Albany & Boston Mining Co. v. Auditor General

• Decision Date: 23 October 1877
• Citation: Albany & Boston Mining Co. v. Auditor General, 37 Mich. 391 (Mich. 1877)
• Court: Michigan Supreme Court
• Parties: Albany & Boston Mining Co. v. Auditor General et al

37 Mich. 391

Albany & Boston Mining Co. v. Auditor General et al

Supreme Court of Michigan

October 23, 1877

Argued June 14, 1877

Appeal from Houghton. (Williams, J.)

Injunction to restrain collection of tax. Defendant appeals. Reversed.

Decree affirmed with costs.

T. L Chadbourne, Ashley Pond and Hoyt Post for complainant. If an assessment is not made at the statutory time, all subsequent steps are void, Cooley on Taxation, 216; Clark v. Crane 5 Mich. 151; Hoyt v. East Saginaw 19 Mich. 39; it cannot be made afterwards: Wilcox v. Humphrey U. S. Dist. Ct., W. Dist Mich.; nor left in parol, Moser v. White 29 Mich. 59; and an assessment roll made by altering over that of a previous year is not competent evidence, Ferton v. Feller, 33 Mich 199. The validity of the assessment being a jurisdictional fact, Kinyon v. Duchene 21 Mich. 498, 501, the equities of the party assessed are as great as if the assessor's functions were usurped, Cooley on Taxation 186 and n. 1, and cannot be affected unless he waived the defect, Motz v Detroit 18 Mich. 495.

T. M Brady and C. I. Walker (on brief) for defendants.

Marston, J., Cooley, C. J. Graves, J., concurred, Campbell, J. (dissenting).

OPINION

Marston, J.

Complainants filed their bill to restrain defendants, the Auditor General and county treasurer, from selling certain lands for delinquent taxes. An answer was put in, proofs taken, and the relief prayed for granted.

The important facts in this case are as follows: Isaac M. Rhodes was supervisor of the township of Franklin in 1873 and 1874. Instead of making a new assessment roll for 1874 in the usual manner, he took the original assessment roll for 1873, which was in his office, and with a blue pencil made such changes and alterations thereon in valuation and otherwise as he deemed necessary. All such changes were made prior to the third Monday of May, 1874, and the roll of 1873 thus altered in fact constituted the roll for 1874, no changes having been made thereon after the time fixed for a review of the same in May, except to add one name with a tax of personal property. After the time fixed by law for a review of the assessment roll, the supervisor then made a copy of this roll, to which copy he attached his certificate as required by § 991 of the Compiled Laws, and the copy so made and certified to, stood henceforth as the roll for 1874.

The real question, then, in this case is whether a person whose real estate has been assessed in this manner can, for this reason alone, come into a court of equity and enjoin perpetually the sale of his lands for the collection of the taxes so assessed, without paying or offering to pay any part of the same?

It must be conceded in the outset that it was highly improper, if not criminal (How. Stat. § 9347) for the supervisor to make any changes, alterations or additions in or to the original assessment roll of 1873, required by law to be kept on file in his office. This cannot, however, in my opinion, avail the complainants. They are in no way prejudiced in this case on account thereof. Had the supervisor in the first instance taken the roll for 1873 and made a literal copy thereof, and then adopted the copy so made, with the necessary changes, as in this case, in order to make it an assessment roll for 1874, I do not well see how the complainants could be injuriously affected thereby or claim that an assessment so made would be absolutely void. And yet as to them wherein lies the distinction? The statute prescribes the method to be adopted by supervisors to procure a complete list of the taxable property within their several townships, and they are required immediately thereafter to proceed and examine the property, and estimate and set down the true value thereof. The statute farther prescribes that on the third Monday in May, and so on the next two following days, the supervisor shall be present at his office, at certain hours, for the purpose of reviewing his assessment, which then consists of descriptions and valuations only, including, of course, names of owners of property described, where necessary, and on the request of any person, his agent or attorney, considering himself aggrieved, on sufficient cause being shown to the satisfaction of the supervisor, he shall alter the assessment as to the valuation thereof, as shall to him appear just and equal. Comp. L. §§ 986, 987.

For all the purposes of this review, parties whose property was assessed could at the time fixed obtain as full and accurate information from the assessment roll for 1873, as altered, as they could had a copy of the same been made and then altered, or an entirely new assessment been made without any reference whatever to the roll for 1873. The roll as changed and as exhibited at that time, no longer stood as the roll for 1873, for that purpose, and as it then stood it was the roll for 1874, and the fact that it became necessary, after the supervisor had reviewed and completed this roll, for him to make a literal copy thereof, to which his certificate should be attached, and which should afterwards be examined by the board of supervisors, equalized and certified to by their chairman, and which should thereafter be and remain the original roll for 1874, would not, in my opinion, render such roll or the taxes afterwards assessed upon the basis thereof illegal and void. It may frequently become necessary, on account of the imperfect manner in which the assessment is first made, and the changes and corrections made during the review thereof, that a new roll or copy should be made and used thereafter as the original roll, and I should hesitate to hold, where such a necessity existed, in the opinion of the supervisor, and a legible and correct copy thereof had been made and adopted and used thereafter as the assessment roll, that third parties with no other foundation to stand upon, could, with the aid of a court of equity, escape the payment of their just proportion of the public burthens.

It is urged in the brief of counsel in this case that the abuses to which the course adopted in this case would lead are obvious; that the supervisor could readily alter the assessment fraudulently after its inspection, and detection of such alteration would be difficult, and that he might readily forget what assessment he had made and innocently alter it. In so far as any change or alteration in the record for 1873 is concerned, the abuse is obvious and could not be justified, but as already said, this is not the proper proceeding to punish that abuse, so long as complainants do not show how it injuriously affected their rights in the assessment in question. To punish the supervisor for tampering with a public record is one thing, but it does not necessarily follow that such changed record could not be made the basis upon which a valid assessment roll could be made out in favor of the State, county and other municipalities. The punishment cannot be extended so far as to deprive them of all rights in a proceeding of this kind. The other abuses referred to, even if likely to arise in such a case, may also where no such course has been adopted. Such an argument, however, does not go to the validity of the tax in this proceeding, especially where no such abuses are even hinted at in this case. We cannot assume that such an abuse will ever become the practice in this State, or grant the relief prayed for upon the theory that should such a practice be adopted, evils, now imaginary, may hereafter arise. "Sufficient unto the day is the evil thereof."

We need not, however, dispose of this case upon the grounds already stated. There is, in my opinion, still another clear and distinct ground for refusing the relief prayed for.

The complainant does not deny ownership of the property assessed or allege that the taxes assessed against their property, and the collection of which they are seeking to enjoin, are otherwise illegal, excessive or unjust, or that there would be anything inequitable in requiring them to pay the full amount thereof as their just proportion of a common public burthen. They come into this Court upon a purely legal objection, one which, even if valid to the full extent claimed, in no way increased the amount of the taxes assessed against their property, or added to their burthens or deprived them of any just right which they otherwise would have had. Having thus placed themselves upon a strictly legal objection, ought they not to have availed themselves of the remedy which a court of law would have given them, where, if their position is correct, they would have obtained full and complete redress without in any way affecting the rights and interests of the public in the other assessments, instead of coming into a court of equity for a process which in fact would prevent the payment of taxes by parties who otherwise would have made no complaint? The personal consequences are not the only ones which must be kept in view in this class of cases where a remedy by injunction is sought for to prevent the collection of the tax. "When the illegalities complained of affect only the person complaining, an injunction which restrains the collection as to him may cause no considerable mischief, and may very properly be awarded if a sufficient case is made out; but when they affect the whole tax levy, as they often do, a court should be extremely cautious in awarding, on the complaint of one person, or even of several, a process which may reach the cases of others not complaining, and which may seriously embarrass all the operations of the government depending on the source of revenue which by means of it would be stopped." Cooley on Taxation, 536. As was said in Eve v. State 21 Ga. 50, "How could a government calculate...