LeRoy v. East Saginaw City Railway

• Decision Date: 20 April 1869
• Citation: 18 Mich. 233
• Court: Michigan Supreme Court
• Parties: Myron F. LeRoy v. East Saginaw City Railway

18 Mich. 233

Myron F. LeRoy v. East Saginaw City Railway

Supreme Court of Michigan

April 20, 1869

Heard April 16, 1869 [Syllabus Material] [Syllabus Material]

Error to Saginaw circuit.

This was an action of replevin, brought by the East Saginaw railway company against the city tax collector for certain property levied upon for the non-payment of taxes.

A verdict was rendered for plaintiff below.

The facts are stated in the opinion.

Judgment of the circuit court affirmed, with costs.

B. J Brown, for plaintiff in error:

This is an action of replevin in the cepit, brought for the recovery of one pair of mares, mentioned in the declaration.

The action cannot be maintained unless the property was unlawfully taken.

The warrants annexed to the assessment rolls, it is admitted, were in due form of law; and the marshal was therein directed to collect the tax. But the circuit court, in effect, held the rolls to be void on their face, as against the defendant in error, for the reason, to adopt the language of the charge, that it "was only liable to pay specific taxes to the state," and was "not liable to assessment upon the rolls offered in evidence."

Is this a correct statement of the extent of its liability? Is it exempt from special assessments for public improvements, which, if not paid, are spread over the city rolls? See charter of East Saginaw, title 6, section 44: Laws of 1859, 1861, 1865; LeFevre v. Mayor of Detroit, 2 Mich. 586; Lockwood v. St. Louis, 24 Mo. 20.

If it be assumed that the property of the defendant in error was exempt from general taxation, this exemption did not appear on the face of the rolls. It depends upon the existence of extrinsic facts.

The warrant and rolls were regular upon their face, and trespass would not lie against the officer: Sheldon v. Van Buskirk, 2 N. Y., 477; Savacool v. Boughton, 5 Wend. 170; Patchin v. Ritter, 27 Barb. 34; Chegary v. Sheldon, 5 N. Y., 377; Abbot v. Yost, 2 Denio 87; Alexander v. Hoyt, 7 Wend. 89; Bennett v. Burch, 1 Denio 141.

Hence replevin in the cepit cannot be maintained: Richardson v. Reed, 4 Gray 441; Hopkins v. Hopkins, 10 Johns. 373; Barrett v. Warren, 3 Hill 348; Kellogg v. Churchill, 2 N. H., 412; Rextor v. Chevalier, 1 Mo. 345.

2. The statute expressly declares that "No replevin shall lie for any property taken by virtue of any warrant for the collection of any tax, assessment or fine, in pursuance of any statute in this state:" Comp. Laws, § 5008.

No refinement of argument can take the case at bar out of the provisions of this section: People v. Albany (Common Pleas), 7 Wend. 845; O'Reilly v. Good, 42 Barb. 421; Freeman v. Howe, 24 How. U.S., 440; Gardner v. Campbell, 15 Johns. 402; Stiles v. Griffith, 3 Yeates 82.

Webber & Smith, for the defendant in error:

1. The defendant in error being organized as a corporation, under chapter 71 of the Compiled Laws, was liable to pay a specific tax to the state (1 Comp. Laws, § 2088), which the statute declares "shall be in lieu of all other taxes upon all the property of said company." Therefore, if there was an assessment on the general tax rolls against the said defendant in error, it was void on its face, and afforded no authority for the marshal to seize the property of the corporation.

2. But it is claimed that the statute prohibits an action of replevin for property taken under a claim for a tax: 2 Comp. Laws, § 5008.

To this we reply:

a. The objection comes too late. It should have been taken by plea in abatement or by motion: The People v. Albany (C. P.), 7 Wend. 485; O'Reily v. Good, 41 Barb. 541.

By pleading to the merits, the defendant below consents to a trial on the merits.

b. The statute only prohibits the writ when property is taken for a tax in pursuance of a statute of this state. The property in question was not taken for a tax in pursuance of any statute of this state, but for one directly against the statute.

c. If we are correct in saying there was no tax against defendant in error on the rolls, then there was not even a pretense of authority for the seizure.

d. The plaintiff below, if the tax was void, might as well bring this writ to recover his property as a party whose goods are taken in execution could bring it to test the question of exemption, and this has often been done, and the court has never refused to inquire into the merits of such cases: Elliott v. Whitmore, 5 Mich. 532; Smalley v. Masten, 8 Mich. 529.

The case must now be disposed of on the merits, and if the court holds that there was no authority for the seizure, the marshal cannot have judgment for the amount of the tax, for it was void, and he had no special property--no lien--only a bare possession without right.

Suppose a party pays his tax, and then the collector should seize on pretense that it was not paid; or suppose no tax on the roll--or a case of double assessment and a seizure. Clearly such cases are not a taking of property for a tax in pursuance of any statute of this state, and the writ is not prohibited--neither is it the case now under consideration.

OPINION

Christiancy J.

This was an action of replevin brought by defendant in error, a corporation organized under chapter 71 Compiled Laws (to provide for the construction of train railways), and the acts of 1861 and 1863 amendatory thereof, against the plaintiff in error, who was marshal and collector of taxes of the city of East Saginaw, who had levied upon and taken the property in question under warrants attached to his rolls, to satisfy state and county taxes, as well as certain city and local taxes assessed against the defendants in error.

The affidavit on behalf of the company upon which the writ of replevin issued, was that the property "had not been taken for any tax, assessment or fine levied by virtue of any law of this state, nor seized under any execution or attachment against the goods and chattels of said East Saginaw city railway, liable to execution," etc.

By the act under which the defendant in error was incorporated, the corporation was required to pay annually a specific tax of one-half of one per cent on the whole amount of its capital paid in, which was to be paid to the state treasurer on the first Monday of July in each year. The specific tax (with which the assessor and collector of taxes had nothing to do, and no power to assess or collect) is by the statute declared to be "in lieu of all other taxes upon all the property of said company."

This is a public law, of which all are bound to take notice. We are aware of no law, and have been referred to none,...