
    Edwin Byles v. Township of Golden.
    
      Question, of fact — Mandamus—Town taxes.
    
    1. A question of fact is not to be submitted to a jury if there is no evf dence bearing on it. '
    2. Mandamus is not the proper remedy for compelling a township to refund the amount of a tax unlawfully levied if there is any issue involved which should go to the jury.
    3. ' The township treasurer, in Michigan, is an officer and agent of the township in collecting such taxes as would be retained in the township treasury after paying to the county treasurer the State and county taxes; and the township is liable to one who has been wrongfully taxed for the amount received from him even though it has been paid out from the township treasury on orders from the-proper school and highway authorities.
    4 Township orders received in the township treasury as money are equivalent to money, and must be accounted for in the same way.
    
      Error to Oceana. (Russell, J.)
    Jan. 23.
    Feb. 8.
    Assumpsit. Plaintiff brings error.
    Reversed
    
      Fletcher <& Wcmby for appellant
    
      L. G. Rutherford for appellee.
    Quasi municipal corporations are not responsible for the acts of officers who, for the State’s convenience, are chosen within its geographical limits: People v. Van Keuren 74 N. Y. 310; Highway Comr’s v. Martin 4 Mich. 557; Leoni v. Taylor 20 Mich. 152; Hart v. Oceana County 44 Mich. 417; Waltham v. Kemper 55 Ill. 346.
   Cooley, C. J.

Plaintiff sues the township to recover the amount received by its treasurer on a sale of his property to satisfy a tax assessed against him, and for which he insists he was not liable. He was. not a resident of the township, but had property within it, for which, under certain ■circumstances, he might be there taxable. The circuit judge in submitting the case to the jury told them there was no evidence tending to show that the plaintiff was liable to taxation in the township. Nevertheless he seems to have submitted the question of his liability to them as one ■of fact, and they found for the defendant. This was error, .and requires a reversal of the judgment.

The point is made for the defense that, if plaintiff was not liable to taxation, mandamus is his proper remedy; the amount of the liability being determined by the law itself when the question of fact is determined. But the ■question of fact is not one which can be conveniently tried on mandamus. It will usually involve disputed questions of residence and business, which would render an issue for a jury necessary, and it is therefore more proper that the party should take his controversy immediately to the court ■of original jurisdiction instead of bringing it first to this Court that we may send it there. Besides, the duty of the defendant to satisfy the plaintiff’s demand does not arise upon contract, but from the seizure and sale of his property, and the case differs radically in that particular from Dayton v. Rounds 27 Mich. 82, and the cases following it,, upon which the argument for defendant is based.

The principal questions are, whether the township is liable at all, and if so, for what taxes. It is contended for the defendant that the township treasurer in collecting and paying over taxes is not the agent of the township, but is only an officer whom the electors of the township are required by State law to elect for the performance of certain duties, in some of which the township is concerned, while others concern the State, the county or other municipalities.. This seems to be the view held under the statutes of New York, where it is said the town as such has no treasury,, and the tax collector, after paying over specified sums of money collected to the supervisor, commissioners of highways, superintendent of schools and. overseers of the poor,, pays the residue to the county treasurer. Lorillard v. Monroe 11 N. Y. 392. But the township system in this State is considerably different. We have a township treasury, People v. Bringard 39 Mich. 22, and the township, treasurer, after collecting the taxes, retains in it all except the State and county taxes until orders are presented upon which he may lawfully pay them out. [How. St. § 103S.} The State and county taxes he pays over to the county treasurer. Ibid. The New York cases have therefore no. application.

It was not claimed in this case that the township was liable for the amount of the State and county taxes received by the treasurer, but it is insisted that for all moneys which were to be retained in the township treasury it was liable. This would include school and highway taxes, which the treasurer pays out on orders from the proper school and highway authorities, and which, it appears in this case, he had paid out before the suit was instituted. There is an apparent hardship in holding the township liable for moneys thus paid over; but on the other hand when the plaintiff traces his moneys to the treasury of the township it would seem plain that a right had accrued in his favor which could, not be discharged by subsequent action of the township authorities to which he was in no sense a party. The defendant has received his money and must account to him for it; not to any one else.

It appeared in the case that a portion of the treasurer’s collections was made in township orders ; but that was of no importance. The orders were received at the township treasury as money and were the equivalent of money to the township.

The judgment must be reversed and a new trial ordered.

The other Justices concurred.  