Taylor v. Shimmel , 107 Mich. 676 ( 1895 )

Long, J.

Defendant was removed by the township board from the office of assessor of school district No. 4, Maple Grove township, in the county of Manistee. William G. Taylor made the complaint (which was in writing) that, as assessor, the defendant had illegally used and disposed of public moneys intrusted to his charge, and had persistently refused and neglected to discharge the duties of his office as such assessor. The proceedings were brought under section 5170, 2 How. Stat., which provides for the removal from office by township boards of any school-district officer who shall have illegally used or disposed of any of the public moneys intrusted to his charge, or who shall persistently, and without sufficient cause, refuse or neglect to discharge any of the duties of his office. After the removal, the defendant removed the cause to the circuit court for Manistee county, by writ of certiorari. The only allegation of error upon which the writ was issued is that “said township- board erred in malting an order of removal removing this deponent from office as assessor of this school district, upon all the allegations set forth in said complaint, without proof establishing them.” The circuit court affirmed the order made-by the township board, and the case comes to this court, by writ of error.

The return was made by the township clerk for the-board, and states that all the testimony is not returned, but that the defendant repeatedly testified that he had paid out the various sums of money set forth in the complaint, from the funds belonging to the school district,, without any orders drawn by the director and countersigned by the moderator of the district, and that there was. testimony showing that the defendant did persistently neglect and refuse to perform the duties of the office of assessor. It is contended, however, that the court could not consider this return, as the testimony was returned, and that from the testimony it conclusively appears that the return is not true. If no testimony had been returned, we should be compelled to take the return as true, •and it must be now so taken, as the return shows that all of the testimony is not included in the record. Counsel for defendant relies upon the case of McGregor v. Board of Supervisors, 37 Mich. 388. That was a proceeding to remove the county treasurer of G-ladwin county, for failing to file his official bond, and it was held that the records of the board of supervisors failed to show all the facts necessary to constitute cause of removal. It was there said that the deficiencies in the record in this regard could not be supplied by return to a writ of certiorari. It was deemed necessary by the court in that ease that the records of the board should show affirmatively all the steps requisite to the removal. In the present case it was not necessary to record the testimony taken. The return sets out the acts complained of, and that evidence was given which supported the complaint. We must take the return as true.

The judgment' of the court below, affirming the action of the township board, must be affirmed, with costs.

The other Justices concurred.