The opinion
On Rehearing;
(February 5, 1894.)
SEVERENS, District Judge.
In support of this application, four reasons are assigned by the petitioner:
First. It is suggested that' the opinion of the court, as announced in regard to the original organization of Presque Isle county, proceeds upon the theory that the later organization in 1875 continued the previous one, whereas, it is urged, the people of the county, from the first, treated the act of 1871 as invalid, and the legislature, by the act of 1875, recognized the invalidity of the former act. The only action of the people of the county, wrhich is referred to as being in repudiation of the original organization, consists of their applications to the board of supervisors of Alpena county in .July, 1871, first for the annexation of territory to the township of Rogers, and second, for the formation of Presque Isle township, upon both of which applications the latter board took favorable action, to which no objection was made, but, on the contrary, it was acquiesced in. As to this, it is to be observed that we were of opinion that the act of 1871 provided for an organization thereafter to take place, the consequence of which was to leave the county of Presque Isle in its existing governmental relations with the county of Alpena until such organization should be effected. It was entirely consistent with this that, if the organization of the new county had not then been had, the people thereof should have made these applications to the Alpena county board, and that the board should have acted upon them, as it did. Indeed, it may be that these applications were made for the very purpose of qualifying the county to organize under the act.
In regard to the supposed disregard of the previous organization under the act of 1871 by the legislature in 1875, we do not think it •necessary to repeat what was said in the former opinion. What was then said was aimed, not so much to demonstrate that the legislature affirmatively recognized the organization already made as a valid one, as to show that in our judgment there was no good reason for treating the later act as a repudiation of what had been done by the county, and further to express our opinion that rights which had in the mean time become vested could not, at all events, be defeated by this legislative action, however construed.
Second. It is said that the decision already made is in irreconci *70 lable conflict with the decision of the supreme court in Norton v. Shelby Co., 118 U. S. 425 , 6 Sup. Ct. 1121. Having already fully considered that case, and, as we think, shown the distinction between it and this, we do not think it necessary to go over the ground again. All the cases and reasons mentioned by the petitioner on this head were presented by the brief and arguments on the original hearing, and have been carefully considered by' the court.
Third. The reason next assigned why a rehearing should be had is that the holding of the 'court “that because the bonds were issued to refund a debt, and not to raise money to erect public buildings, no vote of the people was necessary,” is based in part upon the fact that the board of supervisors has sole power to pass upon claims against the county. This, it is said, is in direct conflict with the recent decision of the supreme court of Michigan in Supervisors v. Warren, 56 N. W. 1111 . In passing, we observe that the petitioner’s statement of our own opinion is rather broader than our language warrants. But if it be restricted to the proposition that, in the exercise of the authority conferred by the act of 1885 upon the board of supervisors to issue the new bonds, it was, by necessary implication, empowered to determine the validity of the refunded debt, we accept it as correct.
We have attentively examined the late decision of the supreme court of Michigan, above referred to, but are quite unable to find in it the alleged conflict with our own. In that case the court was asked to compel, by mandamus, the chairman of the board of supervisors to issue bonds to the amount of $30,000 to raise money for the support of the poor of the county, which bonds had been voted by the board without a popular vote. The object for which the money was to be raised on the bonds was one involved in, and covered by, the current expenses of the county. There was not, as here, any special act of the legislature authorizing such action of the board as had been taken, and the question of its authority depended upon the construction of the general statute which confers its powers. Judge McGrath, delivering the opinion of the court, after analyzing the subdivisions of the section of the- statute which authorize the expenditure of county funds by the board for various purposes, and prescribe the means by which such funds may be- raised, — whether by borrowing or by taxation, — points out that-by subdivision 10, § 483, How. St., provision is expressly made for the raising of money for the current and contingent expenses of the county. And it was held that as this subdivision had no meaning or effect, unless it was construed as contemplating the raising of money for that particular class of expenses by tax only, it must be construed as having that effect, and to exclude the power to raise money for current expenses by borrowing which for other purposes was conferred by other provisions in the section, and the mandamus was therefore denied.
■ No question of the kind involved in this ground for rehearing was involved in, or decided in, that case. To the further suggestion that it would follow from the decision delivered by this court *71 that the hoard of supervisors might audit fraudulent claims, and issue bonds for them, and the county be remediless, it may he answered that responsibility of this kind must be devolved upon somebody, and it would seem that the interests of the county would be as likely to be safely guarded by their own representatives as by any other protection.
. Lastly. It is claimed that the) court made a mistake in remitting to the circuit court the question whether the suit was collusively brought, and it is alleged that our action is in conflict with the decisions of the supreme court of the United States, and the same cases in the reports of that court are cited in support of this contention, as were discussed in the brief and argument upon the former hearing. We have carefully considered them, and do not think it probable that any new light would be afforded by further discussion. It may be proper to add a few words to what we said upon this subject. We indicated our opinion to be that the duty of passing upon‘a question of this sort was devolved by the statute, in the first instance, upon the trial court, but that, nevertheless, the appellate court, in a clear case, would take notice of the fact, and would remand the case, with directions to dismiss it. But the court would deal with such a question as it does, on writ of error, with any other question of fact; that is to say, proof of the fact must be clear and unequivocal, in order to justify the court, upon a writ of error, in assuming the fact to be so. Such was the case in every instance which has been brought to our attention. It either appeared from the record itself, or was conclusively shown by the proof brought up in the bill of exceptions. In this case, as is implied from our opinion, we did not think the proof so clear as to justify such action in the appellate court.
The court below, when the question was before it upon the trial, failed to pass upon it expressly. As we were constrained to order a new trial upon the merits, and the question would be in its former position, where it could be dealt with in the court where questions of fact which are fairly controvertible are properly to be determined, we remitted the whole case to be tried and determined de novo. Upon reflection, we are satisfied that this was correct.
We think the petition for rehearing should be denied.