The Owosso times. (Owosso, Mich.) 1897-1926, 1908-02-21

erection was open to the board, and II
had repeatedly acknowledged, fixed
and determined the amount of the
county's Indebtedness to the plaintiff
The law does not require the per-
Torrance of an idle ceremony where
substantial rights are in no way af-
fected. The county either owed the
plaintiff the full amount of his claim
or it owed him nothing; the board
had already determined that 1t owed
the claim, and when the debt had ma
tured and demand was made and pay
ment refused. for any reason, plain
tiff had right to sue and have the
question of the county's liability jul
dicially determined.
The right to bring an action in
assumsit declaring on the common
counts by an individual against a
county is sustained in:
Weston VS.. County of Luce, 102
Mich. 52S, and cases cited:
Mandamus is not the proper rem
edy where an action at law will lie.
Board of Supervisors VS.. Board of
Supervisors, Ill Mich. los and cases
cited.
Officers Supposed to be Honest.
While it is conceded that the coun-
ty of SMawassee received into its
treasury ten thousand dollars of the
its contingent fund, yet it is claimed,
that in no event can he recover, not
having shown that the money was &C
tually paid out for the legitimate ex-
penses of the county. l think 1t is a
sufficient answer to this claim to sug-
gest that the law presumes that all
public officers are honest and act
within, and do their duty, under the
law; and the money having been
shown to have reached the contingent
fund of the county, the law presumes
that it was used for proper pur-
poses, or is still on hand. If the de-
PENDANT seeks to set up the defense
(if such would in fact be a defense)
that the money was improperly with
drawn and the county had no benefit
PENDANT to show such fact.
Scott VS.. Detroit, etc., lessee, 1
Douglas 119 $50.
Peck VS.. Covell 16 Mich. 9.
Hall VS.. Kellog 16 Mich. 1876.
Downing VS.. Rugar 21 Wend. IT'S,
1874.
Our supreme court has held ga
board of supervisors has no power
under How. Stat. Sec. 4S3, Subd. z
and 10, to borrow the money neces-
and charges of the county, but the
same must be raised by taxation"
Supervisors of Dickinson County
VS.. George Warren, 9S Mich. 144
Plaintiffs counsel contends that
the supreme courts attention was
not called to sections 2441 or 24S4,
subd. 16, Com. Laws; and that had
the court considered these sections
and section 2493 Gas to the\ use of
the word "Raise") they would have
necessarily reached a different con-
clugion.
Notes Not Good as Contracts.
While the case above cited was a
mandamus proceeding brought to
compel the chairman of the board of
supervisors to execute bonds to con-
summate loan for the purpose of
raising money for current expenses,
and was not such case as that at
bar where a party's money has ac-
tually been appropriated to the uses
of the county, both parties acting in
good faith; yet the case covers the
broad ground above stated, and I am
not prepared to say that a consider
alton of the sections mentioned
would have necessarily caused it to
reach a different conslusion. I am
therefore constrained to hold that in
so far as plaintiffs right to recover
rests upon the special contracts (the
two notes) such contracts are void
and no recovery can be had upon
them.
May recovery be had under the
count for money had and received by
defendant for the use of the plain
tiff?
can action for money had and re-
ceived is an equitable action, and can
be maintained in all cases for money
which in equity and good conscience
belongs to the plaintiff, 1t has been
much extended in modern times, and
is founded solely upon the equitable
rights of the parties
Beardsley VS.. Horton. 3 Mich. $50.
Moore VS.. Mandlebaum, s Mich.
434.
Atkinson VS.. Scott, SO Mich. IS.
Walker VS.. Conant, 65 Mich. 1914.
'The obligation to do justice rests
upon all persons. natural and arti-
fetal, and If a county obtains the
money or property of others without
authority, the law, independent Of
any statute. will compel restitution
or compensation"
Marsh VS.. Fulton County, 10 Wall
676, 6S4.
An Opinion i'm Point.
The city of Port Huron under the
provisions of a statute authorizing it
so to do, issued bond to a railroad
company and took the railroad COM
panys bond in exchange therefor;