Chicago & N.W. Ry. Co. v. Ellson

• Decision Date: 25 May 1897
• Citation: 113 Mich. 30,71 N.W. 324
• Parties: CHICAGO & N.W. RY. CO v. ELLSON.
• Court: Michigan Supreme Court

71 N.W. 324

113 Mich. 30

CHICAGO & N.W. RY. CO v. ELLSON.

Supreme Court of Michigan

May 25, 1897

Appeal from circuit court, Marquette county, in chancery; John W Stone, Judge.

Bill by the Chicago & Northwestern Railway Company against William J Ellson. township treasurer. Bill dismissed, and complainant appeals. Affirmed.

R. C. Flannigan, for appellant.

M. J Sherwood, for appellee.

LONG C.J.

This bill is filed to restrain the defendant, who is township treasurer of the township of Onota, Alger county, from selling a quantity of coal for a tax assessed upon certain lands of complainant. It appears by the bill that the complainant is a railroad corporation, operating a line of road for the transportation of persons and property and the mails of the United States, extending through the states of Michigan and Wisconsin to the city of Chicago, and through or into three other states. It is the owner of a quantity of lands situate in the township of Onota, Alger county. These lands were granted to the complainant company to aid in the construction of a portion of its road in Michigan, and are owned and held by the complainant in its private capacity are not used or necessary for use in the operation of the road, and are subject to taxation. The taxes for the year 1896 upon these lands were not paid, and the defendant, by virtue of a tax warrant issued thereon, seized about 1,500 tons of coal belonging to and situate in coal sheds of complainant at the city of Ishpeming, county of Marquette, and advertised the same for sale, to satisfy the tax assessed upon the lands. It is admitted by the bill that all the proceedings for the assessment of the tax and the proceedings of the treasurer to collect the same in the county of Marquette as a personal claim against the complainant were regular and legally taken; but the bill alleges that the coal levied upon was necessarily used, and was necessary for use, in the due and proper operation of the road in the transportation of passengers and freight, and the carriage of mails, to the full performance of the duty which the complainant owed to the public as a common carrier, and to the exercise of its franchise to operate the road; that the necessities of the business of the public, both domestic and interstate, require that there be no interference with or interruption of the operations of the road; that, unless the complainant could continuously use the coal, its business of transportation and carriage of the mails would be seriously interrupted, and the running of trains disregarded and confused, and the complainant greatly damaged thereby. The complainant nowhere alleges its inability to pay the tax, or sets out any grounds upon which illegality in the tax levied against its lands is alleged, but bases its whole reason for asking the interference of a court of equity to restrain defendant from enforcing the payment of the tax on the ground that the property in question is exempt from distress and sale under the tax warrant. To this bill the defendant interposed a demurrer, which, upon the hearing below, was sustained, and the bill dismissed. The complainant appeals.

The question is presented whether the purely personal property of a railroad corporation occupies a different position under the tax laws of this state from the personal property owned by an individual, and therefore whether the coal seized by the defendant is subject to seizure under his tax warrant. Counsel for complainant contends that there is no statute expressly authorizing the seizure and sale of the personal property of a railroad corporation to pay the tax due the state; that it is a question of public policy in respect to which the sovereign power alone is authorized to deal; that it is not within the province of the courts, and they are not entitled, to specify what provision should have been made to further the collection from corporations of this character of private debts or public dues, and then to adjudicate as if the same had been made, but rather to ascertain whether the state, by unequivocal declaration of its legislature, has made provision for the collection. We are satisfied that there is sufficient authority found within the tax laws to warrant the action of the defendant in seizing and selling this coal under his warrant. Section 47, Act No. 206, Pub. Acts 1893, as amended by Act No. 229, Pub. Acts 1895, provides: "If any person shall neglect or refuse to pay any tax assessed to him, the township or city treasurer, as the case may be, shall collect the same by seizing the personal property of such person to an amount sufficient to pay such tax, fees and charges for subsequent sale, wherever the same may be found in the county in which such treasurer resides, or in an adjoining county thereto; and in case of assessment upon the personal property of corporations organized under the laws of this state for the purpose of engaging in maritime commerce and navigation, wherever personal property of such corporation may be found within the state; and from such seizure no property shall be exempt. He may sell the property seized to an amount sufficient to pay the taxes and all charges in the place where seized," etc. The word "person," as used in this statute, must be applied to bodies corporate and politic, as well as to individuals, under subdivision 12, � 2, How. Ann. St. Counsel for complainant contends that this provision of the tax law means that no property of an individual shall be exempt, and that it does not cover the property of railroad corporations, as it does not specifically designate them. He bases his contention that this property cannot be taken on the ground that the rule of public policy forbids, and that the property of a railroad is an entirety, and, since a portion is not liable to seizure under execution or on a tax warrant, all of it is alike exempt, and that the complainant owes certain other duties to the public, and may be forced to perform them.

In the case of Lake Shore & M. S. Ry. Co. v. City of Grand Rapids, 102 Mich. 374, 60 N.W. 767, the bill was filed for the purpose of vacating a local assessment upon the railway company's property, on the ground that the complainant was not liable to assessment for municipal street improvements, and to enjoin the mayor from executing a deed on a sale of the premises, which was a portion of the right of way, the roadbed of complainant's road, including a freight house on such right of way. While it was held that this property could not be sold under the provisions of the city charter for the nonpayment of the local assessments, yet the assessment was held valid. The city contended in that case that the tax might be collected from the personal property of the complainant, under the amendment of 1893 to the charter. It was said in that case: "If there were a general clause in the charter authorizing the collection from the personal property of the corporation, we could see no difficulty in enforcing the collection, as we are of the opinion that the lands and premises assessed cannot be sold for the tax for the reason stated; yet the assessment for the local improvement is valid." In Hackley v. Mack, 60 Mich. 604, 27 N.W. 875, the sheriff was acting under a warrant from the auditor general. It was said: "We have no law that we have yet discovered, and certainly none has been pointed out to us which authorized the...