Van Akin v. Dunn

• Citation: 117 Mich. 421,75 N.W. 938
• Court: Supreme Court of Michigan
• Decision Date: 28 June 1898
• Parties: VAN AKIN v. DUNN, COUNTY TREASURER.

75 N.W. 938

117 Mich. 421

VAN AKIN v. DUNN, COUNTY TREASURER.

Supreme Court of Michigan

June 28, 1898

Certiorari to circuit court, Monroe county; Edward D. Kinne, Judge.

Application for mandamus by Simeon Van Akin against Luke Dunn, treasurer of Monroe county. A peremptory writ was granted, and defendant brings certiorari. Reversed.

Willis Baldwin, for respondent.

John O Zabel, for relator.

HOOKER J.

The relator obtained from the circuit court a peremptory writ of mandamus, requiring the respondent to pay a certain drain order, alleged to have been purchased from the payee named therein, after presentation and demand of payment by the holder and refusal by the respondent. The respondent has brought the case to this court by certiorari.

The return of the treasurer to the order to show cause, issued by the circuit court, shows that the drain in question was laid out by a township drain commissioner but that his office was abolished by law before payment was made, and the matter passed under the control of the county drain commissioner. The township commissioner let a contract to Daniel Bolton to make the required excavation, and lay 13-inch tile in a section of said drain. On March 16, 1898 the relator presented the order in dispute for payment, which was refused, although there was then, and is now, sufficient money in said drain fund, of said drain, to pay the same. Respondent's reason for not paying it was that he had been previously notified by the county drain commissioner to refuse payment until further notice, because the work for which the order was given had not been completed. Respondent shows, further, on information and belief, that Bolton did some work upon such contract, under the township commissioner, who verbally reported it to the county drain commissioner as accepted; that the township commissioner's office was abolished by Act 254 of the Public Acts of 1897, taking effect June 3, 1897; and that the moneys assessed to pay for the drain were paid by the respondent, and the order was of necessity, and in accord with the act, issued by the county drain commissioner, who had no personal knowledge of the work, and that after issuing the order he learned that the contract was not completed whereupon he notified the township treasurer not to accept the order in payment of the drain tax, but to treat it as wholly void, which he accordingly did. Respondent also refused payment of...