Bay City Dredge Works v. Fox , 245 Mich. 523 ( 1929 )

Plaintiff holds drain orders, issued by the drain commissioner for Bay county, in the matter of constructing Pinconning and Indian Town drains. April 25, 1927, the drain fund being deficient, plaintiff demanded payment out of moneys in the general fund in the county treasury, basing right thereto under Act No. 316, Pub. Acts 1923, chap. 9, § 4, as amended by Act No. 365, Public Acts 1925, and reading as follows:

"The holder of such order may if he so desires have the right to require payment thereof out of any moneys in the general fund of the county treasury that may be available."

The county clerk refused to draw orders on the treasury, and the treasurer refused to make payment out of the general fund of the county. In the circuit court plaintiff was refused a peremptory writ of mandamus directing the clerk to draw orders and the treasurer to make payment. Plaintiff reviews by certiorari, claiming right to be paid out of any money in the general fund. Such contention ignores the condition that money must not only be in the treasury, but as well be available for payment of drain orders.

In response to an order to show cause in the circuit, the clerk and treasurer set up the fact that, on the day plaintiff made demand, there was but $35,827.63 in the general fund, and that sum was $54,770.60 short of the amount necessary to meet the current county expenses for the year 1927. The fund then in the treasury was not sufficient to meet the salaries of county officers for the balance of the year 1927. This showing of deficit was unquestioned, and the circuit judge held that the money in the general fund, being insufficient to meet current expenses of the county for the year, was not available for payment of the drain orders. If the circuit judge was right in point of law in so deciding we need not consider other questions urged in support of his denial of the writ of mandamus.

The statute places a limitation upon the right to have payment, contemplates there may be moneys in the treasury not to be so used, for it confines payment out of funds usable for such purpose. The term "available" is employed in the statute in its sense of usable. The statute does not grant plaintiff right of recourse to any and all moneys in the treasury, but limits resort to such only as are available for the payment of drain orders. The moneys in the treasury, raised by taxation to meet ordinary current county expenses, and needed for such purpose, are set apart to such use and are not usable to pay drain orders. If moneys in the county treasury are insufficient in amount to meet ordinary current expenses then there is no money available for the payment of drain orders. It was not intended that the county borrow money to pay drain orders; neither was it intended that money on hand to meet ordinary current county expenses be used to pay drain orders and the county be left to borrow money to meet the deficit.

The drain orders here involved are not obligations of the county to be met by tax levy, neither may moneys in the treasury, raised by tax for ordinary county expenses, be used to pay drain orders to the depletion of county funds below need for ordinary current county expenses. The condition that moneys in the treasury be available was fixed advisedly and must be accorded its protective purpose. The term "available" is employed in a restrictive sense and opens the fund for the purpose of drain orders only in case the moneys on hand are capable of use for such purpose, and this requires consideration of the nature and extent of the fund and present and prospective demands upon the same for ordinary current county expenses.

The record discloses that the moneys in the fund are not capable of being used to accomplish the purpose sought by plaintiff. The statute states and intends that drain orders be paid out of any moneys in the general fund of the county treasury that may be available, and that means out of moneys capable of use for such purpose, and does not mean payment out of any moneys in the treasury whatsoever, regardless of ordinary current county needs and expenses.

The ruling in the circuit court is affirmed, with costs against plaintiff.

FEAD, FELLOWS, CLARK, and POTTER, JJ., concurred with WIEST, J.