Detroit Trust Co. v. City of Detroit, 8.

• Decision Date: 23 October 1934
• Docket Number: No. 8.,8.
• Parties: DETROIT TRUST CO. v. CITY OF DETROIT.
• Court: Michigan Supreme Court

269 Mich. 81

256 N.W. 811

DETROIT TRUST CO.

v.CITY OF DETROIT.

No. 8.

Supreme Court of Michigan.

Oct. 23, 1934.

Appeal from Circuit Court, Wayne County; Sherman D. Callender, Judge.

Action by the Detroit Trust Company against the City of Detroit. Judgment for plaintiff, and defendant appeals.

Affirmed.

Argued before the Entire Bench.Arthur F. Lederle and William J. Kent, both of Detroit (Raymond J. Kelly, of Detroit, of counsel), for appellant.

Miller, Canfield, Paddock & Stone, of Detroit, for appellee.

Milburn & Semmes, Bulkley, Ledyard, Dickinson & Wright, and Butzel, Levin & Winston, all of Detroit, amici curiae.

NORTH, Justice.

Plaintiff is the mortgagee-trustee in a chattel mortgage dated January 29, 1927, covering personal property located in an apartment building in the city of Detroit. Both the building and the personal property were owned by the Chippewa Apartment Company, a Michigan corporation. The building was known as the Parkhurst Apartments. The defendant city assessed this personal property in the name of the Parkhurst Apartments. From the statement of facts in appellant's brief, which statement appellee accepts, it appears that at the time the assessment was levied this property was in the possession of plaintiff as trustee. We assume such to be the fact, notwithstanding it is denied in the amici curiae brief. Upon foreclosure of the chattel mortgage in December, 1931, the property was purchased by plaintiff. The defendant city thereafter through its treasurer threatened to seize the personal property for unpaid taxes. If the assessment was valid, these taxes had become a lien under the provisions of the city charter on July 15, 1930, and July 15, 1931, respectively. Plaintiff paid the taxes under protest. In a suit against the city for recovery of the amount so paid, plaintiff had judgment. The city has appealed.

The questions briefed are: (1) Was there a valid assessment of these taxes against this personal property? (2) If the assessment was valid, was the tax lien thereon created prior and superior to plaintiff's chattel mortgage lien? (3) Is plaintiff liable for the payment of these taxes, assuming it had possession of the property at the time the assessment was made?

(1) Since decision herein is controlled by the second issue above noted, there is no occasion for considering and determining the validity or invalidity of the assessment of these taxes. Without so adjudicating, for the purposes of this case we assume the assessments were valid.

(2) Was the plaintiff's chattel mortgage lien superior to the tax lien? In denying such superiority, appellant plants itself upon Act No. 107, P. A. 1929, being 1 Comp. Laws 1929, § 3429, which in part provides:

‘And all personal taxes shall also be a first (1st) lien on all personal property of such persons so assessed from and after the first (1st) day of December in each year and so remain until paid, which said lien shall take precedence over all other claims, encumbrances and liens upon said personal property whatsoever, whether created by chattel mortgage, execution levy, judgment or otherwise, and whether arising before or after the assessment of said personal taxes, and no transfer of personal property assessed for taxes thereon shall operate to divest or destroy such lien, except where such personal property is actually sold in the regular course of retail trade.’

Since plaintiff began this suit, the above-quoted statute was amended, but decision herein is not affected thereby. See Act No. 38, Extra Session, P. A. 1934.

From the facts hereinbefore recited, it is apparent that appellant is asserting priority of a tax lien provided in a legislative enactment which became effective August 28, 1929, as against the lien of a chattel mortgage given January 27, 1929. In so contending appellant takes the position that the statute providing for priority of the tax lien is retrospective rather than prospective, and that the statute gives priority to the tax lien notwithstanding the chattel mortgage lien antedated the legislative enactment. We think this position is not tenable. Even if we were to assume that the Legislature had the power so to do, it will be noted that it did not provide that priority of the tax lien should apply as against chattel mortgages given before the enactment became effective. We think it is settled as a general rule in this state, as well as in other jurisdictions, that all statutes are prospective in their operation excepting in such cases as the contrary clearly appears from the context of the statute itself.

‘Indeed, the rule to be derived from the comparison of a vast number of judicial utterances upon this subject, seems to be, that, even in the absence of constitutional obstacles to retroaction, a construction giving to a statute a prospective operation is always to be preferred, unless a purpose to give it a retrospective force is expressed by clear and positive command, or to be inferred by necessary, unequivocal and unavoidable implication from...