Hill v. Graham

• Decision Date: 28 November 1888
• Citation: 40 N.W. 779,72 Mich. 659
• Court: Michigan Supreme Court
• Parties: HILL v. GRAHAM, TREASURER.

40 N.W. 779

72 Mich. 659

HILL v. GRAHAM, TREASURER.

Supreme Court of Michigan

November 28, 1888

Error to circuit court, Chippewa county.

Replevin by Arthur Hill against Harvey Graham, treasurer of the township of Bruce. Verdict and judgment for defendant. Plaintiff brings error. The tax act of 1885, � 11, subd. 4 (Sess. Laws 1885, p. 177,) provides that forest products shall be assessed in the township or ward where they may be except that, where such property is in transit to some place within the state, it shall be assessed in such place provided, that all forest products in transit on the second Monday in April, and thereafter, found in the waters or streams of this state, shall be held to have a place of destination at the sorting grounds nearest the mouth of the river, unless the contrary appear.

G. K. Grout, (D. P. Foote, of counsel,) for appellant.

John H. Goff, (George A. Cady, of counsel,) for appellee.

CHAMPLIN J.

This is an action of replevin brought by James H. Hill, Wilbur H. Hill, and Arthur Hill, then composing the firm of James H. Hill & Sons. James and Wilbur having died since the commencement of suit, and their deaths having been properly suggested of record, the case proceeded, and now stands as above entitled. On the 2d day of June, 1885, James H. Hill, Wilbur H. Hill, and Arthur Hill, composing the firm of James H. Hill & Sons, resided at Saginaw, and had their business office at East Saginaw, and were engaged in general lumbering business. On that day they entered into a contract with James Redy to cut and put afloat in the Munoskong river, to run and deliver at its mouth, all the pine timber on lands belonging to said firm, or either member thereof, in township 45 N., ranges 1 E. and 1 W., 44 N., range 1 W., and certain specified lands in township 44 N., range 1 E., the whole work to be completed on or before July 1, 1887. In the winter of 1885-86, Redy had cut and banked about 10,000,000 feet of saw-logs. The Munoskong river is a stream down which logs are run to the St. Mary's river. Its course passes through the townships of Bruce and of Pickford. When these logs were cut, the owners designated them to be run to the mouth of the St. Mary's river, and from thence be transported in rafts to Saginaw, to be there manufactured into lumber. But, by the course of events subsequently to the bringing of this suit, the design to manufacture them at Saginaw was not fully carried out, and many of them were sawed into lumber at Detour, in said county of Chippewa. On the second Monday of April, 1886, the supervisor of Bruce township went to the place in his township where the logs were banked, and found the creek bed, which was a small stream, piled full of logs, and also piled back from the creek on dry land a distance of 100 yards. These logs were in piles on the dry ground, and he estimated that there were 11,000,000 feet of them. The creek was frozen up, and the logs were not being run, although preparations were being made to run them when the creek, or "river," as it is called, should be in condition for running logs. The supervisor assessed the logs as personal property, and entered the same upon his assessment roll as follows: Under the heading upon his roll of "Name of Owner or Occupant," "James H. and Arthur Hill & Co. Logs in sections 30 and 32 and 33 and 22, T. 45, 1 E., and sections 23 and 14, T. 45, 9 W.,-amounting to (6,000,000) six million, at ($5) five dollars per thousand. Said logs marked 'Nice,"' and under the heading "Personal Estate Assessed," he entered the assessment at $30,000. This assessment went before the board of review, and the assessment was entered, in the column headed "Value as Fixed by Board of Review," at the sum of $30,000. About July 24th of that year, the supervisor who made the assessment resigned, and another person was appointed to act in his place. This supervisor took it upon himself, without authority, to alter the assessment upon the roll, by striking out the 6,000,000, and inserting 4,000,000, as the quantity of logs assessed, and by striking out $30,000, and inserting $20,000, as the amount assessed in the column as fixed by the board of review. In this condition the assessment roll went before the board of supervisors, and subsequently the taxes were extended upon the roll by the supervisor, and it was placed in the hands of township treasurer for collection. The counsel for plaintiff made four written requests to charge, which will be found in the margin, ^[1] all of which requests were refused as presented by counsel.

1. There was no evidence in the case tending to prove the existence of a firm by the name of James H. &amp Arthur Hill & Co., or that either of the plaintiffs were a member of such firm. The plaintiffs showed that the plaintiffs, James H. Hill, Wilbur H. Hill, and Arthur Hill, composed the firm of James H. Hill & Sons, and that these individuals, as such firm, owned the logs assessed. The first and portion of the third requests are based upon the fact that the logs were not assessed in the proper firm name, and attention is called to the statute which provides that, "for the purpose of assessing property and collecting taxes, a copartnership shall be treated as an individual, and whenever the name of the owner or occupant of property is required to be entered upon the assessment roll, if such property is owned or occupied by a copartnership, the firm name shall be used." This section is directory merely, and must be construed in connection with section 89 of the same act, which declares that "no tax assessed upon any property shall be held invalid on account of having been assessed in the name of any other person than the owner." The point has been twice ruled against the plaintiff's position by this court. The first case was that of Lumber Co. v. Collins, 32 N.W. 923. In that case a tax was assessed and levied against "A. H. Petrie & Co.," upon the roll, when in fact the property assessed, which was both real and personal estate, belonged to the Petrie Lumber Company, a corporation. This court held, under a statute of 1882, which is the same in terms with that of 1885, above quoted, that such assessment was valid, and authorized the township treasurer to collect it by levy and sale of the property of the Petrie Lumber Company. The other case was that of Dairy Co. v. McKinlay, 38 N.W. 469. In that case the tax was assessed and levied against "D. P. Clay or the Michigan Dairy Co." The Michigan Dairy Company in fact owned the property, and the township treasurer levied upon and sold the property of the Michigan Dairy Company to collect the tax assessed as personal property. The company brought trover against the collector. We held that the assessment came directly within the terms of the curative statute above quoted, and was also ruled by the case of Lumber Co. v. Collins. In this case the property assessed belonged to the plaintiffs, and their property was seized to enforce payment of the tax. We do not see that the rights of the plaintiffs whose property was taxed were prejudiced by the mistake of inserting the wrong name as owner. The names of two of the owners appear in the assessment, and it cannot be claimed that the owners were misled, or made to believe that their property was not upon the assessment roll, or that there was not a sufficient notice of an assessment against their property contained in the roll to call upon them to appear before the supervisor or board of review to object to any assessment against their property appearing upon the assessment roll. It must be held, therefore, that the assessment roll contained, so far as appeared from the face of the roll, a valid assessment and tax against the property of the plaintiffs, which it was to all appearances their duty to pay. This case, as well as the two above referred to, where this point was involved, may be considered as being based upon the facts appearing in the record, that the assessment was made and the collection sought to be enforced against the rightful owner, and that the roll...