City of Muskegon v. S.K. Martin Lumber Co.

• Decision Date: 28 July 1891
• Citation: City of Muskegon v. S.K. Martin Lumber Co., 49 N.W. 489, 86 Mich. 625 (Mich. 1891)
• Court: Michigan Supreme Court
• Parties: CITY OF MUSKEGON v. S. K. MARTIN LUMBER CO.

49 N.W. 489

86 Mich. 625

CITY OF MUSKEGON v. S. K. MARTIN LUMBER CO.

Supreme Court of Michigan

July 28, 1891

Error to circuit court, Muskegon county; ALBERT DICKERMAN, Judge.

Action by the city of Muskegon against the S. K. Martin Lumber Company to collect unpaid taxes. Judgment for plaintiff. Defendant appeals. Reversed.

H. L. Delano, for appellant.

De Long & O'Hara, for appellee.

CHAMPLIN C.J.

This suit is brought to recover the taxes assessed against defendant upon the general tax-roll for the year 1889 of the city of Muskegon. Samuel H. Stevens was city treasurer, and by virtue of that office collector of the taxes. Defendant, a foreign corporation, organized under the laws of the state of Illinois, was assessed upon the assessment roll for personal estate upon a valuation of $48,000, and taxes were levied against it, and extended upon the tax-roll for state, county, city, and school, amounting in the aggregate to $1,660.43. The treasurer, being unable to find personal property belonging to the corporation whereupon he could levy the same, returned the taxes to the county treasurer. The county treasurer thereupon gave to the city treasurer a statement of all the personal taxes in the city remaining uncollected taken from the return of the latter, with a warrant authorizing him to collect them according to law. This statement embraced, among others, the taxes assessed against defendant corporation. The warrant is dated March 17 1890. The city treasurer endeavored to collect the tax, and called upon S. K. Martin, its president. He did not pay, and claimed that the tax was excessive; and, further, that he had no personal property there. Stevens testified that he could find no property belonging to the company whereon to levy and, acting under the advice of the city attorney, commenced this suit on May 10, 1890. Upon the trial of the cause the original tax-roll for the year 1889, returned to and filed with the county treasurer, containing the assessment and taxes against defendant, was introduced in evidence. No jurisdictional defects were pointed out in this roll, or in the proceedings upon which the assessment was based. The statement of uncollected taxes upon personal property for the year 1889, with the warrant of the county treasurer annexed in which statement the assessment and taxes against defendant appeared, was also offered in evidence. We think the objections to the introduction of these documents were not well taken. The objection to the latter went rather to the order of proof than to the relevancy of the statement and warrant. The witness Stevens was permitted to testify to the fact that he made a return of the tax-roll to the county treasurer, and when he did so. This was objected to in due season by defendant's counsel that the testimony was incompetent, because, if he did make a return the return would be the best evidence of the fact, and when it was made. The next question asked the witness was this: "After having made your return of the roll that I have called your attention to,-the tax-roll for the year 1889,-did you receive this statement from the county treasurer marked 'Plaintiff's Exhibit 1?"' (Exhibit 1 is the statement of uncollected personal taxes, with the warrant annexed, given by the county treasurer to the city treasurer.) The counsel for the defendant objected to the question, for the reason that it had not been shown that the city treasurer made such return to the county treasurer as required by the charter of the city of Muskegon, or the general laws of the state of Michigan. The court overruled the objection, and the witness answered: "I did." It must be presumed that the expression, "made return of the roll," made use of, refers to the statements required by section 44, and referred to in section 45 of Act No. 153 of Public Acts of 1885. These statements are public documents, and are necessarily brought to the cognizance of tribunals through the medium of human testimony, and such testimony must be limited to giving such a general description of the document as shall be sufficient to identify it, and deposing to the real evidence afforded by its visible state. Best Ev. �� 216, 223. The witness was not called upon to give the contents of the statements, nor to depose to the fact of verification. The statute required these statements to be made and verified in a certain manner and the county treasurer was by the statute required to file them. The testimony was admissible. Having shown the existence of such documents eo nomine in the proper office, and in the keeping of the proper custodian, the plaintiff relies upon the presumption of the regularity of such documents which the statute declares shall exist in their favor, as establishing- First, not only the right of the city to sue for and recover this tax; but, second, also to show the authority of the city treasurer to...