The Owosso times. (Owosso, Mich.) 1897-1926, 1908-12-11

liability upon municipality, consiG-
GRAFTON of the rights and interests of
those most seriously interested must
not be lost sight of. The taxpayer is
entitled to the protection of all con-
In the aggregate he is the public for
whose benefit the municipality exists.
and which bears all the burdens put
upon 1t, but which is not consulted
when such burdens as in this case
are assumed.
In the case at bar, the record
shows that three times the electors
have at special elections refused to
vote to bond the county to pay float
ing Indebtedness, which includes the
amount in suit. Whether this was
done before or after the notes in suit
became due is immaterial. In the
only constitutional way provided
these electors have repudiated the
illegal acts of the officers of the
county. If this court should under
take to say that this indebtedness ad-
mittedly illegal must be paid by this
county, 1t will practically declare the
restrictions above mentioned to be
imperative, and subject the treasur-
les of all the municipalities of this
state to the rapacity of designing and
dishonest officials, leaving no pro-
lection whatever against reckless
ness, extravaganza, crime and bank
ruptcy. Such holding would be con-
trary to- the spirit of previous deci-
sions of this court, and against pub
lie policy. There is line of author
titles, Federal and State, including
Michigan case, (Thomas v. City of
Port Huron), which are relied upon
by the trial court as warranting a re-
covery which we think can be dis
tinguished from the case at bar. The
case of Thomas ". Port Huron, 81
Mich. 500, does not decide the ques-
tion in this case. What was said is
admitted to be dictum. The question
before us was not passed upon. The
case was held to be controlled by
People v. Salem, 20 Mich. 452, and
People v. State Treasurer, 23 Mich.
400. The court refused to apply the
doctrine of implied liability, as also
it did later in Highway Commission
err v. VanDuesen, 40 Mich. 429. In
all these cases, except Michigan, the
thing done had been to a certain ,ex-
tent authorized; or something had
been sold, or property was exchanged
by the municipality.
In the case at bar an ordinary loan
of money was made to the county.
1t was without any authority of law.
OF the illegality of the transaction
and the disability of defendant, the
plaintiff is presumed to have had
knowledge. There is nothing in the
transaction which amounts to con-
version of property, or a holding out
Of something for sale of implied val
ue, or any conduct amounting to ac-
tual or constructive fraud, deceit or
Misrepresentation.
Our conclusion, therefore, is that
the court was in error in holding as
conclusion of law defendant under
the equitable count was liable for
money had and received.
The facts in this case do not in
to deny relief; nor is this a case
where the general law independent
of the special contracts imposes an
obligation to do justice, and it
would clearly be against public pol
icy to allow a recovery.
This conclusion is in harmony with
former decisions Of this court: See
Bogart v. Lamotte Township, 70
Mich. 294.
Splitter v. Village of Blanchard,
so Mich. 234.
Affeld v. City of Detroit, 112
Mich. $50.
McBain v. Grand Rapids. supra.
Mackey v. Township of Columbus,
supra.
Also Detroit v. Mich. Paving Co.,
SO Mich. 1886.
Detroit v. Robinson, 3S Mich. 10S.
The first and third contention OF
plaintiff need not be considered.
The judgment is reversed and no
new trial granted.
Grant c. ]. and Blair and Moore J..
J. concurred.