City of Grand Rapids v. Blakely

• Decision Date: 31 January 1879
• Citation: 40 Mich. 367
• Court: Michigan Supreme Court
• Parties: The City of Grand Rapids v. William I. Blakely

40 Mich. 367

The City of Grand Rapids v. William I. Blakely

Supreme Court of Michigan

January 31, 1879

Submitted January 22, 1879

Error to the Superior Court of Grand Rapids. Submitted January 22. Decided January 31.

Judgment affirmed with costs.

Wm Wisner Taylor and J. W. Ransom for plaintiff in error. The laws of 1839-41 required assessment rolls to be signed and certified to by the assessors, and the omission to sign was not cured by signing the certificate attached, Sibley v Smith, 2 Mich. 486; in 1842 the law was amended, and it was enough to sign the certificate, Lacey v. Davis 4 Mich. 140; in this case the statute only requires the roll to be subscribed by the commissioners, or a majority of them, 2 Sess. L. 1871, pp. 399-400, §§ 39-43. Public officers are presumed to have performed their duties properly. Thayer v. McGee, 20 Mich. 195; Amberg v. Rogers, 9 Mich. 332; Peck v. Cavell, 16 Mich. 9; Hartwell v. Root, 19 Johns. 345; Butterfield v. Radde, 38 N.Y. Sup'r Ct., 1; 1 Greenl. Ev., § 40; Jackson v. Shafer, 11 Johns. 517; Philip's Ev., 157; People v. Snyder, 41 N.Y. 397; Wood v. Terry, 4 Lans. 80; Arent v. Squire, 1 Daly 347; Leland v. Cameron, 31 N.Y. 115; People v. Carpenter, 24 N.Y. 86; Parish v. Golden, 35 N.Y. 462; Townsen v. Wilson, 9 Pa. 270. A lawful tax cannot be recovered back for mere irregularity in the proceedings to collect it (Dill. Mun. Corp., § 751), even if paid under protest, Lincoln v. Worcester, 8 Cush. 55.

Champlin & More for defendant in error. In proceedings to assess taxes, the assessor's certificate must recite enough to show that the statute has been complied with, Warren v. Grand Haven, 30 Mich. 24; State v. Hudson, 5 Dutch. 104. One can recover back the amount of an illegal assessment in assumpsit (Look v. Industry, 51 Me. 375), and it is enough if he pays under protest without a levy, Atwell v. Zeluff, 26 Mich. 118.

Graves, J. The other Justices concurred.

OPINION

Graves, J.

Blakeley brought assumpsit for money had and received to recover back a sum of money alleged to have been illegally claimed and collected as a special tax for a street improvement in the city. He obtained judgment in the Superior Court and the city brought error.

The question is raised tat a large part of the amount adjudged against the city was in fact paid some time after the warrant for collection had run out, and as a consequence that the payment should be held a voluntary one. This point is not authorized by the record. In submitting the case the judge distinctly assumed that the tax was demanded under color of process in the marshal's hands and which he held out as in force and as about to be executed in case of non-payment, and that Blakely in fact paid under protest. To this there was no exception. Moreover, the judge had ground for his assumption. The substantial point in controversy related to the original validity of the tax roll and not to minor incidents, and although several charges for the city were asked, there were no requests referring to the present objection, -- so far from it, that one stated expressly that the money was collected and paid over as a tax.

The further point that as the fund is not for city use, the city is not liable, is untenable. If the money was illegally exacted by the marshal under color of city authority, and was by him paid to and received by the city, the latter cannot escape liability by reason of the special object of the tax. Where the party entitled demands restoration, it is no answer for the city to say that it holds the fund for somebody else. Joyner v. Third Sch. Dist. in Egremont, 57 Mass. 567, 3 Cush. 567.

The assessment here in question, like that in Warren v. Grand Haven, 30 Mich. 24, was for a special object, and the proceeding necessarily involved, as it did there, a just allowance for benefits or advantage from the improvement to each one assessed. But the roll contained no return or certificate by the commissioners nor any paper making known the manner in which they proceeded. They barely subscribed their names.

The judge ruled that the case was governed by Warren v. Grand Haven, supra, and that the roll was invalid. An effort is now made to distinguish the cases, but we are unable to find any distinction in principle. Indeed the cases...