Whitney v. City of Port Huron

• Decision Date: 13 November 1891
• Citation: 50 N.W. 316,88 Mich. 268
• Court: Michigan Supreme Court
• Parties: WHITNEY v. CITY OF PORT HURON.

50 N.W. 316

88 Mich. 268

WHITNEY v. CITY OF PORT HURON.

Supreme Court of Michigan

November 13, 1891

Error to circuit court, St. Clair county; ARTHUR L. CANFIELD Judge.

Action by Margaret Whitney against the city of Port Huron to recover taxes paid under protest. Judgment for plaintiff, and defendant brings error. Affirmed.

Frank T. Wolcott, (O'Brien J Atkinson, of counsel,) for appellant.

Frank Whipple, for appellee.

MORSE J.

The plaintiff sues to recover taxes paid by her under protest on a special assessment levied for the paving of Pine Grove avenue, in the city of Port Huron. She had judgment in the court below, the verdict of the jury being directed by the circuit judge in her favor. The first objection to this judgment is that the plaintiff had no right to sue at the time she did. The charter of Port Huron in force at the time this suit was commenced provides that "it shall be sufficient bar and answer to any action or proceeding in any court for the collection of any demand against said city that it was never presented to the council, or, if presented, that the suit was brought before the council had reasonable time to investigate and pass upon it." Local Laws 1885, p. 496. The plaintiff presented her claim to the common council, and it was read at a meeting of that body held December 6, 1886. Meetings of the council were afterwards held December 13th, December 20th, January 3d, and January 10th, at which meetings no action was taken in regard to plaintiff's claim. The plaintiff brought suit January 12, 1887, and waited long enough before she did it.

It is also claimed that her payment of the tax was voluntary. The tax was paid April 2, 1886, and across the face of the receipt was written as follows: "Paid under protest, to protect the property from being sold, and on account of taxes being illegal." The city treasurer had advertised the plaintiff's property for sale, and she had the right to presume that he would proceed with the sale. The fact that the sale would have conveyed no title to the purchaser on account of the illegality of the tax, or that she could have removed the cloud upon her title caused by such sale by legal proceedings, had no bearing upon her right to pay the tax under protest, and thereby stop the sale. Nor was it any the less an involuntary payment under the law. If because a tax is illegal, and a sale of property under it would be void, a payment to prevent the seizure or sale of one's property cannot be considered an involuntary payment, then our statute providing for the payment of taxes under protest would be of no force or use. If the citizen's property is threatened with seizure under a tax-warrant, or his real estate is advertised for sale to collect delinquent taxes, he is equally in both cases, entitled to free his property by a payment of the tax under protest, and such payment will not be considered voluntary. It was held in Detroit v. Martin, 34 Mich. 170, that one who has full knowledge of all facts, being conclusively presumed to know the law, is presumed to know that an assessment, laid under a statute which is unconstitutional and void, cannot be made the basis of a sale that could constitute any cloud upon his title, and therefore to know that he could not be injured by it; and that a payment of a tax under protest, in such a case, where no seizure of goods or of the person had been made or threatened, and where the officer had no authority to compel payment otherwise than by a sale of land, which could injure no one, would not be other than a voluntary payment, as a protest would not change the character of the payment. It was held also that a sale of the land under such circumstances would not create a cloud upon the owner's title. This may be good law when applied to proceedings under an unconstitutional enactment, which is no law, and is held to confer no rights upon any one, as all must be presumed to know that it is unconstitutional and void; but it cannot be applied to cases where the statute under which the proceedings to levy the tax are taken, is constitutional, and where the illegality of the tax is claimed from irregularities or defects in the statutory proceedings. If it were so, it would require of the land-owner a greater knowledge of the law than attorneys, or even courts, possess. For instance, in the present...