Second National Bank v. City of Lansing

Circuit Court of the 30th Circuit of Michigan

Second National Bank v. City of Lansing

1 Mich. N.P. 181

CourtCircuit Court of the 30th Circuit of Michigan

DecidedApril 15, 1870

StatusPublished

This text of 1 Mich. N.P. 181 (Second National Bank v. City of Lansing) is published on Counsel Stack Legal Research, covering Circuit Court of the 30th Circuit of Michigan primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Second National Bank v. City of Lansing, 1 Mich. N.P. 181 (Mich. Super. Ct. 1870).

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Opinion

By the Court,

Higbi, J.

The following are my conclusions in this case:

1st. That the City order or instrument declared on is not a negotiable bill of exchange, or a negotiable promissory note, it being payable out of a special and designated fund, and that it therefore is liable in the hands of the present plaintiff to all equities between the original parties. 1st Parsons On Notes and Bills, page 43 and note (o)

2nd. That such order, being payable out of a specific fund to be collected by assessment upon & portion only of the houses [183]*183and lands within the City, does not create an indebtedness and is not evidence of an indebtedness against the City at large, and therefore that this action cannot be maintained.

The territory (houses and lands) designated, became charge able with such expense, and the property within the City, but utside of that so designated as being benefited was not to be, and cannot legally be burdened, with the expense.

It was understood by the contractor that he was to be paid from the special fund, — the contract itself so provides. And the money or fund against which these orders were drawn when assessed and collected could not rightfully be used by the City authorities for any other purpose. And when collected and paid to the City Treasurer, if it should be appropriated to any other use, or if payment of the orders should be refused, the City itself would be liable as for money had and received to the,plaintiffs use. McCullock vs. The Mayor &c. of Brooklyn, 23 Wend, 438. — Lake vs. The Trustees of Williamsburgh 4 Denio, 520. See also the eases of Beard vs. Brooklyn, and Richardson vs. Brooklyn in 31 Barbour, which hold that, as an action cannot be maintained upon the contract, an action on the case for negligence may be maintained, if the Common Council unreasonably neglect or refuse to make and cause to be collected, the special assessment. I can hardly see upon what principle this can be so held. It is indirectly compelling the inhabitants of the City to pay a debt for which they are not liable.

It seems to me that the plaintiff's remedy, in ease of neglect, is by application for a mandamus to compel the necessary action by the Common Council and there are many authorities to this effect. But that question is not at issue in this case, for the disposal of which it is sufficient that an action of assumpsit upon the contract cannot be maintained against the City.

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By the Court,

Higbi, J.

The following are my conclusions in this case:

1st. That the City order or instrument declared on is not a negotiable bill of exchange, or a negotiable promissory note, it being payable out of a special and designated fund, and that it therefore is liable in the hands of the present plaintiff to all equities between the original parties. 1st Parsons On Notes and Bills, page 43 and note (o)

2nd. That such order, being payable out of a specific fund to be collected by assessment upon & portion only of the houses [183]*183and lands within the City, does not create an indebtedness and is not evidence of an indebtedness against the City at large, and therefore that this action cannot be maintained.

The territory (houses and lands) designated, became charge able with such expense, and the property within the City, but utside of that so designated as being benefited was not to be, and cannot legally be burdened, with the expense.

It was understood by the contractor that he was to be paid from the special fund, — the contract itself so provides. And the money or fund against which these orders were drawn when assessed and collected could not rightfully be used by the City authorities for any other purpose. And when collected and paid to the City Treasurer, if it should be appropriated to any other use, or if payment of the orders should be refused, the City itself would be liable as for money had and received to the,plaintiffs use. McCullock vs. The Mayor &c. of Brooklyn, 23 Wend, 438. — Lake vs. The Trustees of Williamsburgh 4 Denio, 520. See also the eases of Beard vs. Brooklyn, and Richardson vs. Brooklyn in 31 Barbour, which hold that, as an action cannot be maintained upon the contract, an action on the case for negligence may be maintained, if the Common Council unreasonably neglect or refuse to make and cause to be collected, the special assessment. I can hardly see upon what principle this can be so held. It is indirectly compelling the inhabitants of the City to pay a debt for which they are not liable.

It seems to me that the plaintiff's remedy, in ease of neglect, is by application for a mandamus to compel the necessary action by the Common Council and there are many authorities to this effect. But that question is not at issue in this case, for the disposal of which it is sufficient that an action of assumpsit upon the contract cannot be maintained against the City.

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Bluebook (online)

1 Mich. N.P. 181, Counsel Stack Legal Research, https://law.counselstack.com/opinion/second-national-bank-v-city-of-lansing-micirct30-1870.

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