Thompson v. Auditor Gen., Motion No. 67

• Decision Date: 01 March 1933
• Docket Number: Motion No. 67,Jan. Term.
• Citation: 261 Mich. 624,247 N.W. 360
• Parties: THOMPSON v. AUDITOR GENERAL.
• Court: Michigan Supreme Court

261 Mich. 624

247 N.W. 360

THOMPSON

v.AUDITOR GENERAL.

Motion No. 67, Jan. Term.

Supreme Court of Michigan.

March 1, 1933.

Proceeding by Theodore A. Thompson for a writ of mandamus against John K. Stack, Jr., to compel defendant as Auditor General of the state to furnish for publication the descriptions of real estate to be sold in Ingham County in 1933 for delinquent taxes.

Writ granted.^*

Argued before the Entire Bench.

CLARK and SHARPE, JJ., dissenting.E. R. Boyles, of Charlotte, and Geo. G. Hunter, of St. Johns, for plaintiff.

Patrick H. O'Brien, Atty. Gen., Walter A. Kirkby, Asst. Atty. Gen., and Prentiss M. Brown, Sp. Asst. Atty. Gen., for defendant.

POTTER, Justice.

Plaintiff seeks mandamus against the auditor general to compel him to furnish for publication the descriptions of real estate deliquent for taxes, to be sold in Ingham county in 1933.

1. It is objected that, in effect, this is a suit against the state, and may not be maintained.

‘No doctrine is better settled than that the state cannot be compelled to respond in any court, unless it has conferred such a privilege on suitors.’ Auditor General v. Van Tassel, Treasurer, 73 Mich. 28, 40 N. W. 847, 848.

It was settled in Chisholm v. Georgia, 2 Dall. 419, 1 L. Ed. 440, that a state might, under the Judiciary Act of 1789, be sued by the citizens of another state. Mr. Justice Iredell dissented from that holding. His views were later embodied in the Eleventh Amendment to the Constitution of the United States, which was soon after adopted. The history of this controversy is discussed in Hans v. Louisiana, 134 U. S. 1, 10 S. Ct. 504, 33 L. Ed. 842.

(a) Actions or suits against individuals who are officers of the state, to recover property, compel the performance of a duty, and prevent a wrongful deprivation of rights are not suits against the state, within the meaning of the Eleventh Amendment to the Constitution of the United States. United States v. Lee, 106 U. S. 196, 1 S. Ct. 240, 27 L. Ed. 171;United States v. Peters, 5 Cranch, 115, 3 L. Ed. 53;Meigs v. McClung, 9 Cranch, 11, 3 L. Ed. 639;Poindexter v. Greenhow, 114 U. S. 270, 5 S. Ct. 903, 962,29 L. Ed. 185; Ex parte Young, 209 U. S. 123, 28 S. Ct. 441, 52 L. Ed. 714, 13 L. R. A. (N. S.) 932, 14 Ann. Cas. 764;Hopkins v. Clemson Agricultural College, 221 U. S. 636, 31 S. Ct. 654, 55 L. Ed. 890,35 L. R. A. (N. S.) 243.

(b) ‘The objections to proceeding against State officers by mandamus or injunction are: first, that it is, in effect, proceeding against the State itself; and, secondly, that it interferes with the official discretion vested in the officers. It is conceded that neither of these things can be done. A State, without its consent, cannot be sued by an individual; and a court cannot substitute its own discretion for that of executive officers in matters belonging to the proper jurisdiction of the latter. But it has been well settled, that, when a plain official duty, requiring no exercise of discretion, is to be performed, and performance is refused, any person who will sustain personal injury by such refusal may have a mandamus to compel its performance; and when such duty is threatened to be violated by some positive official act, any person who will sustain personal injury thereby, for which adequate compensation cannot be had at law, may have an injunction to prevent it. * * * In either case, if the officer plead the authority of an unconstitutional law for the non-performance or violation of his duty, it will not prevent the issuing of the writ.’ Board of Liquidation et al. v. McComb, 92 U. S. 531, 541, 23 L. Ed. 623;Pennoyer v. McConnaughy, 140 U. S. 1, 11 S. Ct. 699, 35 L. Ed. 363.

If cases of mandamus and injunction may be brought in the federal courts in the cases and under the circumstances indicated, in the face of the Eleventh Amendment to the Constitution of the United States, there can be no reason why as liberal a rule ought not to prevail in the courts of the state.

2. It is contended this suit, if maintainable at all, is one maintainable only in the

circuit court of Ingham county in chancery, and this court has no original jurisdiction in the premises. If plaintiff has a contract with the state for the publication of the description of the lands to be sold in 1933 for delinquent taxes in Ingham county, and it is the statutory duty of defendant to furnish such descriptions of deliquent lands to him for publication, then plaintiff may be entitled to mandamus to compel the delivery of such statements of delinquent tax lands; but he is expressly prohibited by statute from going into the circuit court for mandamus.

‘No circuit court shall have jurisdiction to issue a writ of mandamus against any state officer.’ Section 15186, Comp. Laws 1929.

By section 4 of article 7 of the Constitution, the Supreme Court has power to issue writs of mandamus and to hear and determine the same. This case is properly brought in this court, and could not be brought and maintained in the circuit court for Ingham county.

3. It is claimed plaintiff has no contract with the auditor general and consequently no standing in court.

‘The auditor general shall prepare and file in the office of the county clerk in each county in which lands are to be sold under the provisions of this act, a petition addressed to the circuit court for said county in chancery, stating therein by apt reference to lists or schedules annexed thereto a description of all lands in such county upon which taxes have remained unpaid. * * * Such petition shall pray a decree in favor of the state of Michigan against said land for the payment of the several amounts so specified therein, and in default thereof that such lands be sold. It shall be signed by the auditor general and need not be otherwise verified, and shall be deemed equivalent to a bill in chancery to enforce the lien for such taxes, interest and charges, averring their validity, that they have not been paid, and praying for a sale to pay such lien. * * * The petition shall be in a substantial record book, with the lists of lands and taxes annexed following the same therein. * * * The word ‘petition’ shall be construed to include the lists annexed thereto.' Section 3452, Comp. Laws 1929.

‘As soon as the auditor general's petition, with a list of delinquent tax lands is filed with the register in chancery under the provisions of section sixty-one (61) of this act,’ it is the duty of the county treasurer to notify the owners of each piece or parcel of land subject to sale of such impending sale. Section 3453, Comp. Laws 1929.

The form of the order of publication to be entered by the circuit judge upon the filing of the petition of the auditor general for the sale of lands for delinquent taxes is prescribed by statute, and recites the petition, ‘praying for a decree in favor of the state of Michigan, against each parcel of land therein described.’ Section 3454, Comp. Laws 1929.

‘The newspapers in which such order and petition are to be published shall be designated by the auditor general on or before the first (1st) day of September in each and every year, and not afterwards' etc. Section 3455, Comp. Laws 1929.

‘The auditor general shall cause a copy of said order and a copy of said petition to be published at least once in each week for four (4) successive weeks next prior to the time fixed for the hearing thereof, in some newspaper published and circulating in the county where such petition is filed, to be selected by the auditor general.’ Section 3458, Comp. Laws 1929.

Other parts of the tax statutes provide for a judicial hearing and for a final decree for the sale of each parcel of land described in the petition found to be subject to sale. Section 3459, Comp. Laws 1929.

It is plaintiff's claim his newspaper was designated by the auditor general as the one in which such petition and order, together with the description of the lands to be sold for delinquent taxes, was to be published in Ingham county in 1933, and that such designation and his acceptance thereof constitutes a contract with the auditor general. It is contended plaintiff has no contract. A contract has been defined as an agreement upon a sufficient consideration to do, or not to do, a particular thing. It has been otherwise defined. 13 C. J. p. 237. The auditor general designated plaintiff's newspaper as the one to publish the notice of tax sales in 1933 in Ingham county. Plaintiff accepted this designation, and is ready, able, and willing to publish the petition and order, together with the lists of lands to be offered for sale as required by law. It is claimed plaintiff has no contract because no price for the printing was set. 3 Comp. Laws 1929, § 15474, provides: ‘For publishing any legal notice or any order, citation, summons, or any other proceedings or advertisement required by law to be published in any newspaper, the cost of publishing such advertisement shall not exceed the rate of one (1) dollar and twenty (20) cents per folio for the first (1st) insertion and sixty (60) cents per folio for each subsequent insertion: Provided, That any newspaper publishing for the state of Michigan any such advertisement other than tax lists and those arising in the course of judicial proceedings shall be permitted to charge therefor its regular established commercial rate in effect at the time such notice or advertisement is published.’

This statute fixes specific charges in some cases, and permits charging the regularly established commercial rates in other cases; but 1 Comp. Laws 1929, § 3457, as amended by Act No. 19, Pub. Acts 1932, Extra Sess., provides: ‘The cost of such advertising shall in no case exceed the sum of forty cents for each description of lands so advertised and sold: Provided, That in case there are less than four hundred descriptions so advertised in any county, there shall be paid the further sum of one dollar and twenty cents per folio for the first insertion and...