Iron County Board of Supervisors v. City of Crystal Falls , 23 Mich. App. 319 ( 1970 )

23 Mich. App. 319 (1970) 178 N.W.2d 527

IRON COUNTY BOARD OF SUPERVISORS
v.
CITY OF CRYSTAL FALLS

Docket No. 8,849.

Michigan Court of Appeals.

Decided April 24, 1970. Leave to appeal denied June 17, 1970.

H. James Starr, for plaintiff.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Maxine Board Virtue and Milton I. Firestone, Assistant Attorneys General, for intervening plaintiff.

Wisti, Jaaskelainen & Bourland, for defendants.

Before: R.B. BURNS, P.J., and FITZGERALD and VAN DOMELEN,^[*] JJ.

Leave to appeal denied June 17, 1970. See 383 Mich. 792.

PER CURIAM.

This is an appeal from a judgment entered in the circuit court of Iron County issuing a writ of mandamus directing defendants to proceed immediately with collection of a tax to pay the interest and principal on county hospital bonds yet unsold.

Plaintiff-appellee is the Iron County Board of Supervisors. Defendant-appellant is the City of Crystal Falls and the intervening appellee is the Municipal Finance Commission, which is represented by the Attorney General.

On April 23, 1968, plaintiff adopted a resolution for the issuance of county hospital bonds in the amount of $1,600,000. The resolution recited that the electors of the county had voted on May 16, 1967, to authorize such an issue. The bond resolution further provided for bonds to be issued which would mature serially beginning May 1, 1970, with interest payable on May 1, 1969 and semiannually thereafter.

At its regular October Meeting, the plaintiff adopted a separate resolution specifically authorizing "a tax of $2.03 per $1,000 based on Iron County's 1969 state equalized valuation of $59,361,645 on the 1969 tax rolls concerning debt service taxes on the hospital bond issue for the county of Iron, if legal."

Apportionment certificates were served upon each of the county townships, including the defendant, with the statutory direction to levy and collect the taxes as set forth. The defendants refused to levy the taxes. Consequently, plaintiff brought the action in the Iron County Circuit Court asking that a writ of mandamus be issued requiring defendants to levy and collect the taxes. The mandamus issued and defendants have appealed.

Mandamus is the traditional remedy for compelling the performance of mandatory legal duties by public officials. Clearly, the granting of the remedy is discretionary with the trial court. Livonia Drive-In Theatre Co. v. City of Livonia (1961), 363 Mich. 438; State Highway Commissioner v. Ottawa Circuit Judge (1954), 339 Mich. 390; Hazel Park Racing Association, Inc. v. Racing Commissioner (1953), 336 Mich. 508; City of Berkley v. Township of Royal Oak (1948), 320 Mich. 597; De Young v. State Land Office Board (1946), 316 Mich. 61; St. Ignace City Treasurer v. Mackinac County Treasurer (1944), 310 Mich. 108; Powers v. Secretary of State (1944), 309 Mich 530; McLeod v. State Board of Canvassers (1942), 304 Mich. 120; Tennant v. Crocker (1891), 85 Mich. 328; Hall v. Risley (1888), 69 Mich. 596.

Only a clear abuse of its discretion warrants interference by this Court on appeal. Kwaiser v. Peters (1967), 6 Mich. App. 153; Johnson v. Kramer Bros. Freight Lines, Inc. (1959), 357 Mich. 254; Spalding v. Spalding (1959), 355 Mich. 382; Detroit Trust Co. v. Sosensky (1942), 300 Mich. 353.

To support the issuance of mandamus, a plaintiff must have (1) a clear legal right to performance of the specific act sought to be compelled and (2) the defendant must have a clear legal duty to perform such act, which must be a ministerial act the duty to perform which is prescribed and defined by law with such precision and certainty as to leave nothing to the exercise of discretion or judgment. Taylor v. Ottawa Circuit Judge (1955), 343 Mich. 440; State Highway Commissioner v. Ottawa Circuit Judge, supra; Hazel Park Racing Association, Inc., v. Racing Commissioner, supra; Detroit Board of Education v. Superintendent of Public Instruction (1943), 304 Mich. 206.

Defendant does not dispute these principles or claim that its duties are not ministerial or that appellants have no legal right to compel performance of tax collections. The defendant argues, however, that notwithstanding the above, mandamus should not issue to accomplish an admittedly illegal purpose, citing Johnson v. Board of Supervisors of Ionia County (1918), 202 Mich. 597; and Board of Supervisors of Cheboygan County v. The Supervisor of the Township of Mentor (1892), 94 Mich. 386.

A careful reading of these cases demonstrates that the circumstances must be "exceptionally extraordinary before a supervisor may refuse to perform a ministerial duty.

In the Johnson case, for example, a board of supervisors was required to collect a tax which had been held invalid 15 years before in a proceeding involving the same parties. In the Cheboygan case, the conduct of the county board was found by the trial court to be intentionally and wilfully fraudulent and a gross outrage upon the rights of tax-paying citizens.

The present case is quite different. Here, the actions of the county board, if not legal, were at least fair on their face and conducted in good faith.

As the Michigan Supreme Court said in Cheboygan, supra, "the circumstances must be exceptionally extraordinary which will justify the supervisor in refusing to comply with his statutory duty."

It cannot be said that the circumstances here fall within that classification. Where the county board has acted in good faith with apparent fairness, those charged with ministerial duties in implementing the board's action must perform their duties. Cheboygan, supra; Common Council of Hudson v. Whitney (1884), 53 Mich. 158; Laubach v. O'Meara (1895), 107 Mich. 29.

The defendant here has failed to demonstrate such exceptional and extraordinary circumstances as would justify its refusal to perform the ministerial duties in question. A determination at this point of the legality of the board's action is unnecessary for the disposition of this appeal because more than mere illegality is required to justify the refusal to perform a ministerial act.

For these reasons, we are unable to say that the trial court abused its discretion by issuing the requested writ of mandamus. Therefore, its decision is affirmed. No costs, a public question being involved.

NOTES

[*] Circuit Judge, sitting on the Court of Appeals by assignment.