Mich. 457, this court referred to the entry on the minutes as less definite than it ought to have been. It was not held, however, that the meaning was not attainable from the record itself. On the contrary, it was distinctly decided that the entry showed a majority vote, such as the charter required, and that this meaning was derivable from the language alone, properly construed by the principles of interpretation required to be applied to such official entries. The offer was, therefore, to contradict the public records of Bay City, by parol. When the law requires municipal bodies to keep records of their official action in the legislative business conducted at their meetings, the whole policy of the law would be defeated if they could rest partly in writing and partly in parol, and the true official history of their acts would perish with the living witnesses, or fluctuate with their conflicting memories. No authority was found, and we think none ought to be, which would permit official records to be received as either partial or uncertain memorials. That which is not established by the written records, fairly construed, cannot be shown to vary them. They are intended to serve as perpetual evidence, and no unwritten proofs can have this permanence. See Hall v. People, 21 Mich. 456.

It is also urged that, under the charter of Bay City, there was no power to impose upon the controller the duty of negotiating its bonds. As this was the occasion of the suit, McKinney having failed to account for the proceeds of city bonds which he disposed of, the objection, if valid, would render the official security inapplicable to the case. The sureties were only liable for his defaults as controller, acting under color of office.

The charter (2 Sess. L. 1869, p. 585, § 40), declares that "the controller shall perform such duties in relation to the finances, accounts, and other matters of the city, as shall be prescribed by ordinance."

There is no other officer in whom the charter itself vests any specific powers in regard to the negotiation of loans or bonds. They are not peculiarly appropriate to the treasurer. The whole subject is left open for such action as may be found proper. It cannot be seriously urged that this is not a function "in relation to the finances of the city." And if there is a valid ordinance on the subject, his duties under it are as clearly duties belonging to the office of controller as any of the duties imposed upon him for any purpose.

It is also urged that it was error to hold that he would be liable for the proceeds of bonds, when not directed by the council to negotiate them. But, as he is the only officer who can negotiate them under the ordinance, and the bonds are not complete without his signature, it is evident that, when bonds are in his hands in proper shape to be issued, it is his official duty to keep them safely until he lawfully negotiates them; and the power he thus obtains over valuable securities, is one of the very reasons why bonds are required of him. It is quite as necessary to guard against an embezzlement of...