People ex rel. McIntyre v. Auditor General 19 Mich. 13

The People ex rel. Donald McIntyre, Treasurer of the Board of Regents of the State University v. The Auditor General.

Special Tax for the benefit of the University: Construction of Act No. 59 of 1867 and No. 1U of 1869. * An Act of the Legislature of 1867 provided that in that year and each year thereafter, a tas of one-twentieth of a mill should be levied for the benefit of the University. This act was amended in 1869 by act No. 14 which provided for an appropriation in 1869 and each year thereafter, of $15,000' out of the State Treasury for the maintenance of the University, and it *14also provided that the iund accumulated under this act of 1867 should also he paid to the University:

Meld, That the University was entitled to whatever should he collected under the act of 1867.

Heard and decided July 7.

Mandamus.

The petition of Donald McIntyre, Treasurer of the Board of Begents of the University of Michigan, states that under the law of March 15 1867 there was assessed on the taxable property of the State in the year of 1867, one twentieth of a mill on each dollar of said taxable property, which tax amounting to $15,398,30 has been collected and under the law of February 24, 1869, has been paid over to said Treasurer. That as appears by the report of the Auditor General for 1868, a similar tax of one-twentieth of a mill was assessed in the year 1868 under said law of 1867 amounting to $15,398,30. That said tax was- charged with other State taxes over to the several counties of the State. That according to the regular course of business in the collection of State taxes previous to February 24,1869, a large proportion of said tax had been collected and was then in the hands of the Collectors of taxes for the several' cities and townships and of the several County Treasurers. That since said last mentioned date and prior to June 12, 1869, a large proportion of said taxes has been actually paid to the State Treasurer, but he could not state the precise amount. That said Auditor on proper demand had refused to pay over the amount of said tax: claiming that said board was not entitled to it.

The following are the provisions alluded to in the laws of 1867 and 1869.

1867 No. 59. Laws of 1867 p. 85.

“ That there shall be assessed upon the taxable property of this State in .the year 1867, and in each year thereafter, for the use, aid and maintenance of the University of Michigan, the sum of one-twentieth of a mill on each dollar of *15said taxable property assessed and paid into the Treasury of the State, in like manner as other State taxes are by law levied assessed and paid; which tax when collected, shall be paid by the State Treasurer to the treasurer of the Board of Regents of the University in like manner as the interest on the University Fund is paid to said treasurer of said Board.”

1869 No. If Laws of 1869 p. 19: Toole effect February 24, 1869.

“ That there shall be appropriated out of the State Treasury for the year 1869, and for each year thereafter for the aid and maintenance of the University of Michigan the sum of $15,000 to be paid by the State Treasurer to the treasurer of the Board of Regents of the University in like manner as the interest on the University Fund is paid the said treasurer of said Board; and it is also provided that the fund already accumulated under the provisions of Act, No. 59, of the Session latos of 1867, shall in like manner be handed over to the said treasurer of said Board of Regents of the University.”

The respondent claimed that under a proper construe- “ tion of the law of 1869 the Board were not entitled to the proceeds of the tax claimed.

G. L. Wallcer, for relator.

Dwight May, Attorney General, for respondent.

I. By the act of 1867, page 85, the Legislature provided for the raising by tax 1-20 of a mill on each dollar of taxable property in the State, commencing in 1867. It was to be raised and collected and paid into the Treasury the same as other State taxes.

'By the same law then in force the County Treasurers commenced paying in to the State Treasurer March 1, *161868, and the taxes were not all paid in until December 15, 1868.

The proviso to the act prevented the payment of the money until the Regents had established a certain school of medicine.

II. The act of 1869, page 19, is in effect an original act, although it is styled an amendment. It provides for a direct appropriation of $15,000 each year, commencing with 1869, and gives to the University the accrued sum collected under the act of 1867.

Now, if the University is entitled to the sum claimed by the relator, it follows that the University will receive for the year 1869 over $30,000.

It will be borne in mind that no sum was to be paid in 1867 by the act of 1867. The act only provides for the assessment in that year, and the amount assessed is to be paid when collected, and it was not and could not have been collected in that year.

When the demand was made, and even now, under the view of the relator, the second tax under the act of 1867 has not been collected, and hence is not in the Treasury.

This Court will Rot compel the respondent to draw his warrant on a fund not in existence. Nor will the Court compel the respondent to figure up, if he can, the amount which has been' paid into the, Treasury, and draw his warrant on a fraction of the entire sum.