City of Lansing v. Wood

23 N.W. 769, 57 Mich. 201, 1885 Mich. LEXIS 767

• Court: Michigan Supreme Court
• Decided: June 10, 1885
• Status: Published

Opinions

Champlin, J.

I am of opinion .that a new trial should be awarded in this case, for the reasons following:

1. Ms to the moneys claimed by the city, other thorn, moneys belonging to the school fund. The declaration is upon an official bond given' by Wood, as city treasurer of the city of Lansing. The only breach alleged, under which a recovery can be had under the evidence, is the failure to pay over to his successor in office the money remaining in his hands as such treasurer.

Section 11 of title 4 of the charter of the city of Lansing, in addition to the powers especially conferred upon them thereby, confers upon the common council the power of management and control of the finances, rights and interests, buildings and all property, real and personal, belonging to the city. Local Acts 1875, p. 167. Section 29 makes it the duty of the common council to audit and settle with the city treasurer on the last Tuesday of April. Section 14 of title 5 (p. 179) makes it the duty of the treasurer to exhibit to the common council, at the last regular meeting in April, his account, and the state of the treasury, which account shall be referred to a committee for examination; and, if found correct, it shall be filed and published.

This account was exhibited by defendant Wood, and was referred to a committee, who reported to the council that they found it correct. The same day Wood turned over to his successor in office certain certificates of deposit, which his successor received as a payment of the city funds to him. It is claimed that he had no authority to receive such certificates as payments, and that he is liable nevertheless to the city as for a breach of his bond. The defense offered testimony tending to show that the act of Wood in delivering to his successor, and the act of his successor in receiving such certificates as money, was ratified by the common council. This testimony was rejected by the court.

I think it was competent to show ratification by the common council, in view of the extensive powers the charter clothes them with over the finances and property of the city. In my opinion it was error to exclude the testimony offered tending to prove ratification.

2. As to the school moneys. The charter provides that the treasurer of the city shall collect the money, and keep all school funds belonging to the city separate from all other funds, and he shall pay over to the treasurer of the school board all moneys on the order of said board. Sec. I, tit. 15. The law also provides that the school board shall hold and control all moneys, etc., belonging to the school district. The law does not specify by whom the order on the-treasurer shall be signed, but it provides that the board shall elect a ’ president, clerk, and treasurer. They shall keep a record of their proceedings, which shall be signed by the president and clerk. Doubtless money drawn from the city treasurer to be paid to the treasurer of the' board would require a vote of the board; and a written order, in pursuance thereof, signed by its president, would be sufficient.

Now the plaintiff claims that before the expiration of the term of office for which Wood was elected, he had in his hands belonging to the school fund $12,000 that he has never paid over to the treasurer of the school board on th.e order of that board, nor has he paid it to his successor in office. Defendants claim that prior to the expiration of his term lie-paid to the treasurer of the board, at his request, $12,000, in certificates of deposit on the banking house of E. Angelí, and took the treasurer’s receipt, which he turned over to, and which was accepted by, the committee of the council, who-settled with him on that basis.

It is clear to my mind that the charter makes the city, by its treasurer, simply a custodian of the school fund for the benefit of the board of education. The law directs this-fund to be kept separate from the other funds, and does not make it subject to be drawn by warrant by the city authorities. It is not subject to their control in any respect. The-treasurer is chargeable with it, and is liable on his bond if he fails to pay it over on the order of the board, or to his successor. The vital question here is whether he has paid it over to the treasurer of the board so as to exonerate him from liability on his bond to the city. I agree with my brother Campbell that a payment to the treasurer of the school board on his request, without an order of the school board, does not exonerate him from liability. But I think a subsequent ratification by the board of the transfer is equally good as an order originally given.

I reserve my opinion upon the other questions involved. Upon those I have mentioned I think the circuit judge erred in not submitting them to the jury, and I therefore concur with the .Chief Justice in the result he has reached.