Turner v. Hutchinson

• Decision Date: 28 May 1897
• Citation: 113 Mich. 245,71 N.W. 514
• Court: Michigan Supreme Court
• Parties: TURNER, AUDITOR GENERAL, v. HUTCHINSON ET AL.

71 N.W. 514

113 Mich. 245

TURNER, AUDITOR GENERAL, v. HUTCHINSON ET AL.

Supreme Court of Michigan

May 28, 1897

Appeal from circuit court, Muskegon county, in chancery; Fred J Russell, Judge.

Petition by Stanley W. Turner, auditor general, for the sale of delinquent tax lands. James Hutchinson and others filed objections. Decree for contestants, and petitioner appeals. Reversed.

Fred A. Maynard, Atty. Gen., and H. L. Delano City Atty. (Bunker & Carpenter, of counsel), for appellant.

Arthur Jones, Smith, Nims, Hoyt & Erwin, and P. W. Niskern, for appellees.

GRANT J.

This is the usual petition by the auditor general for the sale of delinquent tax lands. The contestants filed 20 objections against the taxes. The assessment was held void, and the petition dismissed as to the contestants, for two reasons namely: (1) The assessor did not make or cause to be made the assessment rolls and the tax rolls of the city of Muskegon, as required by the charter of the city; and (2) the assessor did not, within the time and in the manner required by the statute and the charter of said city, return the lands to the assessor of said city as delinquent for unpaid city, school, library, one mill, and schoolhouse taxes, and verify such returns in the manner provided by law. The tax involved amounts to about $9,000. Section 99 of the tax law of 1893, under which this assessment was made (page 399), is as follows: "No tax assessed upon any property, or sale therefor, shall be held invalid by any court of this state on account of any irregularity in any assessment, or on account of any assessment or tax roll not having been made or proceeding had within the time required by law, *** or on account of any other irregularity, informality or omission, or want of any matter or form or substance in any proceeding that does not prejudice the property rights of persons whose property is taxed; and all proceedings in assessing and levying taxes and in the sale and conveyance therefor, shall be presumed by all the courts of this state to be legal until the contrary is affirmatively shown."

1. In preparing the assessment and tax rolls the assessor first listed and valued this taxable property on a single roll, which was submitted to the board of review, and was by that board reviewed and corrected. The assessor then made two copies, which were also submitted to the board of review, and were approved and adopted by the board. On one of these copies he spread the city and school tax, and attached to it his warrant, and then delivered the roll and warrant to the treasurer, whose duty it was to collect the taxes. In November the treasurer made statements of the uncollected taxes, real and personal, on that roll, and delivered them, with the roll itself, to the assessor. He failed to verify the statements until December, 1894, when he swore to an affidavit, and attached it to the statements. The provisions of the city charter covering the points raised are in section 6, 10, 11, and 12 of title 10 of the charter. It is unnecessary to quote them. The defects consist in this: (1) That the assessor attached his warrant to the original tax roll, and delivered it to the treasurer, instead of delivering a copy as the charter required; and (2) that the treasurer, in making his return, did not verify his statements of uncollected city and school taxes. No claim is made, either in the objections filed to the petition, or in the testimony, or in the arguments of counsel, that the taxes are unjust of excessive. Contestants are not before the court offering to bear their just proportion of the public burden. On the contrary, they seek to avoid the payment entirely because officers upon whom is imposed the duty to perform certain acts have not performed them in strict accordance with the requirements of the law. It is too clear to require extended argument that the fact that the collector used the original tax roll instead of a copy, and the failure to verify a statement at the time required by the law, do not affect the justice of the tax, nor prejudice the property rights of these contestants. If these defects are not covered and cured by the curative statute above cited, it is difficult to note any defect which would be cured by it.

The learned counsel for the petitioner have presented able arguments contrasting the position taken by courts of law and of equity under the earlier tax laws. We have not time to discuss the interesting subject. It is sufficient to say...