Board of Sup'rs of Chippewa County v. Auditor General
| Decision Date | 14 April 1887 |
| Citation | 65 Mich. 408,32 N.W. 651 |
| Parties | BOARD OF SUP'RS OF CHIPPEWA CO. v. AUDITOR GENERAL. |
| Court | Michigan Supreme Court |
Mandamus.
Blair Wilson & Blair, for relator.
The Attorney General, for respondent.
The auditor general rejected taxes levied on lands granted by the state to the Detroit, Mackinaw & Marquette Railroad Company to aid in the construction of its road; the ground of rejection being an agreement made that such lands should not be taxable within 16 years, unless previously disposed of. Relators, representing Chippewa county, now seek to have the auditor general's rejection held invalid so that taxes may be levied on these, as on ordinary private lands.
By an act of the legislature of 1873, entitled "An act to authorize and empower the board of control of state swamp lands to make an appropriation of state swamp lands to aid in the construction of a railroad from the straits of Mackinaw to Marquette harbor, on Lake Superior," (Laws 1873, p 37,) the board of control received authority to appropriate 10 sections per mile to any company that should complete and have its road in running order by December 31, 1875. The board also were to "have full power and authority over said lands, the reservations necessary, and the limitations and privileges requisite, in the application of such lands to such purpose." But this was qualified by certain provisos, one of which was "that said appropriated lands shall become taxable as soon and as fast as they are earned by the company constructing said railroad." Several subsequent amendatory acts were passed which were somewhat more liberal in their provisions, but only one of which bears on the taxation of the lands. By a law of 1875, being "An act to amend sections one, two, and three of an act entitled [as before quoted,] and an act amendatory thereof approved March 24, 1874," (Laws 1875, p. 119,) a provision was introduced which is the basis of exemption as claimed. Section 2 was so amended as, among other things, to leave out the clause making the lands taxable at once, and in lieu thereof this proviso was put in: "And provided, further, that the said board of control shall make no contract exempting said lands from taxation for any period longer than the time during which they shall remain unsold by the railroad company which shall become entitled to the privileges of this grant: provided, no such exemption shall in any event be for a longer term than sixteen years from the time such lands are patented." Other amendments have been made since, but not affecting this proviso.
No company undertook the work until after some further legislation in 1879, although an abortive contract had been made and annulled. On the fourth of September, 1879, the board of control let the contract to the Detroit, Mackinaw & Marquette Railroad Company, who undertook to build and equip a railroad in the manner required by the statutes, and particularly described in the contract. In this contract, in accordance with the act of 1875, it was agreed etc.
On June 1, 1881, the railroad company executed a mortgage in trust to Francis Palms and James McMillan to secure the payment of 4,560 bonds of $1,000 each, covering the lands now in controversy. It was suggested, but not very strenuously argued, that this instrument should be considered a sale, and not a mortgage. But it appeared to us on the argument, as it now appears, that it is not only spoken of in its own terms throughout as a...
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