Wall v. Trumbull

• Decision Date: 02 November 1867
• Citation: 16 Mich. 228
• Court: Michigan Supreme Court
• Parties: Chester Wall v. David D. Trumbull

16 Mich. 228

Chester Wall v. David D. Trumbull

Supreme Court of Michigan

November 2, 1867

October 8, 1867; October 9, 1867; October 10, 1867, Heard

Error to Jackson circuit.

This was an action of trespass, brought by plaintiff in error against defendant in error, for issuing his warrant as supervisor to collect a certain alleged illegal tax, and by which the property of plaintiff in error was sold.

The defendant below pleaded the general issue, and gave notice that he did the act as supervisor. Judgment was rendered in his favor.

Judgment affirmed, with costs.

Austin Blair and Johnson & Higby, for plaintiff in error:

1. The tax was illegal and void, because the case had never arisen in which the electors were entitled by law to vote "to refund money to pay bounties," in pursuance of act 217 laws of 1865, p. 477.

The township of Sandstone had never voted the money, or hired it or issued bonds for it, or done any act indicating that this money should be loaned or advanced on the credit of the town.

On the contrary, every dollar of this money had been voluntarily subscribed, paid and expended by "individuals of the town acting on their own behalf, and for purposes determined upon by themselves entirely."

It is true, they acted by and through war meetings, and some of the town officers were present; but they did not assume to act for the town, or to bind it either for the present or the future. There was nothing for the act to legalize.

These meetings levied a tax upon those who were liable to draft, and determined that those who did not pay this should have no benefit of the moneys raised by the committees. They expended the money in the purchase of volunteers, in such a manner as they pleased.

If some were encouraged to subscribe upon the idea that a law might be passed by which the money could be refunded by a tax, then it is answered that no such law exists.

The special town meeting expressly refused to act: 13 Mich. 540.

2. The allowance of the accounts by the township board was wholly without jurisdiction, and void, and can form no justification for any act: 14 Mich. 336, and cases cited in brief for respondent.

3. The certificate of the township clerk to the supervisor can not help this want of jurisdiction. He had no right to make it. He can only certify lawfully what the board can lawfully do: 1 Comp. L., 296; Laws of 1858, 181; Laws of 1865, 478.

The certificate shows on its face that the amount is to be raised for an illegal purpose. There was, and could be, lawfully, no bounty fund or tax in Sandstone.

If the certificate would protect the defendant as supervisor, it could not protect him against the action for wrongfully allowing the accounts: 4 Cush. 494.

4. The tax being illegal, and the plaintiff's property having been sold for it, the supervisor is liable in this action: 13 Mass. 271; 4 Pick. 399; 5 Mich. 183; 1 Kern. 563; 3 Seld. 517.

The defendant, in this case, acted upon the town board in the unlawful allowance of the claims; and as supervisor, in levying the tax.

He was not compellable to assess an illegal tax: 13 Mass. 282; 4 Cush. 494; 4 Gray 44.

That the defendant knew this tax to be illegal, is proved by his putting it in a separate column, which is not authorized by law. It should have been put in the column of township expenses: Laws of 1865, 477.

Wm. K. Gibson and E. Pringle, for defendant in error.

Cooley, J. Martin, Ch. J. and Christiancy, J. concurred. Campbell, J. dissenting.

OPINION

Cooley J.:

The defendant is sued in trespass for spreading upon the tax roll of the township of Sandstone, of which he was the supervisor for 1865, the amount of certain allowances by the township board, for moneys advanced by individuals to pay war bounties, for the collection of the plaintiff's proportion of which certain of his personal property was seized.

The following facts appear in the case: On February 4, 1865, an adjourned township meeting was held, at which a committee was appointed to act in filling the quota of the township under the then recent call of the president for 300,000 men. Immediately after the adjournment of that meeting, the persons present organized themselves into what was called a war meeting, which meeting was adjourned from week to week, for two or three months, until the quota was filled. The main object of the meeting was to procure subscriptions in money sufficient to hire volunteers to fill the quota of said township. Committees were appointed in each school district to procure subscriptions. An assessment was made upon each person liable to draft, and it was voted that any one who failed to pay the assessment should be excluded from the benefit of the common fund; but as it does not appear whether any one did fail to pay, and the quota was actually filled, so that all had the advantage of the subscription, I regard this fact as immaterial. The amount actually subscribed and paid was $ 4,518.23, and the number of the subscribers was 169.

The clerk of the township acted as clerk of the said township meeting, and he was requested by some members of the township board, and other electors present, to correspond with the member of the house of representatives from that portion of Jackson county, to ask his assistance in procuring the passage of a law by which moneys paid for raising volunteers might be refunded by a tax; and the clerk did have such correspondence. Minutes of the proceedings of the war meetings were kept by the secretary thereof, for the purpose that, if such a law should be passed, the subscribers might have the benefit thereof. The subject of refunding the money raised by such subscriptions, by a tax upon the township, and of obtaining a law for that purpose, was frequently and openly mentioned in said war meetings, and the statement was also made, when the subject was mentioned, that said moneys would be refunded, should authority be given for that purpose. And individuals composing the subscription committees frequently, in order to induce persons to subscribe, held out to them the inducement that there would probably be a law passed authorizing the refunding of the money by a tax, and in that case the subscribers would receive back their money. Nevertheless, when the money was paid on these claims, many of them-- but what particular ones does not appear--were understood to be gifts.

On March 16, 1865, the governor approved an act "to legalize the action of the several townships, city and wards in the county of Jackson, in paying bounties to volunteers, and to refund moneys to pay bounties." This court, in Miller v. Grandy, 13 Mich. 540, held that this act did not authorize the refunding of moneys paid for the purpose, except where they had been advanced on the credit of the township in reliance upon some formal or informal action of the township or its authorities.

Assuming that these subscriptions came within the act, the question was submitted to the voters of the township, at the annual meeting for 1865, whether the bounty moneys thus subscribed and paid should be refunded, and the vote was in the affirmative. On October 2, 1865, a quorum of the township board met for the purpose of auditing and allowing, under this act and vote, the claims for moneys which had been thus subscribed and paid, and $ 4,228.14 were allowed on that day, and the balance, being $ 290.09, were allowed on the seventh day of November following. The defendant was present at these meetings of the township board. At the first of them it was voted to raise the full sum of $ 4,518.23, to meet these claims, and the defendant, with the other members, signed a record of the proceedings containing this vote, and containing also an order to the supervisor to levy upon the taxable property of the township the sum of $ 4,918.83, to raise that amount and the sums to be raised for other township purposes. The township clerk made out and delivered to the supervisor the usual certificate of the sum to be raised for township purposes, specifying therein moneys to be raised, as follows: For the bounty fund, $ 4,518.23; for general fund, $ 252; for highway expenses, $ 148.60. This certificate bears date October 2, 1865, but it does not appear at what time it was actually made and delivered to the supervisor, except that the circuit judge finds it was between the second day of October and the twenty-ninth day of November.

On the trial in the court below, the plaintiff proved that some of the persons who had claims allowed in their favor did not appear before the board, but the accounts of four of them were presented by the township clerk. Some of the claims were sworn to, and some were allowed from the subscription papers which were before the board, but the genuineness of the signatures was not proven otherwise than by the subscriptions themselves. The township clerk, who was a member of the board, was one of the committee to obtain subscriptions, and showed to the board what subscriptions were paid to him, and which he knew to be correct. The subscription lists which were marked paid were relied on by the board as evidence of the payment of the several sums subscribed. All this evidence of the action of the board on the allowance of the claims was afterwards struck out by the circuit judge as incompetent, and he rendered judgment for the defendant, on the ground that he was protected by the clerk's certificate in levying the amount of tax therein specified.

If the defendant were in no way connected with the allowance of the claims, I should agree with the circuit judge that the clerk's certificate would protect him, unless the certificate on its face apprised him that some of the moneys specified in it were illegal charges. The statute...