No question was raised, either in the court below or in this court, as to the propriety of the remedy by mandamus; counsel and the circuit bench doubtless considering the question settled by the case of Elliott v. City of Detroit, 121 Mich. 611 (84 N. W. 820). At the request of this court, briefs have been filed by counsel for the respective parties, which briefs concur in the view that mandamus is the proper remedy. Undoubtedly, the general rule is that the function of mandamus is to compel action, and not to restrain action. Nevertheless, this court, in the Elliott Case, above referred to, affirmed the order of the circuit bench issuing a writ of mandamus commanding the city of Detroit to desist and refrain from proceeding further to publish certain notices, etc., relative to the holding of an election. It was contended "that the court has no jurisdiction in the matter by way of mandamus, that mandamus is not the proper remedy," etc. The question was, therefore, squarely presented to this court, whether mandamus was the proper remedy to restrain action by the city, and whether the circuit court had any jurisdiction by way of mandamus to restrain the contemplated action. The case is on all fours with the instant case as to the facts, the character of the legal questions involved, and the necessity of prompt action. Unless, therefore, we are to overrule the case, it determines this as to the question of remedy. I am in favor of confining the application of the Elliott Case to precisely similar cases where there exists a public exigency and constitutional questions are involved; but I am decidedly opposed to overruling it. In my opinion, it is a wholesome rule, as applied to a case like the present, which affects the constitutionality of the general statute for the incorporation of the cities of the State, under which many municipalities have taken, are taking, or are about taking, action.

The order denying the writ is overruled, and the writ granted.

OSTRANDER, C. J., and McALVAY, J., concurred with BLAIR, J.

MOMANUS v. CITY OF PETOSKEY.

1. INJUNCTION - MUNICIPAL CORPORATIONS - MISUSE OF FUNDS JURISDICTION OF EQUITY.

A taxpayer may, by bill in equity, restrain a threatened misuse of city funds in two classes of cases; where his interest in the fund or threatened damage to his property interests by its misuse amounts to $100; where he has land worth $100 which is threatened with sale, or liable to a lien for a tax, in consequence of the proposed misuse. 1 Comp. Laws, § 435.

2. SAME AMOUNT IN CONTROVERSY.

The fact that the municipality intends to use money on hand improperly, so that taxation must be increased by a corresponding amount, is sufficient to confer jurisdiction, if the amount in controversy is within the jurisdiction of chancery.

3. APPEAL AND ERROR-DEMURRER-REVIEW.

After the overruling of a demurrer to the sufficiency of a bill of complaint, and the filing of an answer to the bill, the pleading is not open to objection on appeal.

4. EQUITY-PLEADING-CROSS-BILL-RELIEF.

Defendant who has not filed a cross-bill or asked affirmative relief in its answer is, at most, entitled to the dismissal of the bill.

5. MUNICIPAL CORPORATIONS PRIVATE ENTERPRISE-CONTRACTS --VALIDITY.

Under provisions of a lease by a city to a manufacturing corporation providing for the payment to the company of a sum of money, deposited in escrow, on the completion of a building upon the city's property, the lessee is only entitled to the fund upon performance, and the construction of a building not upon the property leased is not a sufficient compliance with the contract.

6. SAME-MISUSE OF FUNDS-POWERS OF COMMON COUNCIL. Injunction will issue to prevent the payment of money in furtherance of a private enterprise, under contract made by the council of a city.

Appeal from Emmet; Shepherd, J. Submitted October 19, 1910. (Docket No. 89.) Decided February 1,

Bill by William L. McManus, Derk De Ruiter, Reuben G. Porter, and William J. Jarman against the city of Petoskey, John J. Reycraft, mayor of said city, other officers and aldermen, and the Petoskey Block and Manufacturing Company, to restrain the threatened misuse of municipal funds. From a decree for complainants, defendant company appeals. Affirmed.

E. E. Gilbert, for complainants.

W. S. Mesick, for defendant company.

HOOKER, J. The complainants' bill alleges that they are owners of real estate and taxpayers in the city of Petoskey, and reside in Emmet county, in which said city is located; that said city is owner of $5,000, in the hands of one Curtis, and has authorized, through its council, the payment of the same to a corporation, which, for convenience, we will call the Block Company; that such payment is to be for an unlawful purpose. An injunction was prayed. A demurrer was filed; three of the grounds stated being:

"First. That said bill of complaint does not state such facts as entitle complainants to institute and maintain a cause of action in a court of equity, or to any relief therein.

"Second. That the interests of complainants in the subject-matter are not sufficient to entitle them to maintain their said bill of complaint, as the said bill nowhere shows, by direct allegation nor by inference from the facts stated, that severally nor combined they are interested to the amount of one hundred dollars.

"Third. That the bill of complaint is not sufficient to confer jurisdiction upon the court, because it in no way shows that complainants are interested to the amount of one hundred dollars, and that none of them shows definitely that any wrong has been done him that equity should redress."

The demurrer was overruled, and the defendants answered with the exception of Curtis, whose default was entered. A temporary injunction was allowed, and made perpetual on the hearing, and Curtis was commanded to

pay $5,000 into the city treasury. The Block Company only has appealed.

The facts necessary to an understanding of the case may be briefly stated as follows: The board of trade of Petoskey had title to the land involved in this case, and owned one of the buildings upon it. It may have owned other buildings, but that is perhaps unimportant. The property was occupied by the Climax Dish Company for manufacturing purposes. The Block Company purchased certain buildings-presumably not including the building owned by the board of trade-from the Climax Dish Company. The Block Company then took a lease of the premises owned by the board of trade for five years, with the right of a further term of five years, at an annual rental of $1, and agreed to keep the building-i. e., the main factcry building-insured against fire for the benefit of the board of trade. It was leased and rented for use as a factory (date of lease January 12, 1905), and was so occupied from that time forward. On June 11, 1907, the board of trade deeded the premises to the city of Petoskey, excepting and reserving all buildings erected by the Climax Dish Company and the Block Company, the same being then the property of the Block Company, receiving therefor from the city the sum of $1,950, paid under the authority of Act No. 529, Local Acts 1907. Apparently the main building was not one reserved. Afterwards that building burned, and thereupon, acting under and by authority of the common council, the mayor and city clerk executed a lease and contract with the Block Company for the period of 50 years, upon an annual rental of $1, and the condition of continued occupancy for manufacturing purposes. It also provided that the city should deposit with Curtis in escrow the proceeds of the insurance policies held by the city upon the building destroyed by fire which had been insured for its benefit, the same to be paid over to said company:

"When the new main building is completed, the city to have such interest in said building as the sum so paid over

to the said company bears to the entire cost thereof, and the city's interest to decrease in such proportion as the sum paid out by said company for labor, exclusive of executive labor, during the preceding year shall bear to the sum of $100,000, and the entire interest of the city in said building to pass to said company if said company shall pay out the sum of $100,000 in wages, exclusive of executive labor, within five years from and after the date hereof, it being understood and agreed, however, that if said company shall not pay out the sum of $100,000 for labor, exclusive of executive labor, within five years from and after the date hereof, the interest which said company may have theretofore acquired in said building shall revert to the city."

As a part of the consideration for this lease and agreement, the Block Company surrendered the then existing board of trade lease. Five thousand dollars insurance money came into the hands of Curtis for the city, and, as stated, this suit is brought to restrain payment to the Block Company, it having meantime rebuilt the building, not upon the premises belonging to the city, but on premises of its own adjacent thereto.

Jurisdiction. At the threshold of the case is the question of jurisdiction. Our statute, 1 Comp. Laws, § 435, provides:

"Such courts shall dismiss every suit concerning property, excepting suits between copartners, and suits for the enforcement of mechanics' liens, suits for the foreclosure of mechanics' liens, and suits for the foreclosure of mortgages, where the matter in dispute shall not exceed one hundred dollars, with costs to the defendant."

The complainant as a taxpayer has a right to ask chancery to restrain a threatened misuse of a city fund, in two classes of cases, viz.:

First. Where his interest in the fund or threatened damage to his property interests by its misuse amounts to $100.

Second. Where he has land worth $100 which is threatened with sale, or liable to a lien, for a tax, in consequence of the proposed misuse.