Toan v. McGinn

Decision Date08 April 1935
Docket NumberMotion No. 112.
Citation271 Mich. 28,260 N.W. 108
PartiesTOAN et al. v. McGINN et al.
CourtMichigan Supreme Court

OPINION TEXT STARTS HERE

Mandamus proceeding by William Toan and others against George McGinn and others, members of the Board of Supervisors of the County of Ionia, State of Michigan. From a judgment denying the writ, petitioners appeal.

Affirmed.Appeal from Circuit Court, Ionia County; Fred T. Miles, Judge.

Argued before the Entire Bench.

Kim Sigler, of Hastings, for appellants.

Geo. E. Nichols, of Ionia, for appellees.

EDWARD M. SHARPE, Justice.

Petitioners are taxpayers of Ionia county and as such petitioned the court for a writ of mandamus to compel the board of supervisors to bring action against three former county officials for the recovery of certain fees paid them during the years 1929 and 1932, inclusive. The facts are not in dispute.

On June 30, 1928, the board of supervisors adopted the following resolution relating to the salaries of certain county officials:

‘Resolution Regarding the Placing of County Officers on a Salary.

‘Resolved, that the following officers of Ionia county be placed on a straight salary basis instead of the salary and fee system as in the past.

‘It is recommended that the sheriff should be placed on a salary of $3500.00, under sheriff at $2,000 and deputy at $1,500, and that mileage be allowed at $.08 per mile for sheriff and deputies. That all fees due the county should be turned over to County Treasurer. County Clerks office at $3,500 and that all fees due the county be turned over to Co. Treasurer. County Treasurer at $2,500 with all county fees turned over to treasurer.

We feel that this will be a more satisfactory manner in handling these offices than in the past in the old salary and fee system.

‘Respectfully submitted,

Frank Linebaugh,

J. C. Long,

Wm. D. Robertson.

‘Moved by Frank Linebaugh and supported by Louis Peterson that the above resolution be adopted. Carried.’

On June 28, 1930, the board of supervisors adopted the following resolutions relating to the salaries of certain county officials:

‘Resolved that the County Officers of Ionia County be placed on the following Salaries for the years 1931 and 1932.

‘It is recommended that the Sheriff shall receive a salary of $3300.

‘It is recommended that the County Clerk receive a salary of $3300, for services rendered the County in criminal cases, as clerk of the Circuit Court, and for his services as clerk of the Board of Supervisors, and as Clerk of County and District Canvassers. For his services in civil cases and other matters, such fees and compensation as shall be provided by law.

‘It is recommended that the County Treasurer receive a salary of $2300, for services rendered to the County and civil fees.

‘Moved by A. A. Baxter and supported by Frank Linebaugh that the Resolution governing County Officers' salaries be adopted as amended.

‘Chairman calling for an Aye and No Vote. Majority of all Supervisors voting Aye the Resolution was adopted.’

After the adoption of this resolution, the following action was taken by the board: ‘Motion of A. A. Baxter and supported by James Hanigan that it is the understanding of this Board that the Resolution as adopted by this Board regarding County Officers' Salary is the same as entered into two years ago except that the Sheriff, Treasurer and County Clerk are to receive $200.00 each less in salary. Chairman calling for an Aye and No vote. Majority of all Supervisors voting Aye the motion carried.’

And at a meeting held on March 4, 1933, by the board of supervisors, another resolution was offered and, so far as it applies to this case, is as follows:

‘Whereas it seems to be necessary in order to settle the question that proceedings at law be commenced by the Board of Supervisors against said officers.

‘Therefore, be it resolved that the Prosecuting Attorney of the County of Ionia be and is hereby directed to begin proceedings to recover the fees paid to each of the aforesaid County officers, and that the chairman of the board of supervisors and clerk be authorized to sign any petition or other pleading or document that they may be advised is necessary for them to sign for the purpose of setting in motion a proceeding to settle the question whether the said County Officers aforesaid have a right to retain said fees, or whether they should not be required by the order and direction of the Court to pay such fees to the Treasurer of the County to be credited to the general fund.’

‘Upon which resolution a vote was taken, five of the supervisors, voting in favor thereof, and eighteen against, as a result of which the motion lost.’

Upon the refusal of the board of supervisors to act, the then prosecuting attorney took no further action except to represent the defendants herein in the present action. It is also conceded that petitioners have no interest in this action except in common with other taxpayers of Ionia county.

Upon the conclusion of the testimony, the learned circuit judge denied petitioners the writ as petitioned for, holding that:

1. It is contrary to public policy that public officials should be subject to actions by other than lawfully constituted authority.

2. That it was discretionary for the board of supervisors to act in the matter; and the court has no power to compel the board to act contrary to their judgment.

3. The petitioner having made out a prima facie case against the former county officials, that some action should be brought against said officials by the prosecuting attorney and, if for any reason he could not act, then by some other suitable person.

Section 1130, Comp. Laws 1929, prescribes the powers and duties of the several boards of supervisors of the state in the following language:

‘The said several boards of supervisors shall have power and they are hereby authorized at any meeting thereof lawfully held: * * *

‘Ninth, To prescribe and fix the salaries and compensation of all employees of their respective counties where not fixed by law, to adjust all claims against their respective counties except in counties having a board of county auditors, and the sums allowed in such adjustment of claims shall be subject to appeal as shall be provided by law; * * *

‘Sixteenth, To represent their respective counties and to have the care and management of the property and business of the county in all cases where no other provision shall be made.’

The board of supervisors speak only through their actions and resolutions. Such resolutions as were adopted in 1928 and 1930 relating to salaries of certain county officials were intended to place said officials upon a salary basis. This the board had a right to do. See Comp. Laws 1929, §§ 1345-1347. Under the present state of the...

To continue reading

Request your trial
66 cases
  • Apportionment of Mich. Legislature, In re
    • United States
    • Supreme Court of Michigan
    • 8 Marzo 1966
    ......, without plausible explanation or excuse, the Court will not set in motion any one of the several means of enforcement to which it may and should ...22, 34, 125 N.W.2d 13, 18, this language from Toan v. McGinn (1935), 271 Mich. 28, 260 N.W. 108: . "The applicable rules ......
  • Township of Casco v. Secretary of State, No. 126120
    • United States
    • Supreme Court of Michigan
    • 14 Junio 2005
    ...313 Mich. 289, 291-292, 21 N.W.2d 133 (1946); Geib v. Kent Circuit Judge, 311 Mich. 631, 636, 19 N.W.2d 124 (1945); Toan v. McGinn, 271 Mich. 28, 33, 260 N.W. 108 (1935); Sumeracki, supra at 171, 256 N.W. 843; Industrial Bank of Wyandotte v. Reichert, 251 Mich. 396, 401, 232 N.W. 235 (1930)......
  • Employees and Judge of Second Judicial Dist. Court, Second Div. v. Hillsdale County, Docket Nos. 73180
    • United States
    • Supreme Court of Michigan
    • 2 Diciembre 1985
    ...proven is the reasonableness and necessity of the expenditure, clearly renders a mandamus proceeding inappropriate. In Toan v. McGinn, 271 Mich. 28, 260 N.W. 108 (1935) this Court stated that mandamus will not lie to compel performance of a disputed fact, but rather only where there is a pl......
  • Lansing Sch. Educ. Ass'n v. Lansing Bd. of Educ.
    • United States
    • Supreme Court of Michigan
    • 31 Julio 2010
    ...the court's decision to invoke it was "one of discretion and not of law." Ayres, 42 Mich. at 429, 4 N.W. 274. See, also, Toan v. McGinn, 271 Mich. 28, 33-34, 260 N.W. 108 (1935); Thompson v. Secretary of State, 192 Mich. 512, 522, 159 N.W. 65 (1916); Drake, 4 Mich. at 103. The general rule ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT