Dawson v. Township of Aurelius

Cooley, J.

This is an action of assumpsit to recover the amount of a drain tax, which plaintiff had paid to the township treasurer under protest, and which the treasurer had subsequently paid out on the order of the township board. The proceedings in laying out the drain were found to be illegal, by reason of the failure of the drain commissi oner, to comply with' certain provisions of the statute, and the ground •of recovery relied upon is that the township has received the plaintiff’s money without right, and lias appropriated it to the use of others without authority of law.

On the finding of facts the case must turn on the question whether the township can be deemed to have received the plaintiff’s money. If it has, it must account for it; if not, there is no claim against it. And it is very clear, we think, that under the statute the township never receives the money levied for drain taxes, and never becomes accountable for it.

Township drain commissioners are elected in the townships, but they have their independent duties to perform, in respect to which they neither are under the control of the township nor is the township as such in any manner concerned. The laying out of drains is commonly a matter of mere neighborhood interest; they affect small bodies of land; the taxes laid are local assessments, and do not and cannot under the statute become a general charge. In the performance of his duties, the commissioner is in no sense the agent of the township, and there is no township responsibility for his defaults or misconduct.

It is true these local levies are collected by the township *481 treasurer aud “ received into the township treasury; ” Pub. Acts 1875, p. 173, § 10 ; but they are not received- for the township, and do not at any time become a part of the township moneys. In the treasurer’s hands they are a specified fund ; collected as such and held by him to be paid out •on orders drawn on that fund in favor of the persons found to have claims upon it. The determination of these claims is made by the drain commissioner, and the township board draw orders on his determination, but exercise in respect to it no independent discretion of their own, and are under no ■obligation to look beyond the commissioner’s report. Ibid, p. 175, § 18. But in (hrawing these orders the officers are not the agents of the tmvn. The matter, as already stated, is not a town matter, but a mere neighborhood concern. For convenience and to avoid a multiplicity of officers, certain' township officers are charged with duties in connection with it; but this is a mere matter of administration; it does not change the nature of the proceeding, and it certainly ■does not clothe the officers in what they do with a township agency, for the very manifest reason that the township is not in any sense, as regards the duties performed by them, a principal.

The moneys sued for in this case were paid out to the persons shown by the commissioner’s report to be entitled to them. The township has therefore never misappropriated them, and the injustice of calling upon the township to respond for them is manifest. *

The judgment must be reversed with costs and a new trial •ordered.

The other Justices concurred.