Hubbard v. Winsor

• Decision Date: 10 November 1866
• Citation: 15 Mich. 146
• Court: Michigan Supreme Court
• Parties: Langdon Hubbard and others v. Richard Winsor and another

15 Mich. 146

Langdon Hubbard and others v. Richard Winsor and another

Supreme Court of Michigan

November 10, 1866

Heard October 19, 1866 [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Appeal from Huron circuit in chancery.

The bill was filed to restrain the collection of certain taxes, alleged to be illegally assessed against complainants jointly, upon certain lands and personal property in the township and county of Huron, for the year 1862.

Upon the filing of the bill the circuit judge granted a temporary injunction, and upon final hearing of the cause, upon pleadings and proofs, made the same perpetual by decree.

The facts are stated in the opinion.

Decree reversed, and the bill dismissed, with costs of both courts.

Wm. T. Mitchell, for complainants:

1. The lands upon which the taxes were assessed were owned by the complainants in their several names, as joint owners or tenants in common, and were therefore improperly assessed to them as copartners in the partnership name; their several interests should have been assessed, or, if not known, they should have been assessed as unknown. They could not legally be assessed to the partnership: Comp. L., §§ 802, 800, and subd. 6, § 804.

Personal property only can be assessed in the partnership name: Id. § 793.

When real estate is held by partners for the purpose of the partnership, they do not hold as partners, but as tenants in common, and the rules relative to partnership property do not apply in regard to it: 15 Johns. 169; 2 Caines R., 166; 21 Pick. 64; 2 Gibbs (Mich.), 98, 486.

2. The assessment of the northeast quarter of section 4, town 18 north, of range 14 east, "less lots sold," at $ 12,000, was entirely void, for want of certainty in the description. There is no definition of what lots had been sold or what were assessed.

The collection of the tax upon this land should be restrained, were there no other defects in the assessment: Comp. L., § 804; 3 Mich. 172;. 2 Blackf. 51; Blackwell on Tax Titles, 159, 160, 162, 166.

3. The supervisor made no sufficient inquiry or examination as to the value of the property assessed, and especially as to the personal property, he having no means of judging its amount, quality or value, and taking no steps to ascertain the same, as required by the statute: Comp. L., §§ 795, 800.

4. The board of supervisors did not, at their annual session in October, as required by the statute, make any determination of the amount to be raised for county purposes; nor did they, at their session in that month, make any apportionment of the amount to be raised for state or county purposes among the several towns of the county as required by the statute. Any such determination or apportionment at any other time was and is entirely void. At the session in October no action whatever was taken in regard to the amount of taxes to be raised or their apportionment: Comp. L., § 813.

5. The board did not fix, ascertain, or determine any basis upon or for which the percentage was to be raised. The amount and not the percentage should have been ascertained and determined, and placed at large upon the record. Their action at this time did not in any respect comply with the statute requiring a determination of the amount to be raised. Both the time and the manner, or, more properly speaking, the failure of determination rendered any tax for county purposes entirely void. There was an entire failure to determine any amount: Id., § 813.

6. There was no certificate made by the clerk of the board of the amount apportioned to be assessed upon the taxable property of the township of Huron, but simply a certificate of the rate per cent, so that the supervisor had no authority for levying the taxes: Comp. L., § 814.

7. The collection of taxes, when illegally assessed, may be restrained by injunction, and most especially in cases where a levy has been made, as in this case, for the collection of taxes absolutely void and unauthorized by law.

The court has undoubted jurisdiction to interfere by injunction where public officers are proceeding illegally and improperly, under a claim of right, to do any act to the injury of the rights of others: Harring. (Mich.) Ch., 72; 3 Ham. 72.

Under the action, or rather lack of action, of the board of supervisors, the whole state and county taxes were void. An illegal and void assessment is no assessment at all; it is a nullity, and authorizes no person to act under it or enforce it: 2 Term R., 372; 10 Mass. 17; 11 Id. 220; 13 Id. 282; 15 Id. 144; 5 Conn. 190; 2 Id. 550; 14 Ill. 223.

The cases in 3 Mich. 22 and 25 Ill. are entirely dissimilar to the case in hearing.

We insist, therefore, that the complainants are entitled to a decree for perpetual injunction, as prayed in their bill.

Newberry & Pond, for defendants:

1. The lands were properly assessed to complainants as copartners.

a. The bill, upon its face, shows that the lands were owned by complainants as partners, and not merely as tenants in common.

b. The bill in effect alleges that the lands were handed in by Langdon Hubbard, as partnership property, subject to taxation, and it affirms and seeks the benefit of his action in this regard.

Under these circumstances complainants are not in a position to object to the tax upon that ground, even if they otherwise might have done so.

c. Conceding that the lands should have been assessed to the complainants, severally, according to the undivided interest of each, the assessment to them as partners was not so prejudicial to their interests, that a court of equity will aid them to resist its collection.

So far as can be seen, no possible injury could result to them from this irregularity--if irregularity it be--in the assessment, and hence equity requires that they should overlook it and pay the tax.

2. The action of the board of supervisors in ascertaining and determining the amount of money to be raised by tax for county purposes, and apportioning the same, together with the state tax, amongst the several towns, was in substantial compliance with the statutes.

a. The amount to be raised for county purposes was ascertained and determined at the October session of said board. It was regular for the board of supervisors to adjourn from time to time, and thus continue the October session into November.

b. Fixing the amount of county tax to be raised at twelve and two-tenths mills on the dollar of valuation of property in the county, as appears to have been done, was a determination of the amount within the statute. Id certum est, quod certum reddi potest.

3. The action of the board of supervisors in that behalf, as set forth in the bill, was a sufficient apportionment of the state and county tax to be raised among the several towns.

The amount to be raised by each town was as definitely fixed as if it had been stated in dollars and cents. If, however, it should be held that this action of the board of supervisors was not an apportionment in accordance with the statute, the irregularity is cured by Sess. Laws 1863, p. 25.

4. The provision of the statute, Comp. L., § 816, which requires the supervisor to notify the township treasurer, on or before the 25th of October, of the amount of state and county tax apportioned to his township, and said treasurer to file his bond with the county treasurer on or before the 5th day of November, is directory, and a failure to strictly comply with it does not vitiate the tax.

This proposition seems too clear for argument.

5. If there was such defect or irregularity in the proceedings of the proper officer in relation to the matters considered under points one, two, and three, as to otherwise vitiate the tax roll for said township of Huron, such defects are irregularities, and cured by statutes: Sess. Laws 1863, pp. 25, 26, 35, 36.

These statutes are valid: 28 Conn. 97; 36 Penn. 29; 3 Dutcher 185; 12 Md. 195.

6. If the proceedings of the board of supervisors, in relation to the...