Mead v. City of Lansing

• Decision Date: 13 May 1885
• Citation: 23 N.W. 444,56 Mich. 601
• Court: Michigan Supreme Court
• Parties: MEAD v. CITY OF LANSING.

23 N.W. 444

56 Mich. 601

MEAD v. CITY OF LANSING.

Supreme Court of Michigan

May 13, 1885

Error to Ingham.

M.V. &amp R.A. Montgomery, for plaintiff and appellant.

A.F Rouse and E.C. Chapin, for defendant.

COOLEY C.J.

Assumpsit is brought in this case to recover back taxes paid under protest. The facts developed on the trial are the following:

Prior to September 22, 1879, plaintiff was owner of lot 8, block 246, in the city of Lansing, which fronted 473 feet on Shiawassee street, and had on one end a brick grist-mill occupying 86 feet front. This mill, on the day named plaintiff conveyed to his son Fred.Mead. When Mr. Moore, the city assessor, was making the assessment for the ensuing year, he called on plaintiff and inquired if his property to be assessed was the same as the last year, and plaintiff told him it was, with the exception of the mill, which had been deeded to Fred. Mr. Moore asked plaintiff if he could give him the number of feet front which had been deeded, and he replied he could not, and Fred. would have to be called upon for the purpose. Mr. Moore did call upon Fred., who said he could not then furnish the information, but promised, as Moore testifies, to bring it to him at his office. He did not do so, however, and Moore, after again calling upon plaintiff and failing to learn how much had been conveyed, assessed the whole lot to the plaintiff. When plaintiff was called upon for the taxes he refused at first to pay, but finally paid, after levy upon goods and under protest, a sum determined by the proportion of street front which he still retained of the lot, being $278.25 of a total of $339. The evidence in the case is that the part conveyed to Fred., including the mill, is at least half the value of the whole lot, and some of the evidence is that it is two-thirds the whole value.

After the payment, the plaintiff served on the city treasurer a written demand for the repayment of the taxes, stating therein that "this demand is made for the reason that said sums were each and all paid by me under protest, with knowledge or belief that the demand was illegal, and after levy upon my goods, and under duress." The city treasurer replied in writing, stating that "not being able to get the views of our city attorney, I will simply refuse payment of said moneys on said request, believing that under the charter I have no right to pay over any moneys without a proper order from the city council, signed by its clerk and countersigned by its auditor, except in cases expressly authorized otherwise. See charter of the city."

This suit was instituted without any further demand, and without bringing the matter to the attention of the city council. The circuit judge held the action not maintainable, and directed a verdict for the city.

The question principally discussed in this case is whether it is a necessary prerequisite to any such suit that a claim for the refunding of the taxes should be presented...