Wolverine Steel Co. v. City of Detroit

• Decision Date: 27 March 1973
• Docket Number: No. 1,Docket No. 13407,1
• Citation: 45 Mich.App. 671,207 N.W.2d 194
• Parties: WOLVERINE STEEL COMPANY, a Michigan corporation, Plaintiff-Appellant, v. CITY OF DETROIT, a municipal corporation, Robert J. Temple, Treasurer, School District of the City of Detroit, a body politic inc., Defendants-Appellees
• Court: Court of Appeal of Michigan — District of US

Page 194

207 N.W.2d 194

45 Mich.App. 671

WOLVERINE STEEL COMPANY, a Michigan corporation, Plaintiff-Appellant, v. CITY OF DETROIT, a municipal corporation, Robert J. Temple Treasurer, School District of the City of Detroit a body politic inc., Defendants-Appellees.

Docket No. 13407.

Court of Appeals of Michigan, Division No. 1.

March 27, 1973.

Released for Publication May 15, 1973.

Ronald M. Rothstein, Karbel, Eiges, Rothstein & Karbel, Detroit, for plaintiff-appellant.

Michael M. Glusac, Corp. Counsel, Lawrence W. Morgan, Asst. Corp. Counsel, Detroit, John L. Belanger (for Bd. Ed.), Ostrowski, Wilson, Belanger & Boman, Detroit, for defendants-appellees.

Before J. H. GILLIS, P.J., and BASHARA and O'HARA, ^* JJ.

BASHARA, Judge.

This is an action for the return of certain personal property taxes paid by plaintiff. Appellant claims these taxes were assessed in violation of article 1, section 10 of the United States Constitution as interpreted by this Court in Detroit v. Kenwal Products Corp., 14 Mich.App. 657, 165 N.W.2d 875 (1968), leave to appeal denied, 381 Mich. 811 (1969), cert. den., 396 U.S. 833, 90 S.Ct. 87, 24 L.Ed.2d 83 (1970). The lower court dismissed for no cause of action and an appeal was taken.

The appellant corporation paid personal property taxes, on August 31, 1968, on imported goods owned by it and stored in unopened boxes at various warehouses. It did so, relying on information provided to its controller in April of 1967 by an auditor from the personal property division of the Board of Assessors of the City of Detroit. While the appellant believed that it was the 'efficient' cause of importation for the goods, see Detroit v. Kenwal Products, Supra, because of the information that had been provided to it, it did not believe that these goods were entitled to tax immunity. The payment was made without protest. See M.C.L.A. § 211.53; M.S.A. § 7.97.

In December of 1968, this Court released its opinion in the Kenwal case. The appellant then initiated the current action claiming that under the holding of Kenwal its goods were unconstitutionally assessed. It further claimed that, under M.C.L.A. § 211.53a; M.S.A. § 7.97(1), ¹ it could recover the money paid because the incorrect payment had been made as the result of a 'mutual mistake of fact made by the assessing officer and the taxpayer'.

Plaintiff relies on the case of Spoon-Shacket Co., Inc. v. Oakland County, 356 Mich. 151, 97 N.W.2d 25 (1959), for the proposition that equity should intervene whenever one party, public or private, seeks unjustly to enrich himself at the expense of another as a result of his own mistake. Further, that a taxpayer should be able to recover mistakenly or inadvertently levied taxes.

In that case, however, the plaintiff had attempted to pay the tax under protest and such protest was refused. The facts of the instant case reflect that no such protest was made.

On the facts as presented, contrary to the trial court's ruling, we believe that a 'mutual mistake' was made. However appellant is still not entitled to recovery under M.C.L.A. § 211.53a; M.S.A. § 7.97(1). An error made in determining the application of the United States Constitution to the tax laws of Michigan is not the type of mistake of fact required by this statute. M.C.L.A. § 211.53a applies to excess taxes paid because of a 'clerical error or mutual mistake of Fact made by the assessing officer and the taxpayer'. (Emphasis added.) When the words 'mutual mistake of fact made by the assessing officer and the taxpayer' are construed in the light of the other type of mistakes covered by this section, I.e., a 'clerical error', it seems clear that the statute was not intended to apply to mistakes in determining the application of the United States Constitution to the tax laws of Michigan. This would not generally be assumed to be within the province of a taxpayer and the tax assessor. We believe § 53a alludes to questions of whether or not the taxpayer had listed all of its property, or listed property that it had already sold or not yet received, etc.

This interpretation can be confirmed by looking at M.C.L.A. § 211.53b; M.S.A. § 7.97(2). This section is provided as an 'alternative' method of treating a 'clerical error or a mutual mistake of fact'. M.C.L.A. § 211.53b; M.S.A. § 7.97(2). This section reads in relevant part:

'As an alternative to section 53 (M.C.L.A. § 211.53; M.S.A. § 7.97), whenever there has been a clerical error or a mutual mistake of fact relative to the correct assessment figures, The rate of taxation or the mathematical computation relating to the assessing of taxes.' (Emphasis added.)

Statutes in Pari materia are to be construed together. Sections M.C.L.A. § 211.53a and M.C.L.A. § 211.53b both deal with procedures for correcting 'clerical errors' and 'mutual mistakes of fact'. M.C.L.A. § 211.53b lists simple errors in assessment, application of the proper rate, and mathematics as the types of 'mutual mistake of fact' it is intended to deal with. It does not list anything like the type of 'mutual mistakes of fact' claimed by the appellant to have been made here. Expressio unius est exclusio alterius. When certain things are specified in a law intention to exclude all others from its operation may be inferred. This would seem to be particularly true when the type of error that is claimed to have been made is generically different from those listed in the statute.

Case law in Michigan also indicates that the appellant may not recover, because if any mistake did occur it was not a mistake of 'fact'. In Upper Peninsula Generating Co. v. Marquette, 18 Mich.App. 516, 171 N.W.2d 572 (1969), the plaintiff had paid ad valorem taxes for the years 1965 and 1966. Sometime in 1967 the plaintiff became convinced that the taxes had been illegally assessed because the millage had been in excess of the 15-mill limitation imposed by article 9, section 6 of the Michigan Constitution of 1963, and had not received the approval of the electorate. The plaintiff sought recovery under M.C.L.A. § 211.53a as does the appellant here. This Court denied recovery holding that an error of the type made could not be characterized as a 'mistake of fact'.

The error made in the Upper Peninsula case was the same type of error that was made in the present case. In the Upper Peninsula case the City of Marquette levied taxes in violation of the Michigan Constitution. In the present case the appellees levied taxes in violation of the United States Constitution. In both cases the plaintiff and the defendants thought that the taxes were valid at the time they were paid. In the Upper Peninsula case this was held not to be an error of fact within the meaning of the statute. The same result must, therefore, be reached in the present case; particularly where the alleged advice was rendered more than 1 1/2 years prior to the entry of this Court's decision in Kenwal, supra.

If it were within our province to decide solely upon equitable relief we would agree with plaintiff that recovery should be allowed. However, M.C.L.A. § 211.53; M.S.A. § 7.97, provides a method for paying taxes under protest and §§ 53a and 53b of the statute previously quoted allow us specific limits within which to consider a refund where protest was not made at the time of payment.

Although, from the point of view of the appellant the result may seem harsh, the law in Michigan is clear. If a party believes that it is paying taxes illegally assessed and it does not pay them under protest as provided in M.C.L.A. § 211.53; M.S.A. § 7.97, the tax may not be recovered if it is later found to be void.

Affirmed.

O'HARA, Judge (dissenting).

I conceive the issue in this case somewhat differently than do my esteemed colleagues.

The majority...