Wisner v. Davenport

Martin Ch. J.: The first charge of the Court below was clearly wrong. This precise question was decided in Tweed vs. Metcalf, 4 Mich. 579. The second charge was also erroneous, in holding that the township board had no power to raise money for township purposes without a vote of the people. Sec. 40 of Chap. 1, Title IY. of Revised Statutes of 1838 (p. 64) provides that the township board shall audit and settle all claims against the township; and the allowance of any sum on account of such claims, as well as any sum directed by vote of the township meeting to be raised -for township purposes, shall be considered proper township charges, and shall be raised on the taxable property of the township, in the manner provided by law. ‘ Sec. 13, of Chap. 2, Title V. (p. 82) requires -the township clerk to deliver to the commissioners a statement of the amount to be raised in the township for township purposes, and for the purpose of defraying township charges and incidental expenses, as well as that voted for specific purposes; and Secs. 3 and 5 of the next chapter (p. 84) define the manner in which such sums shall be raised. These sections together, evidently contemplate that the township board has authority to raise money, independently of any vote of the electors, for the purpose of paying the claims audited and allowed against the township. [504] The subsequent part of the second charge is correct— the board having no authority to raise any money except to defray such charges; but as this part of the charge was evidently made to hinge upon the former, which was made the imperative guide of the jury, it could not have been taken into consideration by them in making up their verdict. This char-ge was, therefore, taken together, all erroneous. The third charge is disposed of by Clark vs. Mowyer, just decided. The fourth charge was incorrect, because, based upon the former erroneous charges. In the form of the charge, however, under the circumstances, we see no error. Where there is a conflict of evidence, and the jury, by weighing it, are to find facts, it is the duty of the Court, in instructing the jury, to charge hypothetically; that is, to propound the law, and direct its application to the facts as they may be found; but where the fact is admitted, or undisputed, and there is no conflict of evidence, the question is one of law, upon which direct instruction ought to be given. There is no reason, nor authority, for requiring a Court to throw doubt on a certainty in charging a jury; for this would tend to mislead and confuse, rather than to instruct, and multiply what are called the uncertainties of the law. For these reasons, the judgment of the Court below should be reversed with costs, and a new trial granted. The other Justices concurred.