James A. Welch Co. v. State Land Office Bd.

• Decision Date: 07 October 1940
• Docket Number: Motion No. 18.
• Citation: 295 Mich. 85,294 N.W. 377
• Parties: JAMES A. WELCH CO., Inc., v. STATE LAND OFFICE BOARD.
• Court: Michigan Supreme Court

295 Mich. 85

294 N.W. 377

JAMES A. WELCH CO., Inc.,

v.STATE LAND OFFICE BOARD.

Motion No. 18.

Supreme Court of Michigan.

Oct. 7, 1940.

Original proceeding by the James A. Welch Company, Inc., for a writ of mandamus to require the State Land Office Board to proceed with advertised sale of state lands acquired through tax sales in the City of Flint.

Writ denied.

Argued before the Entire Bench.

A. J. Michelson, of Flint, for plaintiff.

Thomas Read, Atty. Gen., and Edmund E. Shepherd and John Panchuk, Asst. Attys. Gen., for defendants.

Farley & Elliott, of Flint, amicus curiae.

CHANDLER, Justice.

Plaintiff was the owner of several parcels of real estate located in the City of Flint, which, on May 3, 1938, were sold for delinquent taxes under a decree of sale entered in the circuit court for the County of Genesee, in chancery, on April 23, 1938. The statutory right of redemption of said parcels of land was not exercised by plaintiff, and as a result, the title absolute thereto vested in the State of Michigan on November 3, 1939.

Pursuant to statutory regulations, and after due notice, the State Land Office Board, on February 13, 1940, commenced a sale of state lands in Genesee County acquired through tax sales. On February 12, 1940, the day preceding the commencement of the sale, the City of Flint filed an application with said State Land Office Board to withhold from the sale all lands in the City of Flint to which title had become vested in the State of Michigan by reason of tax sales and the applicable provisions of Act No. 155, Pub.Acts 1937, as amended by Act No. 244, Pub.Acts 1939.

The Land Office Board on February 13th adopted the following resolution:

‘Whereas, a decision of the State Supreme Court concerning the procedure in withholding properties from the auction sale was handed down on February 10, and

‘Whereas, Section 5 of Act No. 155 of the Public Acts of 1937, as amended, permitswithholding applications to be filed at any time prior to the date of sale,

‘Therefore, be it hereby resolved that applications by municipalities for withholding properties from sale be accepted by this Board, or any duly appointed agent hereof, up to the close of business of the day prior to the day on which parcel proposed to be withheld is scheduled to be offered for sale.’

On February 13 and 14, 1940, plaintiff filed with the Flint City Commission and the Land Office Board a written protest to the effect that it repudiated any authority assumed by any committee of the City Commission to request the State Land Office Board to withhold any lands from said sale on its behalf. It statded in the protest: ‘The undersigned states that he does not desire said lands withheld from said land sale of 1940 and further states that he has no intention of redeeming said lands through the City of Flint if they are withheld from said land sale or of redeeming said lands through any other taxing unit.’

The protest contained a request that if the City of Flint desired any of the lands withheld with the intention of acquiring the same for public purposes, the City Commission designate specifically the properties it desired to withhold from sale and to be acquired for public purposes and also state the nature of the public purposes on account of which said lands were to be withheld from sale. In the protest, plaintiff claimed its right to become a purchaser of the lands formerly owned by it at the 1940 tax sale, claiming a right superior to the right of the City of Flint to withhold the lands from the sale.

On February 27, 1940, the City of Flint filed with the Land Office Board an application to withdraw from its withholdings, theretofore made, certain lands, including one parcel of land formerly owned by plaintiff, and asked that the same be allowed to go to immediate sale in accordance with the provisions of Act No. 155, Pub.Acts 1937, as amended. This application was rejected by the Board on March 4, 1940.

After the foregoing proceedings, plaintiff filed with this court its petition for a writ of mandamus to require the State Land Office Board to proceed forthwith with the advertised 1940 state land sale of all lands in the City of Flint, or, in the alternative, to direct said Board to proceed forthwith with the advertised 1940 state land sale in the City of Flint and offer for sale all lands withdrawn by the City of Flint from its withholding application.

Plaintiff insists that it is entitled to the relief sought in its petition because:

1. It ‘acquired the vested right by virtue of the decree of the Circuit Court for the County of Genesee, Michigan, entered on the 23rd day of April, 1938, to have its former lands offered for sale at the 1940 state land sale, and by said decree acquired the right or option to repurchase the same at said sale, subject only to withholding rights of ‘Municipalities Which Do Not Return Their Delinquent Taxes to the County Treasurer’. These vested repurchase rights could not be impaired by subsequent legislation extending to All municipalities, including the City of Flint, the right to withhold lands from the 1940 state land sale.'

2. ‘Act 244, P.A.1939, amending Act 155, § 5, P.A.1937, extending to all municipalities the right to withhold lands from the state land sale should be construed prospectively and not retrospectively, so as not to impair vested rights obtained under court decrees in tax sale proceedings entered before the amendment.’

The foregoing contentions of plaintiff are in direct conflict with the recent decision of this court in the case of Baker v. State Land Office Board et al., 293 N.W. 763, 768. In the opinion in that case, we said: ‘The decree in question was entered pursuant to the tax statutes in effect at the time, and for the purpose of carrying out the provisions of such law. Such decree cannot be said to vest rights in the tax delinquent debtor. The claimed rights arose only out of the provisions of the statute governing sales for tax delinquency; and such rights are subject to abridgment by the legislature, for the reason that they are remedial in their nature. One who owes delinquent taxes has no vested right to have the interest thereon remain unchanged. Webster v. Auditor General, 121 Mich. 668, 80 N.W. 705; nor to have the time of sale or period of redemption continue the same as it existed during the period of delinquency. Muirhead v. Sands, supra [111 Mich. 487, 69 N.W. 826]. Nor do vested rights arise out of redemption provisions of a decree entered pursuant to a remedial statute governing tax sales.’

In the Baker case, ‘the decree in question’ is the same as the one in the instant case as both came from Genesee County and involve lands in the City of Flint.We again quote...