Thompson v. City of Detroit
| Decision Date | 01 October 1897 |
| Citation | 114 Mich. 502,72 N.W. 320 |
| Court | Michigan Supreme Court |
| Parties | THOMPSON ET AL. v. CITY OF DETROIT. |
Error to circuit court, Wayne county; George S. Hosmer, Judge.
Action by William G. Thompson and another, trustees of the Edmund A Brush estate, against the city of Detroit. There was a judgment for plaintiffs, and defendant brings error. Affirmed.
Charles Flowers and Arthur Webster, for appellant.
Henry M. Duffield and Divie B. Duffield, for appellees.
Plaintiffs are the trustees of the Edmund A. Brush estate, and bring this action to recover from the defendant the amount of $1,199.55 paid for taxes under protest. The tax or assessment was upon certain real estate of the Brush estate, for the opening and widening of Randolph street, in the city of Detroit. Plaintiffs recovered in the court below.
There are but two questions involved: (1) The validity of the tax (2) whether the payment was voluntary. There is no dispute of fact. It appears that, at the time the assessment roll was prepared, Theodore Rentz, Fred E. Farnsworth, and William T Dust were assessors, and caused the roll to be prepared. On July 22, 1892, the roll, without the signatures of the assessors, or any of them, and without any certificate whatever, was transmitted to the common council for confirmation, and on July 26th an order of confirmation was entered on the records of the council. On the same day a certificate was added to the roll, and signed by the assessors. It was held by the court below that the council acted without authority in confirming the roll before a certificate of the assessors was attached; that the certificate subsequently made by the assessors on July 26th was insufficient, because it did not recite the different steps taken by the assessors in making the assessment. This certificate is as follows: "We hereby approve this roll and certify to its correctness." This was the only certificate ever attached to the roll; the only writing accompanying the roll as it was transmitted to the council being a letter from Theodore Rentz, president of the board of assessors. The charter of the city of Detroit provides for the appointment by the common council of a board of assessors, consisting of three persons. In cases of street improvement the board is to make out a list of lots or parcels of real estate constituting a local assessment district, with names of the owners, the length of lot fronting directly on the improvement, and assess the costs and expenses of the work chargeable upon the property, etc. When the assessment roll is completed the board is to give notice, by at least five publications in the city paper, that such roll is completed, and will remain in its office 12 days from first publication of such notice, for the inspection of all concerned. It is further provided that Chapter 11, � 37, Charter of Detroit of 1893. Whether or not the board of assessors made the proper roll does not appear from the record before us. It does appear that the roll had not been signed as provided by the charter at the time it was placed in the hands of the common council. This was a necessary prerequisite to a proper and legal assessment roll. The council had no method of judging what had been done by the assessors, except by this certificate. That body was to examine the roll made and signed by the assessors, and, if found correct, approve it; and, when so approved, the taxes were to become a lien. This roll therefore had no effect as an assessment roll, and the court below was correct in so holding. Warren v. City of Grand Haven, 30 Mich. 24. Under the charter of the city the assessment for such street openings becomes a lien upon the land after the expiration of 30 days from the time of the confirmation of the roll by the common council, or at least it becomes a lien when the roll is placed in the hands of the receiver of taxes. The contention of counsel for the plaintiffs is that, this assessment having become a lien at the time it was paid, the payment cannot be said to be voluntary. The court was of this opinion, and found in favor of plaintiffs. The claim of counsel for defendant is that coercion or duress which will render a payment of taxes involuntary must, in general, consist of some actual or threatened exercise of power possessed or believed to be possessed by the party exacting or receiving the payment over the person or property of another, from which the latter has no other means of immediate relief, except by making payment, and that no such fact exists in the present case. Judge Cooley, in his work on Taxation (page 805), lays down the rule as follows: "(1) The tax must have been illegal and void; (2) it must have been paid under compulsion, or the legal equivalent; (3) it must have been paid over by the collecting officer, and have been received to the use of the municipality." Judge Cooley adds: "Where the statute gives an action, it may not be necessary that all these conditions should concur, since the statute may dispense with one or more of them." Section 53, Act No. 206, Pub. Acts 1893, provides, as to the payment of general taxes under protest, that: ...
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