Thomas v. Gain

• Decision Date: 25 October 1876
• Citation: 35 Mich. 155
• Court: Michigan Supreme Court
• Parties: Nahum E. Thomas and others v. James Gain

35 Mich. 155

Nahum E. Thomas and others v. James Gain

Supreme Court of Michigan

October 25, 1876

Heard October 12, 1876 [Syllabus Material] [Syllabus Material]

Appeal in Chancery from St. Clair Circuit.

Case remanded, with leave to the complainant to amend by adding the city as a formal party, and with directions to enter final decree for complainants when the amendment made.

C. I Walker, for complainants. The statute is void, because it authorizes the imposition of a tax without distinctly stating the object to which it shall be applied: Const., Art. XV, § 14; 1 Comp. L., p. 74.

The cost of the sewer is the measure of the tax, but that cost has already been fully paid. The money is not, therefore, to be applied to the construction of the sewer, or to the payment for its construction.

What is to be done with the money? The law is silent. This, we submit, is fatal. The object doubtless was to pay this money into the public treasury, but the requirement of the constitution is imperative. That object should be stated in the law itself, not left to the inference of the officer who shall collect the money.

The law is also void because it violates first principles in excluding the tax payer from a hearing, and from all opportunity of redress in case of error or wrong in the assessment. The notice required was a sham and a cheat. There was no review. In all our systems of taxation this opportunity for a hearing is given: 1 Comp. L., § 986; Laws of 1859, pp. 997, 1002; Hoyt v. Saginaw, 19 Mich. 45; Butler v. Supervisors, 26 Mich 29; Cooley on Const. Lim., 381, notes; Cooley on Taxation, 265-6, 232.

We submit further that it is void because it establishes an arbitrary and unequal rule of apportionment, without reference to the cash value of the property to be assessed, or the benefits conferred by the improvement.

It is not denied that the legislature may fix a proper rule of apportionment, but it must have some ground of justice. Thus, unquestionably, an assessment in proportion to the benefits conferred is valid: Hoyt v. Saginaw, 19 Mich. 43; Cooley on Taxation, 448. So it has been held that in improving a street the expense may be apportioned according to the frontage, or according to the value of the property, as the legislature may determine: Cooley Const. Lim., 504-7; Cooley on Taxation, 451-2; Motz v. Detroit, 18 Mich. 495; but we submit a tax of this kind, apportioned by the area, is unjust and unequal.

The gross inequality of this rule in the given case can be best shown by reference to the plat, which shows that portions of the property are already accommodated by the Ontario street sewer, which was paid for at the public expense. Other portions are so situated that they can receive little or no benefit from the sewer in question, while other property will be greatly benefited. Its inequality is conceded.

This mode of assessment is quite as objectionable as would be the charging of the expense of grading to each lot in the front of which it was made: Clapp v. City of Hartford, 35 Conn. 79; State v. McClosky, 37 N. J., 390; Downer v. Boston, 7 Cushing 277; Wright v. Boston, 9 Cushing 236; Cooley on Taxation, 453.

W. F. Atkinson and W. T. Mitchell, for defendant. The only serious question presented by the bill and proofs, that occurs to us, is, whether the act authorizing the reassessment was a valid law under the constitution. Similar legislation was held to be valid In re Van Antwerp et al., by the court of appeals, as stated in Albany Law Journal of Dec. 26, '75, at page 410. We do not find it yet reported.

Possibly it may be urged that this act does not make sufficient provision for review and correction, and that the notice was deficient in that respect. We, however, insist that review and correction are to be fairly implied from the time the assessment was to remain in the clerk's office. There could be no other purpose for the time given, and all persons affected by it must have so understood it and acted upon it. But it is clear from the case no one appeared for any purpose and no review or correction was sought.

But even if the law is unconstitutional, or imperfect, or the proceedings irregular, then, we submit, the complainants have not stated or proved a case entitling them to an injunction, the only relief sought.

The bill charges that all the proceedings were "wholly illegal and void," and gives reasons, and after stating what property is assessed, states that defendant, as city marshal (or so claiming), "threatens and intends to collect the amount of said several assessments by a levy or sale of the personal property, goods and chattels of complainant," and nowhere charges that their lands would be sold or any cloud created on their titles.

Levy upon or sale of personal property, unless irreparable injury would be done, and this is not stated, does not call for the interposition of a court of equity by injunction. Their legal remedy was ample and sufficient: Cooley on Taxation, 528; Youngblood v. Sexton, 32 Mich. 406.

It will be perhaps asserted that the bill charges that Gain pretends that the taxes are liens upon the lots described. And the defendant admits they are liens upon the lots, and he would have collected from their personalty.

We submit that there is no cause for injunction until there is some effort to enforce the liens.

But in view of the whole case we cannot see why the assessment and taxes are not legal, nor any such irregularity as should invalidate the taxes. And that even if the bill was to prevent a cloud upon title, it and the proofs do not make out a sufficient case.

OPINION

Cooley, Ch. J.

The principal question in this cause is, whether it is competent to provide by law that sewer taxes in a city shall be assessed upon the lots and lands benefited in proportion to their superficial area. A subordinate question is, whether, conceding such an assessment to be legal, it can be lawfully made without giving the parties concerned an opportunity to be heard.

The assessment in question was laid under act No. 241 of 1875.--Local Acts 1875, p. 3. The second section of that act provides that before the assessment shall be made, the common council shall, by resolution, declare what lands, lots, and premises are and have been benefited by the construction of the sewers respectively, and such lots, lands, and premises are then to constitute the assessment district for the purpose of assessing the cost and expense of such sewers respectively. By the fourth section it is provided that the assessment shall be made on the lots, lands, and premises within the district "in proportion to the number of superficial feet therein." It is further provided that the assessment roll, when completed, shall remain on file with the city clerk for at least two weeks, at the end of which time "the same shall be a valid lien and assessment upon and against the several lots and descriptions of land." No hearing on the assessment is provided for.

The principal objection made to the assessment is, that it is not apportioned among the parties benefited upon any principle recognized in the law; that it is made on a basis purely arbitrary, and consequently cannot be justified as an exercise of the taxing power. It is not claimed that an assessment by benefits would be inadmissible, but it is insisted that an assessment by the area of lots, irrespective of proportionate benefits, is nothing but a levy of arbitrary exactions, and therefore unconstitutional.

The proper method of levying assessments for sewers has not been much discussed by the courts. In England they have generally been laid in proportion to benefits received, estimated according to the yearly value of the lands within the district.--Rooke's Case, 5 Rep. 100; Masters v. Scroggs, 3 M. & S., 447; Netherton v. Ward, 3 B. & Ald., 21; Stafford v. Hamston, 2 B. & B., 691; Soady v. Wilson, 3 Ad. & El., 248; Metropolitan Board of Works v. Vauxhall Bridge Co., 7 El. & Bl., 964. In this country, assessments for sewers, and also for drains, have generally been levied upon an estimate of special benefits.--Reeves v. Treasurer of Wood Co., 8 Ohio St. 333; Sessions v. Crunkilton, 20 Ohio St. 349; Draining Co. Case, 11 La.Ann. 338; O'Reiley v. Kankakee Draining Co., 32 Ind. 169; Wright v. Boston, 9 Cush. 233: Springfield v. Gay, 12 Allen 612; Brewer v. Springfield , 97 Mass. 152; Cone v. Hartford, 28 Conn. 363; Commonwealth v. Woods, 44 Pa. 113. It was decided in Connecticut, that an arbitrary assessment by the frontage of lots was unreasonable and invalid.--Clapp v. Hartford, 35 Conn. 66; but in Pennsylvania, assessments which charged upon lots a portion of the costs of sewers, not to exceed a certain maximum per foot front, have been sustained.--Lipps v. Philadelphia, 38 Pa. 503; Philadelphia v. Tryon, 35 Pa. 401.

The assessment of sewer taxes by the superficial area is quite unusual. In the southwest, levee taxes are sometimes assessed in that proportion, and the right to make such assessments has been sustained.--Daily v. Swope, 47 Miss. 367; Alcorn v. Hamer, 38 Miss. 652; Williams v Cammack, 27 Miss. 209; Smith v. Aberdeen, 25 Miss. 458; McGehee v. Mathis, 21 Ark. 40; Wallace v. Shelton, 14 La.Ann. 498. In the latter case it is intimated that while no basis of assessment which could be fixed upon would be absolutely just, yet as it costs as much to protect one acre of land from overflow as it does to protect another, the apportionment by the area is not presumptively unjust. A like decision has been made in Missouri; the court's attention being directed apparently only to the question whether the assessment was such taxation as under the constitution was required to be apportioned according to the value of property.--...