water flows east at this point, all lead us to the conclusion that this steel and tile work is not of sufficient capacity, and that it should be removed entirely, or that other tile, the diameter of which shall not be less than 30 inches, be substituted in place thereof by the complainant within a reasonable time. It appears to us that upon the main questions in the case the doctrine of this court as set forth in the cases of Highway Commissioners v. Ely, 54 Mich. 173 (19 N. W. 940), and Dean v. Millard, 151 Mich. 582 (115 N. W. 739), applies.

It appearing that the ditch or drain on the south side of the highway in front of defendant's premises has existed for more than 20 years, and that complainant had the right for the betterment of the highway to keep the same open and in good condition, we do not think that the claim of defendant that it was the duty of complainant to proceed under the provisions of chapter 15 of Act No. 283 of the Public Acts of 1909 can be sustained. The decree of the circuit court will be modified by directing the complainant, as commissioner of highways, to remove entirely the steel tube and tile obstruction indicated, or that other tile be substituted therefor, as above specified, within three months; and in all other respects, including the award of costs to the complainant in the court below, the decree will be affirmed.

The defendant will be allowed his taxable costs against complainant in this court.

STEERE, C. J., and MOORE, MCALVAY, BROOKE, KUHN, OSTRANDER, and BIRD, JJ., concurred.

PUBLIC SCHOOLS OF THE CITY OF MUSKEGON v. SMITH.

SCHOOLS AND SCHOOL DISTRICTS—BONDS

STATUTES.

Under Act No. 281, Local Acts 1899, incorporating the schools of Muskegon and conferring on its board of trustees the same powers as are granted to school districts by section 4717, 2 Comp. Laws, as amended by Act No. 12, Pub. Acts 1911 (4 How. Stat. [2d Ed.] § 9932), also conferring power to raise money, purchase sites, erect school buildings and furnish or improve them, respondent, the secretary of the board, should have been compelled by mandamus from the circuit court to sign and issue bonds that had been authorized by the board and voted upon by the electors of the district pursuant to law; and it is held, that the charter provisions authorizing the raising of money by taxation for the construction of buildings (§§ 19, 23, 24, 26) are consistent with the power to issue bonds under the general law.

Certiorari to Muskegon; Sullivan, J. Submitted December 6, 1912. (Calendar No. 25,435.) Decided January 3, 1913.

Mandamus by the public schools of the city of Muskegon against Frank H. Smith, secretary of the board of trustees of said schools, to compel respondent to sign and issue bonds authorized by the board. An order denying the writ is reviewed by relator on writ of certiorari. versed.

William Carpenter, for relator.

Re

Cross, Vanderwerp, Foote & Ross, for respondent.

MCALVAY, J. The relator is a school district, incorporated under Act No. 281 of the Local Acts of 1899. Its affairs are managed by a board of trustees, from which are elected a president and secretary. The respondent in these proceedings is its secretary. The controversy in this case arose between relator and respondent

on account of the refusal on the part of respondent, on being ordered by the proper authority so to do, to sign certain bonds of said school district, and an order was issued against respondent, on the application of relator, from the circuit court for the county of Muskegon, to show cause why a writ of mandamus should not issue to compel him forthwith to sign and issue said bonds.

The facts are undisputed, as appears from the answer of respondent to said order. Briefly stated such facts are as follows: The board of six trustees of said school district, called in the act under which it was organized 'the Board of Education,' at the regular meeting held December 8, 1911, unanimously adopted the following resolution:

"Resolved, that it is necessary to hold a special election of the qualified electors of the public schools of the city of Muskegon for the purpose of passing on the following questions:

"(1) Shall the board of education be authorized to erect a school building on block four hundred and ninety-three (493) of the city of Muskegon, according to the revised plat thereof, approved April 9, 1903, at an expense of more than fifteen thousand dollars ($15,000.00) ?

"(2) Shall the board of education be authorized to borrow a sum not exceeding thirty thousand dollars ($30,000.00) for paying the cost of said building, and to issue bonds of the district therefor for a term not exceeding fifteen years, bearing interest at a rate not exceeding five per cent. per annum, that sum being the amount which this board estimates as necessary for that purpose?"

The date of the election to be held on the 28th day of December, 1911, for the purpose of voting upon such questions, was duly fixed by resolution, and thereafter, upon legal notice, on the date named, at the election then held, the questions submitted were answered in the affirmative by an almost unanimous vote. Afterwards, in the year 1912, plans were adopted by the board of education, and bids were asked for and received, which were all largely in excess of the sum authorized to be borrowed, and none of these bids were accepted. Later new plans

were prepared, and the contract was finally let, August 29, 1912, for the sum of $30,531. The schoolhouse building is now in process of construction. On September 26, 1912, the president and secretary of the board of education were directed to issue the bonds. The secretary declined to sign the bonds or join in issuing them, on the ground that the board of education had no authority to order their issue, as appears from his answer, for the following

reasons:

(1) Upon being authorized by the vote of the electors of the district, the bonds were not issued during the then fiscal year.

"(2) There could have been raised in said district in the year 1911 or 1912, for the purpose of constructing school buildings and purchasing sites therefor, the amount of these bonds ($30,000.00) in excess of what was raised, and still have kept within the limit fixed by section 24 of relator's act of incorporation.

"(3) The relator has no power to vote or issue its bonds for constructing school buildings, except the power given or authorized by its act of incorporation; the general school laws in the matter of voting and issuing bonds for such purposes having no application."

Upon a hearing before the circuit court, the writ of mandamus was denied, and the relator has removed the case to this court by writ of certiorari for review, averring that the action and judgment of the circuit court was erroneous and ought to be reversed.

The sole question involved is the construction of the statute under which relator was incorporated, and whether its provisions are inconsistent with the provisions of the general school laws of this State reserved to relator in such statute, under which it is admitted by relator that action was taken in the submission of the questions relative to building a school building and borrowing the money required by issuing bonds.

The incorporating act provides that the board of education may, by resolution, determine the sums necessary to be raised by taxation for the purpose of purchasing

grounds and the erection, improvement, and furnishing of school buildings, not exceeding, for any one year, onehalf of one per cent. on the dollar of the taxable property in the city, as shown by the assessment roll of the preceding year. It authorizes the board to erect school buildings, but requires, if the building is to cost more than $15,000, that the question of the propriety of its erection shall be first submitted to the electors, and authorized by them. Section 26 of this act provides:

"Should any greater sum be required in any one year than can be raised under the provisions of the foregoing sections, such sum, not exceeding one per cent. of the taxable property in the city for the preceding year, may be raised by tax or loan, if authorized by a majority vote of the qualified electors of the school district, voting at any annual or special meeting called by the board for the purpose of voting thereon."

The foregoing are all of the provisions contained in this incorporating act, material to this issue, specially authorizing the raising of money for the purposes of buying school sites and constructing, furnishing, and improving school buildings, and are contained in sections 19, 23, 24, and 26.

In the month of June each year the board of education is required to determine, by resolution, the amount necessary or proper to be raised by taxation during the next school year for all purposes authorized by the above act, and on or before the first Monday in July in each year "the said board is required to transmit and certify the total amount so estimated to the common council of the city of Muskegon, which amount so reported, the common council shall cause to be raised by tax on all the taxable property in the city."

Section 26, above quoted, refers to all of the funds for all purposes specified in the sections referred to, including the fund for the purposes of purchasing grounds for schoolhouse sites and constructing, furnishing, and improving school buildings.