Township of Taymouth v. Koehler

• Decision Date: 13 October 1876
• Court: Michigan Supreme Court
• Parties: The Township of Taymouth v. Clarkson A. Koehler

35 Mich. 22

The Township of Taymouth v. Clarkson A. Koehler

Supreme Court of Michigan

October 13, 1876

Heard October 4, 1876

Error to Saginaw Circuit.

Judgment reversed, with costs, and a new trial granted.

Gaylord & Hanchett, for plaintiff in error, to the point that the action of the board of highway commissioners as a board should be proved by the record of their proceedings, cited Comp. L., § 752; Stevenson v. Bay City, 26 Mich. 44; Jordan v. School District No. 3, 38 Me. 164; that in making contracts which are to bind the town, they are in the exercise of a public trust or power, and must meet together to deliberate, and take their action at a meeting of which all had notice or at which all are present: Scott v Young Men's Society, 1 Doug. 119; Ex Parte Rogers, 7 Cow. 526; Martin v. Lemon, 26 Conn. 192; Damon v. Inhab. of Granby, 2 Pick. 345; Ballard v. Davis, 31 Miss. 525; Keeler v. Frost, 22 Barb. 400; Grindley v. Barker, 1 B. & P., 229; Lee v. Parry, 1 Denio 125; Doughty v. Hope, 3 Id. 249; Babcock v. Lamb, 1 Cow. 238; Crocker v. Crane, 21 Wend. 211; Newcombe v. Chesebrough, 33 Mich. 321; that the use of the bridge by the citizens of the town as a part of the public highway could raise no implication by the town of a promise to pay for materials used in building it; but acts which would raise such an implication must be done by the corporation or corporate authorities: Hayward v. School District No. 15, 2 Cush. 419; Taft v. Inhab., etc., 14 Mass. 281; Pratt v. Swanton, 15 Vt. 147; Knowlton v. Inhab., etc., 14 Me. 20; Moore v. Inhab., etc., 13 Id. 293; Morrell v. Dixfield, 30 Id. 157; 38 Id. 164; Ruby v. Abyssinian Soc., 15 Id. 306; Davis v. School Dist., 24 Me. 349; that having furnished the iron under the contract, plaintiff was at most only entitled to the order provided for in the contract, and his remedy would be by mandamus to compel delivery of the order or its payment: McArthur v. Duncan, 34 Mich. 27; and they argued that the record of the township meeting did not show the requisite steps for calling and ordering the meeting and that the proceedings were irregular and imperfect.

Wisner & Draper, for defendant in error, argued that as the commissioners had authority to buy the iron in question for the bridge, and as they have received it and used it in the bridge, the town is liable for it, and this liability does not depend upon a strict and methodical performance by the commissioners of the duties of their office; that the commissioners having authority to bind the town for material to use in the bridge, it makes but very little difference, as far as the plaintiff's rights are concerned, how they exercised their authority; and they cited: Ang. & Ames on Corp., § 296; Randall v. Van Vechten, 19 Johns. 56; Damm v. Granby, 2 Pick. 345; Bissell v. M. S. & N. I. R. R. Co., 22 N. Y., 358; Argenti v. San Francisco, 16 Cal. 255; State Board of Agriculture v. Citizens' St. R. W. Co., 17 Am. 702; Abbott v. Herman, 7 Me. 118.

OPINION

Marston, J.

Koehler brought an action of assumpsit against the township to recover the value of certain iron, furnished to be used in the construction of a bridge, under a written agreement made with one of the commissioners of highways of said township.

Several questions were raised and discussed relating, first, to the authority of said commissioners of highways to authorize the making of the contract in question, which it was said depended upon the regularity and validity of a special meeting of the people of the town called to vote moneys to build this bridge; second, as to whether the board had authorized the making of the contract in question; and, third, whether there was or could be a ratification by the board of the acts and contracts of the commissioner who made the contract under which the iron was furnished, which would render the township liable, even if the contract was not valid in the first instance.

1. In Moser v. White, 29 Mich. 59, it was said that "every essential proceeding in the course of a levy of taxes must appear in some written and permanent form in the records of the bodies authorized to act upon them. Such a thing as a parol levy of taxes is not legally possible under our laws." While, therefore, there should be proper written evidence on file or of record, showing that the requisite statutory preliminary requirements to a legal meeting had been complied with, and showing that such a meeting had been held, and the proceedings thereof, courts should bear in mind that, either from a lack of experience or otherwise, it frequently happens that the persons whose duty it is to give notice of and keep a record of such meetings, fail to keep the files and records of their office in a clear and intelligible manner, and that to require the utmost strictness in this respect would result in many cases in rendering void the proceedings of such quasi corporations; their proceedings, therefore, should be liberally construed and all proper intendments made in favor of their regularity.--Cooley on Taxation, 246-7.

2. It did not appear of record that the board of highway commissioners had authorized Cuthbertson, one of their number, to make the contract under which the iron was furnished, or to superintend the building of the bridge. The township clerk is by statute made the clerk of the board of highway commissioners, and required under their direction to record their proceedings. It has, however, frequently been held that while parol evidence could not be admitted to contradict the record, yet that it might be introduced to show facts omitted to be stated; that the rights of creditors or third persons cannot be prejudiced by the neglect of the clerk to perform his duty in this respect:--Bigelow v. Perth. Amboy, 1 Dutcher 297; San Antonio v. Lewis, 9 Tex. 69; Bank v. Dandridge, 25 U.S. 64, 12 Wheat. 64; United States v. Fillebrown, 7 Pet. 28; Hutchinson v. Pratt, 11 Vt. 402; Westerhaven v. Clive, 5 Ohio 136; Athearn v. District, 33 Iowa 105; (this is very different from the record of authority to raise a tax.) If the board...