First Nat. Bank of Wyandotte v. Common Council of City of Detroit, Motion No. 171.

• Court: Supreme Court of Michigan
• Writing for the Court: CLARK
• Citation: 253 Mich. 89,234 N.W. 151
• Parties: FIRST NAT. BANK OF WYANDOTTE et al. v. COMMON COUNCIL OF CITY OF DETROIT et al.
• Docket Number: Motion No. 171.
• Decision Date: 07 January 1931

253 Mich. 89
234 N.W. 151

FIRST NAT. BANK OF WYANDOTTE et al.
v.
COMMON COUNCIL OF CITY OF DETROIT et al.

Motion No. 171.

Supreme Court of Michigan.

Jan. 7, 1931.

Certiorari to Circuit Court, Wayne County; Allan Campbell, Judge.

Suit by the First National Bank of Wyandotte, Mich. and others, against the Common Council of the City of Detroit and others. Judgment for plaintiffs, and defendants bring certiorari.

Reversed.

Argued before the Entire Bench, except POTTER, J.

[234 N.W. 151]

Walter Barlow, of Detroit (Clarence E. Wilcox, of Detroit, of counsel), for appellants.

Stevenson, Butzel, Eaman & Long, of Detroit (Thomas G. Long, of Detroit, of counsel), for appellees.

[234 N.W. 152]

Bulkley, Ledyard, Mills & Dickinson, of Detroit (Wilson W. Mills and Robert E. McKean, both of Detroit, of counsel), amici curiae.

CLARK, J.

The board of assessors of the city of Detroit assessed, in the April, 1930, shares of capital stock of the plaintiff First National Bank of Wyandotte, Mich., without making any deduction in respect of credits, being a large sum, consisting of bonds, notes, and other indebtedness secured by lien upon real property, upon which specific tax had been paid under Act No. 91, Public Acts of 1911 (Comp. Laws 1915, § 4268 et seq.).

Plaintiff bank and the other plaintiff, one of its stockholders, appealed in writing and in due form to the common council of the city. The appeal was denied on April 29, 1930. The common council confirmed the assessment rolls on May 1, 1930. On April 30, 1930, plaintiffs filed in the circuit court petition for writ of mandamus. Order to show cause issued returnable May 9, 1930. Answer and plea and hearing were on the return day. Plaintiffs had judgment on May 22, 1930. Defendants review on certiorari.

Decision of a preliminary question disposes of the case. Is mandamus a proper remedy?

The charter provides (title 6, c. 2, § 4) that the board of assessors, having completed the review and correction of the assessment rolls, shall sign ‘and on the third Tuesday of April each year return the same to the common council,’ being, in 1930, April 15.

The charter further provides (title 6, c. 2, §§ 5, 6) that the common council, after receiving the assessment rolls, shall, at 10 o'clock in the morning of the first succeeding day, proceed to consider the same, and that such consideration and the hearing of appeals may be continued from session to session for a period of not exceeding sixteen days after the date of the delivery of the rolls to the council, and that, ‘after due consideration thereof, said rolls shall be fully and finally confirmed by the council, and shall remain as the basis, according to property valuation, of all taxes to be levied and collected in the city until another assessment shall have been made and confirmed as herein provided.’ Such confirmation, as has been said, was on May 1, 1930.

The position of the defendants, board of assessors and common council, is that after May 1, 1930, and at the time of hearing and of judgment, they had no power to make the change sought by the plaintiffs, the assessment rolls not being then under their control, or the control of either of them. But plaintiffs contend there is still power in the common council, in this regard, under the charter (title 6, c. 4, § 30), which is:

‘Sec. 30. The common council may also provide and ordain by ordinance, that whenever it shall appear that any taxes or assessments have been illegally assessed or collected, the common council may, by a vote of two-thirds of all the members-elect, direct and cause the amount so collected to be refunded out of the contingent fund, or in case it has not been collected, to vacate the assessment, and fix upon an amount, to be received in full of such tax or assessment, and no such action on the part of the council, under such ordinance, shall in any way affect or invalidate any other tax or assessment levied, or collected in said city.’

It is not urged that, pursuant to this section, any ordinance, so authorized, has been passed by the council and approved by the mayor, nor does it appear in the record. The section is not self-executing.

On this record it must be held that, at the time of the judgment in mandamus, neither the board of assessors nor the common council had authority to do that which they were commanded. It is a general rule that mandamus will not issue where it...