Township of Waterford v. Willson , 257 Mich. 619 ( 1932 )

The question here presented, as it seems to me, is whether, under the provisions of Act No. 59, Pub. Acts 1915, as amended, and as now appearing in I Comp. Laws 1929, § 4314 et seq. (popularly known as the Covert act), a township, when assessed at large for a percentage of the cost of a highway improvement, must make payment to the county treasurer of the full amount of the tax so spread, or only of the amount thereof collected by its treasurer.

After determination by the county road commissioners to construct or improve a public highway under the provisions of the act, it is made the duty of such commissioners to determine the limits of the special assessment district to be assessed for benefits and to apportion the percentage of the total cost of construction which the county at large, the township at large, and any city at large (if benefited thereby) shall be liable to pay therefor. 1 Comp. Laws 1929, §§ 4331, 4332.

After review of the rolls thus made and ascertainment of the cost by estimates or the letting of contracts for construction, the county road commissioners shall prepare a tax assessment roll for the collection of taxes for the first year thereafter, and shall certify the same to the township board, to the legislative body of the city, and to the board of supervisors, and it is the duty of the latter board to "order such taxes collected at the same time, and in the same manner as are county, State and township taxes," and it is made the duty of the several assessing officers to spread such taxes upon their respective rolls "in the same manner as other general taxes are spread." 1 Comp. Laws 1929, § 4337. The moneys collected by the treasurers "shall be paid over to the county treasurer, and placed to the credit of the special assessment district." 1 Comp. Laws 1929, § 4340.

Under section 4341 the county road commissioners may borrow the money to make the desired improvement and —

"pledge the faith and credit of the assessment district, the township or townships concerned, and of the county or counties at large, and of any city or cities which may be assessed at large, in proportion as each has been assessed for benefits for the payment of such money so borrowed, which may be evidenced by bonds or notes issued on behalf of such counties, townships, cities or special assessment districts, by the county road commissioners. * * * The county road commissioners * * * may pay for the improvement in such bonds at par and accrued interest."

Then follows a provision which, it seems to me, is determinative of the question presented:

"In case any tax shall be returned delinquent, or shall not be paid when such bonds or notes become due, the same shall bepaid by the county, if such county is subject, under theprovisions of this act, to an assessment at large, and otherwise by the township, reimbursement therefor to be made in either case out of the money thereafter to be collected from such delinquent lands."

(The italics are mine.) This is followed by a proviso:

"That such advancement by the county shall not cause the total debt of the county or the county tax rate for highway purposes to exceed the constitutional limitations placed thereon."

It is stipulated in this case that an assessment to pay its percentage of the cost of the improvement was spread upon the county at large. That being so, the statute is mandatory, in the language italicized, that the county shall pay the indebtedness secured by, not only its bonds, but the bonds of the assessment district, the township, and the city if it be assessed at large, and reimburse itself from the money thereafter collected from the taxes spread thereon and returned delinquent. With the wisdom or fairness of this provision we have no concern. I have intentionally omitted reference to the State highway commissioner, as it does not appear that he took any part in the proceedings had.

It follows from what has been said that the county treasurer had no right to withhold moneys in his hands belonging to the township on the claim made by him that the township should account to him for the full amount of the tax spread therein in each year to pay its percentage of the cost of such improvement, and the order directing a writ of mandamus to issue to compel such payment is affirmed. No costs should be allowed.

CLARK, C.J., and McDONALD, POTTER, NORTH, FEAD, WIEST, and BUTZEL, JJ., concurred.