Clark v. Mowyer

• Decision Date: 15 July 1858
• Citation: 5 Mich. 462
• Court: Michigan Supreme Court
• Parties: Nelson W. Clark v. Aaron Mowyer

5 Mich. 462

Nelson W. Clark v. Aaron Mowyer

Supreme Court of Michigan

July 15, 1858

Heard May 25, 1858

Case made after judgment from Genesee Circuit.

The action was ejectment for certain lands in township five north, of range six east.

On the trial, the plaintiff proved title from the United States.

The defendant, on his part, gave in evidence deeds executed in due form by the auditor-general upon sales of said lands for taxes delinquent for each of the years 1847, 1848, 1849, 1850 and 1851, and deduced title in himself through them.

The plaintiff, among other things to impeach the validity of said deeds, introduced in evidence the notices under which said sales were held, which were in the following form "Auditor-General's Office, Lansing, July 2d, 1849. So much of each of the following described tracts or parcels of land, situated in the county of Genesee, delinquent for unpaid taxes for the years mentioned below, as will be sufficient to pay the taxes, interest and charges thereon will be sold by the treasurer of said county on the first Monday of October next, at such public and convenient place as he shall select in the village of Flint, the county seat of said county, according to the statute in such case made and provided. John J. Adam, Auditor-General."

The foregoing was for the sale for delinquent taxes of 1847. For the subsequent years, similar notices were advertised. Appended to such notices were the lists required by law containing the description of lands to be sold, with the required statement of taxes, interest, etc., and the land in controversy was embraced therein.

It also appeared in evidence, that the auditor-general, in each of said years, issued a circular to the county treasurer, instructing him to make the sale "at the court-house, or place where the Circuit Court was last held, if practicable; and, if not, then at some other public and convenient place at the county seat of your county, of which you will give public notice at least one week before the sale." And that such notice was given by posting up notices at the court-house, county treasurer's office, and other public places at the county seat of said county, in compliance with said instructions. No other notice of the place of sale was given. The sales were made at the court-house.

The Circuit Judge held the said notices insufficient, and rendered judgment for plaintiff. The defendant having excepted to this ruling, a case was made for review upon such exception in this court.

Judgment reversed, and new trial granted.

W. M. Fenton, J. M. Howard, Geo. V. N. Lothrop, and H. H. Emmons, for defendant. ^[*]

M. Wisner and C. I. Walker, for plaintiff.

Christiancy J., Martin, Ch. J., Manning, J. Campbell, J. dissenting.

OPINION

Christiancy J.:

The only question in this case is, whether the notices of sale were sufficient as regards the place of sale and hour of the day.

The statute which prescribes the notices of sale for taxes of the several years in question--after requiring the auditor-general to make out statements of the several parcels of land upon which taxes are delinquent, specifying the amount of taxes due on each parcel, the interest thereon to the first Monday of October thereafter, together with the costs, expenses, etc., and providing for eight weeks' publication of such statements prior to the sale--makes the following provision in reference to the notice which is to accompany the publication of the statements: "The auditor-general shall annex to, and cause to be published with, each of said statements, a notice that so much of each tract or parcel of land described in said statements as will be necessary for the purpose, will be sold by the county treasurer on the first Monday of October next thereafter, at such public and convenient place at the seat of justice of the county as the county treasurer may select, for the payment of the taxes, interest, and charges thereon:" R. S. 1846, chap. 20, § 74. This is the only provision of statute in reference to the subject of notice of any of these tax sales; and it is very obvious that it does not expressly require any notice of the particular place at the county seat which the county treasurer may select for the sale. This is admitted. But it is contended by the plaintiff's counsel that notice of the place so selected is necessarily implied; and it must be admitted that if necessarily implied in the statute, it is as much a part of its requirements as if it were expressed.

But what particular kind of notice is so implied, the able and learned counsel for the plaintiff have not assumed specifically to define. Whether to be given by the auditor-general, or by the county treasurer; whether, if by the latter, it must be published in the same paper and for the same length of time; or whether a publication for a reasonable time, in the same paper, will answer the purpose; or whether for the whole length of time in some other paper in the county; or whether in some other paper for a reasonable time--but that such notice must be given by one of the officers mentioned, and in some one of the modes, and for some one of the times mentioned above, and not simply by posting notices, as was done in this case, they assume to be necessarily implied in the statute.

Now, it would seem that an implication of a statute, claimed to be a necessary implication, ought to assume a somewhat more definite and less dubious form. The needle which points in so many different directions can not traverse with much force, nor constitute a safe guide in any direction; and an implication or an inference which tends to the proof of so many alternative propositions, loses at once, and by that diversity of tendency, all claim to the character of a necessary inference in favor of any one of them--because, if any one of them is a necessary implication, it not only deprives all the others of that character, but disproves them entirely. And if any one is a reasonable implication, it detracts much from the reasonableness of every other.

But I propose to examine each of these alternative propositions in detail. Before doing this, however, it may be well to remark that this is purely a question of statute construction. The power of the legislature to authorize a sale of these lands for the taxes, without any such notice of the place, is admitted. We are not, then, to inquire what we think the legislature should have required in reference to the notice of sale, but what they have actually seen fit to require. The court are not to make or amend the statute, but to construe it as it is; and the whole office of construction is to ascertain and give effect to the intention of the legislature. And in construing statutes in reference to tax sales, the rules of construction should be no more strict or technical, nor more loose and fanciful, than in the construction of statutes generally. In all alike, the legislative intent must govern.

The first of the alternative propositions claimed by the plaintiff's counsel is, that the county treasurer should select the particular place of sale at the county seat, and inform the auditor-general of the selection, before he gives his notice of sale, and that the place so selected should be incorporated in the auditor's notice.

The first and obvious answer to this proposition is, that if the legislature had intended the notice to state the particular house or place selected by the treasurer, it would have been easy, and in the natural course of legislation, upon a matter where certainty in the law was so important, and where any uncertainty might materially affect the revenue of the state, to have said so expressly. It was a matter which could not well have escaped their notice. They had expressly given the treasurer the right to select; and if we believe it did escape their notice, then clearly it cuts off all inference of the intent claimed, and it would then be a casus omissus, and not within the statute.

But, second, if it were intended that the several county treasurers should so inform the auditor-general of the place selected, before he issued his notice, it would have imposed it as a duty upon the county treasurers to make such selection before that time, and officially no notify the auditor-general of the fact, and have given him, also, a right to demand its performance. But the law, so far from imposing this upon the treasurers as an official duty, has not even authorized them to do so officially; and, hence, any notification, by such treasurer, of such selection, would be an unofficial act and of no binding authority. Suppose the treasurer was called upon to select and notify the auditor, and should refuse; could this court compel him to do so by mandamus, under this law? Clearly, it could not. It is little less than absurd to suppose that the legislature intended to leave the revenue of the state thus dependent upon the mere chance of the auditor's being able to divine beforehand the various places selected, or to be selected, by the several county treasurers in the state, without requiring them to give the information. It is not very reasonable to suppose the legislature intended to make the public revenue dependent upon the unofficial politeness of thirty or forty different county treasurers, acting upon their separate and individual responsibility, without any of the obligations of official duty.

But third, this proposition is not sustained by the language of the statute. If it had been the intention that the treasurer should first select and notify the auditor of the place selected, and that he should state the place so selected, it would more properly have used the terms "at such place as the county treasurer may have selected," and not ...