ELDREDGE & ELDREDGE THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW GIFT OF Si Idredge THE LAW OF TAXATION IN MICHIGAN THE LAW OF TAXATION IN MICHIGAN INCLUDING GENERAL TAXATION, DRAIN TAXES SPECIAL ASSESSMENTS, PLEADING PRACTICE, FORMS By WILLIS BALDWIN in Author of PERSONAL INJURIES IN MICHIGAN DETROIT DRAKE LAW BOOK COMPANY 1909 T ' Copyright. 1909. Drake L.w Book Co. PREFACE As each state grows older, it gradually develops its statute laws and its own line of decisions interpreting them. Therefore foreign decisions become of less weight, not only because of the variations of the statutes upon which such decisions are based, but also because of the precedents established by the appellate court of the home state. Michigan as a state has developed her own tax laws during a period of over fifty years and our Supreme Court has very extensively interpreted them. It has been the aim in the present work to collate these decisions. Xo attempt has been made to suggest what the law should be, but rather to show what it is at the present time. In an attempt to state principles as they were authori- tatively delivered, the language of the text, without the use of quotation marks, is taken very freely from the opinions. WILLIS BALDWIN. Monroe, Aug. 10, 1909. 709700 TABLE OF CONTENTS PART ONE GENERAL TAXATION CHAPTER I. THE TAXING POWER. Section. Page. 1. Taxing Power of State 1 2. Taxing Acts not Contracts 3 3. Taxing Power of Municipalities 4 4. Purpose of a Tax 6 5. Not to Accumulate Money 9 6. Internal Improvements 9 7. Public Buildings 10 8. Public Lighting and Water 10 9. Bonuses for Railroads 12 10. Bonuses for Factories 13 11. Street Railways 14 12. Uniformity of Tax 14 13. Uniformity as Affected by Location 16. ] 4. Double Taxation 17 15. License 17 16. Uniformity of Charge 21 17. Interstate Commerce 22 l B, Ordinances Reasonable 4 29. License for Trading ! 27 20. Liquor License 29 21. Prescribing Limits of Sale 32 22. Ex Post Facto Regulations 3.1 23. The Liquor Dealer 33 24. The Liquor Dealer's Bond 36 25. Collection and Payment of License 39 26. License for Ferries 40 CHAPTER II. KINDS OF TAXATION. 27. Institute Fees 41 28. Tolls , 42 TABLE OF CONTENTS VIII Section. Page. 29. Ad Valorem Tax 44 30. Specific Taxes 45 31. Express Companies 45 32. Railroad Companies 46 33. Union Depot Companies 49 34. Railroad Companies, Exemption from Taxation 50 35. Street Railway Companies 5ii 36. Insurance Companies 53 37. Telegraph and Telephone Companies 54 39. Tax upon Privileges 54 39. Protective Taxation 55 40. Inheritance Tax 56 41. Internal Revenue 60 CHAPTER III. TOWNSHIP ORGANIZATION. 42. Organization of Townships 61 43. Collateral Attack of Municipal Organization 62 44. De Facto Officers 63 45. De Facto Officers and Intruders 65 46. De Facto Tax Officers 67 47. Deputy Officers 68 48. The Supervisor 68 49. The Supervisor, Suit for Taxes 71 50. Change in Roll by Supervisor 71 CHAPTER IV. THE ASSESSMENT AND LOCUS OF PROPERTY. 51. Real Estate 73 52. To Whom Real Estate Assessed 75 53. Homestead Lands. Designation of 76 54. Homstcad Lands. Interest in 81 55. Corporate Realty 82 5 160. Statutory Protest 161. Demand' for Tax 162. Tax Receipts 2Jj 163. Levy 164. Levy Upon Railroad Property 165. Sale Under Levy ">32 CHAPTER X. ACCOUNTING WITH COLLECTOR. 166. Accounting with Collector 233 167. Accounting between School Districts 235 168. Accounting with County Treasurer 235 169. Accounting between Townships 236 170. Accounting between Township and County 239 171. Accounting between State and County 239 172. County Treasurer and State Taxes 241 173. County Treasurer and Miscellaneous 243 174. Collector's Return of Taxes 244 175. Warrant of County Treasurer 247 176. Certificate of County Clerk 248 177. Return to Auditor General 248 178. Taxes, when Sale is Set Aside 251 179. Right to Pay Delinquent Taxes 253 CHAPTER XI. THE SALE AND PURCHASERS. 180. Amount Sold 256 181. Fraud in Sale 257 182. Several Parcels Sold as One 238 183. Who May Make Sale 259 184. Purchasers in General 259 185. Occupant as Purchaser 262 186. Tenant in Common as Purchaser 263 187. Life Tenant as Purchaser 266 188. Purchaser Holding Land Contract 266 189. Mortgagee as Purchaser 26fl 190. Lessee as Purchaser.. v ... 269 TABLE OF CONTENTS XII Section. Page. r.i I. Husband and Wife as Purchasers 269 192. Public Officers as Purchasers 270 193. Payment, etc 270 194. Caveat Emptor 271 195. Surplus -21:1 196. State Tax Lands 272 197. Purchase of State Tax Lands 273 108. Period of Redemption 278 199. Sale of Redemption for Less Than Taxes Due 283 200. ' Refunding of Taxes by Owner 284 201. Cumulative Tax Titles 286 CHAPTER XII. THE DEED AND ITS INCIDENTS. 202. Execution 287 203. Recitals 287 204. Description 288 205. Validity 289 206. Operation 291 207. Title that Passes '. 293 208. Effect of Tax Sale under Old Law 295 209. Presumptions from Deed 295 210. Who May Attack Deed 297 211. Lien by Void Tax Title Holder 298 212. Reimbursement of Defeated Purchaser 298 213. Reimbursements for Improvements 301 CHAPTER XIII. STATUTES AND ESTOPPEL. 214. Limitations. Deed Conclusive 303 215. Limitations In Re Tax Deeds 306 216. Limitations In Re State Homestead Lands 309 217. Statute of Limitations, Accounts 312 218. Construction of Statutes 313 219. Legalizing Acts 314 220. Legislative Allowance of Claims 315 221. Retroactive Statutes 316 222. Healing Acts 316 223. Healing Acts. When They Do Not Apply 319 224. Title of Acts ". 320 225. Estoppel 321 226. Estoppel on Drains 322 CHAPTER XIV. RECORDS. 227. Records 325 228. Missing Records 326 Mil TA lU.l. OF CONTENTS Section. Page. 229. Qualification of Officers 326 230. Absence of 326 231. What Are 232. Evidence of 329 233. Time of Meeting 234. Collateral Attack of 330 235. Amendments of 330 236. Signing, and Signatures tc 331 237. Mistakes in 332 238. Presumptions as to Assessments 332 239. Presumptions as to Collection 332 240. Presumption of Existing Records 333 241. Presumptions 333 PART TWO DRAIN TAXES CHAPTER XV. JURISDICTION AND EX PARTE PROCEEDINGS. 242. Qualification of Drain Commissioner 336 243. Appointment of . Special Drain Commissioner 339 244. Jurisdiction ;$41 245. Jurisdiction. County and Township Drains 343 246. Jurisdiction. Public Health 344 247. Jurisdiction. Board of Health 345 248. Action on One Petition 345 249. Description in Petition 340 250. Signers to Petition 347 251. Recitals in Petition 350 Form of Petition for Drain 351 252. Surplusage :n Petition 352 253. Petition to Deepen, Widen or Clean Out 352 Form of Petition for Cleaning Out Drain 353 254. Change of Drain 354 255. f ntcrsertion of Drains 3.*> I 256. Survey 35:> 257. First Order 356 Form of First Order 358 258. Necessity of Drain 359 259. Release of Right of Way 361 Form for Release of Right of Way 36! 260. Attempt to Obtain Release 3G3 261. When Release Unnecessary 364 TABLE OF CONTENTS * XIV CHAPTER XVI. PROCEEDINGS IN PROBATE COURT. Section. Page. 262. Application . . .> 365 Form for Petition 367 263. Description of Lands 370 Form for Order for Appointment of Special Guardian 371 264. Citation 372 Form of Citation 373 265. Notice 376 Form for Printer's Affidavit 378 266. Hearing 373 267. Appointment of Special Commissioners 379 268. Order Appointing 380 Form for Order of Appointment of Special Commissioners 381 269. Oath of Special Commissioner 384 Form for Oath of Special Commissioners 385 270. Adjournment of Special Commissioners 386 271. Return of Special Commissioners 386 Form for Return of Special Commissioners 387 272. Disagreement of Special Commissioners 390 273. Venire for Jury 391 Form for Sheriff's Oath 391 Form for Summons 392 274. Return of Jury 393 275. Disagreement of Jury 394 76. Confirmation of Report of Jury 394 Form for Jury to Sign 394 Form for Order Confirming Report of Jury 395 277. Delay in Proceedings 396 278. De Novo Proceedings 397 CHAPTER XVII. LEVY OF THE TAX, AND ITS INCIDENTS. 279. Final Order 400 Form of Final Order for Determination 401 280. Notice of Sale and Assessment 40'i Form of Notice of Sale 402 281. Sale of Drain 404 282. Apportionment of Benefits 405 Form for Apportionment of Benefits 40ft 283. Description of Lands Assessed 407 284. Appeal from Assessment 408 XV TABLE OF CONTENTS Section. Page. Form for Gaim of Appeal 410 Form for Order of Hearing on Claim of Appeal 411 Form for Appointing of Board of Review 41-* Form for Oath of Board of Review 4i:: Form for Report of Board of Review 413 285. Costs and Expenses 414 286. Board of Supervisors 41". 287. The Supervisor 4 1 > 288. Construction of Drain 289. Tax Roll 420 Form for Certificate of Drain Tax Roll 4 MI 290. Sale of Lands for Taxes 422 291. Drain Funds and Orders 423 292. Liability for Tax 424 293. Liability of Townships 425 294. Liability of Petitioners 427 294a. Interest . . 429 CHAPTER XVIII. STATUTES AND RECORDS. 295. Record, Completeness 430 296. Filing of Records 431 297. Construction of Statutes 431 298. Saving Clauses and Amendments 432 299. Validating Acts 433 300. Healing Acts 434 301. Constitutionality of Powers 434 302. Constitutionality of Laws 435 303. Various Drain Laws 436 304. Presumptions 438 CHAPTER XIX. HIGHWAY AND SURFACE WATERS. 305. Drains in Highways 439 306. Private Drains in Highways 441 307. Private Drains 443 308. Municipal Liability 443 309. Drain Outlets 444 310. Bridges and Culverts 445 311. Obstructing Highway Drains 446 312. Diversion of Stream 446 313. Riparian Rights in Lakes 447 314. Surface Waters. Lower Proprietor 441 315. Percolating Waters ** 8 TABLE OF CONTENTS XVI PART THREE SPECIAL ASSESSMENTS CHAPTER XX. GENERAL POWERS AND PRELIMINARIES. Section. Page. 316. Power to Levy Special Assessments 450 317. The Tax Must be for the Purpose Named 453 318. The Petition 455 319. The Vote 455 320. Ordinances 457 321. The Determination 457 Form of Determination 460 Form of Determination after Hearing Objections 462 322. Particulars of Determination 463 323. The Jury 464 324. Comprehensiveness of Terms 465 325. Power to Pave 466 326. Power to Make Sewers 46S 327. Power to Build Sidewalks 468 328. Reasonable Time TO Build 469 329. Power in Re Public Parks and Waterworks 469 330. Limitations of Tax 470 331. Board of Public Works 471 332. Board of Estimates 472 333. Board of Assessors 4715 Form of Instructions to Assessors 473 334. Determining Amount to be Paid by the City 475 335. Plans and Specifications 476 336. Use of Patented Articles 477 337. Estimates 47s 338. Notice of Proposed Improvements 479 339. Notice of Assessment 480 Form of Notice of Review of Assessments 481 340. Notice for Bids 482 341. Publication of Notice 482 342. Service of Notice and Return .. 483 343. Costs and Expenses 484 CHAPTER XXI. THE ASSESSMENT. 344. The Assessment District 485 345. Exemptions. Church Property 488 346. Exempl ions. Public Property 489 XV11 TABLE OF CONTENTS Section. Page. .'.17. Contracts to Exempt 490 348. Roll. Residents and Non-Residents 491 349. Roll. Valuation 491 3:o. Roll. Amount to be Raised Each Year 492 351. Rcll. Miscellaneous 493 352. Assessment by Frontage 494 353. Assessment According to Benefits 495 354. Assessment According to Area 498 355. Hearing or Review 499 356. The Certificate on the Roll 500 Form of Certificate of Board of Assessors 502 357. Confirmation of, Roll 504 Form of Resolution Approving Roll 503 358. Vacating Assessments 504 359. Reassessment 50A CHAPTER XXII. THE CONTRACT, LIABILITY, ETC. 360. Bids 507 361. Irregularities in Accepting Bids 510 362. The Contract :>l 1 363. The Contract, Extras 512 364. Authority of Engineer 514 365. Non-performance of Contract 515 366. Stipulated Damages 516 367. Materials in Street ' 516 368. Primary Liability for the Work 517 369. Bonds 519 Form of Resolution Authorizing Bonds (sec Appendix A). 370. The Record 521 371. Presumptions 522 372. Qualifications of Electors 373. Delegated Authority r.23 374. Ratified Acts 523 375. Healing Acts 524 376. Estoppel 524 PART FOUR PLEADING AND PRACTICE CHAPTER XXIII. FORECLOSURE OF TAX LIEN. 377. Petition and Record 628 378. Parties to Petition . . 530 TABLE OF CONTENTS XVIII Section. Page. 379. Minors and Incompetents 531 380. The Subpoena 532 381. Order of Hearing 533 382. Designation of Newspaper 534 383. Publication. Substituted Service 534 384. Publication. Details 536 285. Proof of Publication 533 386. Objection or Answer to Petition 540 387. Order Pro Confesso 541 388. Jurisdiction of Court 541 389. Hearing on Petition and Entry of Decree 543 390. Decree. General Effect 545 391. Decree. Particulars 646 392. Decree. Evidence of 550 393. Appeal from Decree 550 :!94. Report of Sale 551 395. Report of Sale to Auditor General 552 396. Order of Confirmation 553 397. Certificate of Error 553 398. Setting Aside Sale by the Court 557 399. Petition to Court. Laches 558 400. Bill of Review 559* 401. Writs of Assistance 560 402. Writs of Assistance. Notice . 5~64 Form for Notice of Sale of Land for Taxes 567 403. Writs of Assistance. Service and Return of Notice 573 404. Writs of Assistance. Defences to 576 CHAPTER XXIV. ACTIONS AT LAW. 405. Form of Action for Tax 579 406. Actions for Special A ssessments 583 407. Suits Against State 584 408. Actions Against Collector ,. . . 586 409. Actions Against Municipalities, Assumpsit 587 Form for Declaration Against a Municipality 589 410. Presenting Claim to City 590 411. Replevin '. 591 412. Trover 693 413. Trespass 593 414. Mandamus to Pay Money 595 415. Mandamus as to Other Duties 597 416. Mandamus to Review Action of Court 598 417. Mandamus In Re Drain Proceedings 599 418. Mandamus In Re Special Assessments 599 419. Ejectment 599 420. Recovery for Improvements and Taxes 601 421 . Improvements. Claim of Property 602 422. Certiorari In Re General Tax. . 603 XIX TABLE OF CONTENTS Section. Page. 423. Certiorari In Re Special Assessments 604 424. Certiorari In Drain Proceedings 605 425. Time of Bringing Certiorari 606 426. Certiorari, Injury 609 427. Certiorari and Collateral Actions 609 428. Certiorari, Errors not Cured by Return 609 429. Certiorari, Explanations in Return 610 CHAPTER XXV. EQUITABLE ACTIONS. 430. Equity Jurisdiction over Drain Tax 612 431. Equity Jurisdiction over Special Assessments 614 432. Legislative Regulation of Injunction 614 433. Jurisdiction, as Affected by Amount 616 434. Injunction to Restrain Waste 616 435. Injunction Restraining Expenditures 617 436. Restraining Collection of Tax 617 437. Restraining Sale of Land 619 438. What Constitutes a Cloud en Title 620 439. Bill to Quiet Title 621 440. Bill to Quiet Title Against Drain T^x 624 CHAPTER XXVI. PLEADINGS, ETC. 441. General Practice 62.) 442. Parties Complainant 626 443. Parties Complainant on Drains 628 444. Parties In Re Special Assessments 629 445. Parties Defendant 629 446. Auditor General as Defendant 631 447. Parties Defendant in Drain Proceedings 632 448. Averments 63S 449. Amendments 632 450. Amendments In Re Special Assessments 633 451. Opening Decree 634 452. Evidence Before Jury in Re Special Assessments 63- 453. Collateral Attack of Tax Decree 635 454. Collateral Attack of Drain Proceedings 6 155. Collateral Attack of Special Assessments 6 456. Res Judicata fl 457. Res Judicata in Drain Proceedings fi 458. Evidence, Certificate, e*c 6 459. Evidence, Tax Roll 6 Appendix A 6 Table of Cases fl Index 687 THE LAW OF TAXATION PART ONE GENERAL TAXATION CHAPTER I. THE TAXING POWER. 1. Taxing Power of State. 2. Taxing Acts not Contracts. 3. Taxing Power of Municipalities. 4. Purpose of a Tax. 5 5. Not to Accumulate Money. 6. Internal Improvements. 9 7. Public Buildings. 8. Public Lighting and Water. S 9. Bonuses for Railroads. 10. Bonuses for Factories. 11. Street Railways. 12. Uniformity of Tax. 13. Uniformity as Affected by Location. 14. Double Taxation. 15. License. 16. Uniformity of Charge. 17. Interstate Commerce. 18. Ordinances Reasonable. 19. License for Trading. 20. Liquor License. 21. Prescribing Limits of Sale. 22. Ex Post Facto Regulations. 23. The Liquor Dealer. 24. Liquor Dealers' Bond. 25. Collection and Payment of License. 26. License for Ferries. CROSS-REFERENCES. Lighting and Water Works. 120, :)29. Parks. 329. Pav- ing, 325. Sewers, 326. Sidewalks, 327. Special assessments, 316, 317. 1. Taxing Power of State. The power of legislation, and consequently of taxation, operates on all persons and property belonging to the body (i) 1 THE LAW OF TAXATION 2 politic. This is an original principle, which has its founda- tion in society itself, it is granted by all for the benefit of all, it resides in the government as a part of itself, and need not be reserved when property of any description, or the right to use it in any manner, is granted to individuals or corporate bodies 1 . The amount of taxes is only limited by the necessities of the government 2 . There are no bounds within which discretionary action must be confined. The legislature levying the tax is the sole and ultimate judge of the expediency or necessity of requiring it, and of the extent to which it shall be charged upon any class of taxable articles. And where a legislature acts within the lines of its constitutional powers, the motives of its action can never be judicially reviewed, nor can the courts in any way determine the propriety of its enact- ments. That power may easily be extended far enough to destroy anything on which burdens may be imposed, by making those burdens so heavy as to become prohibitory. It is within the experience of most countries that duties may become prohibitory, and where taxes are chargeable specifically, so that particular objects may be taxed at pleasure, the same result may easily be reached by specific impositions upon domestic interests. The argument that such prohibitory action is improbable has no force in determining the existence or non-existence of the power. There is no legitimate power possessed by any legislature which it may not lawfully carry to an extreme where extreme action is deemed expedient. Where a power of 1. People v. Detroit Ry., 1 2. Sands v. Manistee, 123 U. Mich. 458; State v. Providence S. 283. Bank, 4 Peters 514. 3 THE TAXIKG POWER ^ destruction has been conferred it is always possible that it may be exercised, although it may be very improbable 3 . Judicial proceedings are not necessary to appropriate money for taxes 4 . 2. Taxing Acts not Contracts. Acts relative to the taxation of municipalities do not partake of the nature of a contract so as to thereby become irrepealable by a succeeding legislature. Municipalities are mere agencies of the state; and the state therefore has the right to discontinue the agency at pleasure. The franchises which have been conferred upon any municipality may be recalled at will by the same power that granted them. Thus, where the legislature has set off one taxing district for a specific purpose, and the inhabitants of that district have raised the taxes required, there is no implied con- tract that it shall not be included in a new district for the same taxing purposes as the first, and the lands within that district be required to pay another tax for the same purpose as the former. A charter to a private corporation is regarded as a con- tract; but a charter to a municipality may be controlled, altered, or amended by the government in such manner as the public interest may require. Such legislative inter- ference cannot be said to impair the contract because there is in reality but one party to it, the trustees or governors of the corporation being merely the trustees for the public, 3. Fifield v. Close, 15 Mich. 2 Black 620; Bank Tax Case, 505. The principle that the 2 Wall. 200; and Youngblood v. right to tax includes the right Sexton. 32 Mich. 406. to destroy will be found in Me- 4. Weimer v. Bunbury, 30 Collough v. Maryland, 4 Wheat Mich. 201. 316; Weston v. Charleston, 9 See 5414-418 as to power to Wheat. 733; People v. Com'rs., tax for improvements. 3 THE LAW OF TAXATION 4 the cestui que trust of the foundation 5 . A municipality obtains no vested right TO maintain a fixed taxing district for any purpose since its object and duty is incompatible with any idea of compact. The conferring of a right of taxation upon a municipality is the exercise by the legis- lature of a public and governmental power which cannot be imparted in perpetuity, and is always subject to re- vocation, modification and control, aift is not the subject of contract 6 . Upon a similar principle, a municipality can acquire no vested right to maintain or regulate a ferry, though it may have done so almost from time immemorial. The parties to such a grant do not stand toward each other in the attitude of making a contract such as is con- templated in the constitution. Hence, generally, the doings between the legislature and municipalities is legislative, rather than contractual, subject to change at the will of the legislature 7 . 3. Taxing Power of Municipalities. The burden is upon the municipality to show a grant of power to levy a tax by express words or necessary im- plication, for otherwise in the eexrcise of this high prerogative of sovereignty, the taxing of private property without the consent of the owner, cannot be justified 8 . Where the object of taxation is one of general interest to the state, it is competent for the state, instead of assessing 5. Saginaw v. Hubinger, 137 v. New Jersey, 130 U. S. 189, Mich. 72; New Orleans v. N. O. 199. Water Wks. Co., 142 U. S. 79; 7. East Hartford v. Hartford Essex Public Road Board v. Bridge Co.. 10 How. 511, 533. Shinkle. 140 U. S. 334. 8. Williams v. Detroit, 2 6. Laramie Co. v. Albany Mich. 560, 574. Co.. 92 U. S. 307; Williamson THE TAXING POWER the burden directly, and providing for it by means of a general state levy, to apportion it among the several counties and towns, and to authorize and require them to provide for it by local taxation. Municipalities have no inherent power of taxation, but take only so much as the state shall see fit to allow, and under such restrictions as the legislature may think proper to impose. Necessity is not the governing consideration and ift many cases it has little or nothing to do with the question presented. If taxes are imposed, it is not because it is absolutely necessary that certain objects be accomplished, but because the public authorities deem it best they should be 9 . The municipality has no inherent right to decide for itself what taxes shall be levied for the general purpose of local government; and it is not there- fore a valid objection that it was not consulted in its levy 10 . The constitution requires the legislature to restrict the power of municipalities to tax, and in so doing it performs an imperative duty 11 . The legislature may authorize the raising of money for a specified purpose, and may then repeal such authority, leaving the money in the hands of the municipality 12 . The legislature has generally fixed this limit at a percentage upon the assessed valuation of the municipality 13 . This statutory limit cannot be exceeded, in the absence of statutory permission, by incurring liability to become due in future years. The sum total of the in- debtedness incurred must be within the limit fixed to be raised in one year 14 . 9. Detroit etc. Ry. v. Salem, 12. Tivey v. People, 8 Mich. 20 Mich. 452. 128. 10. Youngblood v. Sexton, 13. Schneewied v. Niles, 103 32 Mich. 406. Mich. 301. 11. Watles v. Lapeer, 40 14. Mitchell v. Negaunee, Mich. 624; Anderson v. Hill. 54 113 Mich. 357, 362. Mich. 477. 4 THE LAW OF TAXATION 6 By the weight of authority, municipalities have the right to tax farming lands within their limits for the maintain- ance of water works and other conveniences, though such improvements are not made accessible to the land taxed. The legislature, which alone has authority to determine and fix the proper bounds of the municipal divisions of the state, and also to establish taxing districts, has proceeded to do so, and, in fixing city boundaries without any pro- vision for a discrimination in the taxation of property within them, had in effect determined that no such discrim- ination should be made. The whole subject was one committed by the constitution exclusively to the judgment and discretion of the legislature, whose members, as in other cases of legislation, would make inquiry into the facts in their own way, and act upon their own reasons. No question could be made of the complete legislative jurisdiction over the case, and, if the action was unfair and led to unequal and unjust consequences, it could not be assailed in the courts upon any ground that would not warrant a judicial review of legislative action in which parties complain of injustice and inequality 15 . 4. The Purpose of a Tax. Every species of taxation, in whatever mode, is based, in theory and principle, upon an idea of compensation, benefit or advantage, either directly or indirectly, to the person or property taxed. If the tax is levied for the support of the government and general police of the state, for the education and moral instructions of the citizens, or the construction of works of internal improvement, the one so 15. Lewick v. Glazier, 116 as to special assessments. Will- Mich. 493; Mitchell v. Negau- iams v. Detroit, 2 Mich. 560, 568. nee, 113 Mich. 359, 364. See 406, 7 THE TAXING POWER 4 taxed is supposed to receive a just compensation in the security which government affords to his person and property, the means of enjoying his possessions, and their enhanced capacity to contribute to his comforts and gratifi- cation, which constitute their value. Taxation, not based upon any idea of benefit to the person taxed would be grossly unjust, tyrannical and oppressive. Taxes and loans, when authorized to be raised by any public body, must be raised under the implied condition that they are to be applied to the public uses under the control or care of that body. They cannot be raised for the purposes or uses of others unless such a power is plainly given, and such a power cannot be given for all purposes 16 . Upon this principle, money voted to increase the capacity of a water and light plant cannot be used to purchase, instead of manufacturing, these commodities; nor to purchase power instead of making it 17 . The tax must be imposed for a public and not a mere private purpose. The discrimination by the state between differ- ent classes of occupations, and the favoring of one at the expense of the rest, whether that one be farming or bank- ing, merchandizing or milling, printing or railroading, is not legitimate legislation, and is an invasion of that equality of right and privilege which is a maxim in state govern- ment. When the door is once opend to it, there is no line at which it can be said the legislature must stop, since every honest employment is honorable, beneficial to the public and deserving of encouragement. The more success- 16. In Atty General v. Bay The same principle is found in County Board, 34 Mich. 46, the the railroad bonus cases, 9, board of supervisors attempted post. to levy a county tax to distri- 17. Vossen v. St. Clair, 148 bute to several townships for Mich. 686. township roads. Held, illegal. 4 THE LAW OF TAXATION 8 ful any employment can be made, the more does it generally subserve the public good. But it is not the business of the state to make discriminations of one class against another. The state can have no favorities. Its- business is to protect the industry of all, and to give all the benefit of equal laws. Taxation is a mode of raising revenue for public purposes only; and when it is prostituted to objects in no way connected with the public interests or welfare, it ceases to be taxation and becomes plunder 18 . The tax must be laid according to some rule of apportionment; not arbitrarily or by caprice but so that the burden may be made to fall with something like impartiality upon the persons or property upon which it justly and equitably should rest. A state burden is not imposed upon any territory smaller than the whole state, and a county burden is not imposed upon any territory smaller or greater than the county. While absolute equality and justice are never attainable, the adoption of some rule tending to that end is in- dispensable 19 . If a tax is imposed upon one of the muni- cipal subdivisions of the state only, the purpose must not only be a public purpose as regards the people of that sub- division, but it must also be local, that is, the people of that municipality must have a special and peculiar interest in the object to be accomplished, which will make it just, proper and equitable that they should bear the burden rather than the state at large, or any considerable portion of the state 20 . 18. People v. Salem, 20 v. School Dist., 57 Pa. St. 433; Mich. 452, 474, approved in Broadhead v. Milwaukee, 19 Mich. Corn Imp. Ass'n v. Audi- Wis. 652. See 9, post, tor General, 150 Mich. 69, where 19. People v. Salem, 20 Mich, an appropriation of $500.00 to 452, 474; Ryerson v. Utely, 16 a voluntary association for the Mich. 269; Weeks v. Milwaukee, improvement of corn in the 10 Wis. 258; Merrick v. Am- state was held illegal; Sharpless hurst, 12 Allen 504. v. Mayor, 21 Pa. St. 168; Greier 20. Butler v. Saginaw Co., 9 THE TAXING POWER .">, 6 5. Purpose of Tax is not to Accumulate Money. It is contrary to our policy to levy taxes for the purpose of accumulating funds for the future. It is not con- templated that funds will pass by inheritance to new town- ships- 1 . 6. Purpose of Tax for Internal Improvements. The constitution provides that "The state shall not be a party to, or interested in, any work of internal improve- ment, nor engaged in carrying on any such work, except in the expenditure of grants to the state of land or other property 22 ." The only improvements permissible are local in their character, authorized by the police power of the state, and paid for by local taxation. It is immaterial whether the proposed improvement be upon the highways, or drains, or for a railroad, or any other private or local improve- ment 23 . The state cannot set aside lands bid in for delinquent taxes for such work. Such lands are not granted to the state except in a most technical sense; for though the auditor general does execute a deed to the state, he holds them in the first instance for the state, which has purchased them for delinquent taxes. They represent 26 Mich. 22, holding that the tion of 1908, Art. X, 14; Gib- board of supervisors could not son v. Com'r of Land Office, levy a tax upon the county at 121 Mich. 49. large to pay county drain 23. Atty General v. Pingree, orders. Wells v. Weston, 22 120 Mich. 550; Anderson v. Hill, Mo. 384: Morford v. Unger, 8 54 Mich. 477; People v. Spring- la. 82. wells Board, 25 Mich. 153; Spar- 21. Roscommon Twp v. Mid- row, v. Com'r of Land Office, land Twp, 39 Mich. 424; Mich. 56 Mich. 567; Ryerson v. Utely, Land, etc., Co., v. La Anse 16 Mich. 269: Wilcox v. Pad- Twp., 63 Mich. 700, 703. dock, 65 Mich. 23. 22. Constitution of 1850. Art. See Bonuses, post. XIV, 9, Beecher's Constitu- 7, 8 THE LAW OF TAXATION 10 the states lien upon them for taxes, and then indirectly the taxes would be applied to such a purchase. If the land is then applied, the deficiency arising from the failure of the former owner to pay the taxes for which the lands were sold will have to be met by taxation 24 . 7. Purpose of Tax for Public Buildings. A municipality has a necessary right to provide its own public buildings. It may also, gratuitously, furnish accom- modations for public officers which do not represent that municipality; as a city may gratuitously furnish a court house for a county 26 . 8. Purpose of Tax for Public Lighting and Water. The maintainance of public streets and buildings is a public service, and it may be reasonably necessary to light them in order that the greatest public benefit may be obtained from using them. Cities and thickly settled towns have for a long time been accustomed to light their public buildings and some of their streets at the public expense. If the streets and public buildings are to be lighted, the means is a matter of expediency. If the legislature can authorize cities and towns to light their streets and public buildings, it can authorize them to do this by any appro- priate means which it may think expedient. As a question of constitutional power, we cannot distinguish the right 24. Gibson v. Com'r of Land 34 Mich. 402, it is held that the Office, 121 Mich. 49, construing city could build a house of cor- Local Act 423 of 1897, provid- rection to be used by itself and ing for the improvement of the state. Maple River, and imposing a See "Parks etc." 329, post; tax if necessary. the municipality cannot levy 25. Callam v. Saginaw, 50 special assessments for these Mich. 7. In Detro't v. Laughna, purposes. 11 THE TAXING POWER 8 to authorize cities and towns to buy gas or electricity for their use from the right to authorize them to manufacture it for their use. In general, it may be said that matters which concern the welfare and convenience of all the inhabitants of a city or town, and cannot be successfully dealt with without the aid of power derived from the legislature, may be subjected to municipal control when the benefits received are such that each inhabitant needs them, and may participate in them, and it is for the interest of each inhabitant that others as well as himself should possess and enjoy them 26 . It was long ago declared that the supply of a large number of inhabitants with pure water was a public purpose 27 . So, also, is the purchase of land for parks 28 . While a citizen may be compelled to pay his portion of the cost of maintaining a supply of water for the city, he cannot be compelled to pay a fixed water rate, if he does not use the water because the water pipe pass along side of his premises. The water rates paid by consumers are in no sense taxes, but are nothing more than the price paid for water as a commodity, just as similar rates are payable to gas companies, or to private water works, for their supply of gas or water. No one can be compelled to take water unless he chooses, and the lien, though it may be enforced in the same way as a lien for taxes, is really a lien for an indebtedness, like that enforced on mechanics contract or against ships and vessels. A burden so levied cannot come within the class of local assessments whereby local 26. Mitchell v. Negaunee, 149; State v. Toledo, 48 Ohio 113 Mich. 359, quoting from 150 St. 112. Mass. 592; Rushville Gas Co. v. 27. Lombard v. Stearns, 4 Rushville, 121 Ind. 206; Craw- Cush. 60. fordsville v. Braden, 130 Ind. 28. Attorney General v. Bur- rcll, 31 Mich. 25. Ji'.l THE LAW OF TAXATION 12 expenditures for certain purposes are divided among the various premises in the district benefited. It is a serious question how far the legislature can fix a definite and unchangeable amount of taxation for purely local purposes coming within no purpose in which the state or public lias any concern. While the state is concerned in education and in those matters which relate to the peace and good order of the community, it has no very direct interest in local improvements. A fixed water rate imposed on parties not using the water, not as a percentage on property, but as a charge on a limited portion of the property which fronts on the streets, is beyond the power of the legislature under the rules applicable to general taxation for any purpose, whether local or of universal concern 29 . 9. Purpose of Tax for Bonuses for Railroads. It is not in the power of the state, under the name of bounty or any other cover or subterfuge, to furnish capital to set private parties up in any kind of business, or to subsidize the business after they have entered upon it. A bounty law of which this is the real nature is void, what- ever may be the pretenses on which it was enacted. The discrimination by the state between different classes of occupations is not legitimate legislation, and is an invasion of that equality of right and privilege which is a maxim in state government. It is not the business of the state to make discriminations in favor of one class against another. The state can have no favorites. It cannot compel an un- willing minority to submit to taxation in order that it may keep upon its feet any business that cannot stand alone. 29. Jones v. Water Com'rs, 34 Mich. 273, 275. 13 THE TAXING POWER 10 It follows that what the state as a political community can- not do, it cannot authorize inferior municipalities to do 30 . Municipal corporations have, therefore, no authority in return for, or upon the basis of, the incidental benefits anticipated, to exercise the power of taxation in favor of railroad companies or others; and bonds issued by way of such aid, being incipient steps leading to taxation are un- authorized 31 . Purpose of Tax for Bonuses for Factories. The municipality cannot make a direct gift to persons or corporations for private purposes, nor can it make im- provements for an alleged public purpose, when the real purpose is to aid a private enterprise 32 . Where a bounty had been earned, the court, without discussion, ordered it paid, as a vested right 33 . A bonus by a municipality being illegal and beyond its power to grant, an action will lie by the municipality to recover money so paid over 34 . 30. Detroit etc. Ry. v. Salem, 32. Board of Supervisors v. 20 Mich. 452, 486. Mentor Twp., 94 Mich. 386. In 31. Bay City v. State Treas- Clee v ; Saunders, 74 Mich. 692, urer, 23 Mich. 499; Thomas v. the municipality agreed to ex- Port Huron, 27 Mich. 320; pend $1,200.00 in draining a Dodge v. Van Buren Judge, marsh and improving high- 118 Mich. 189; Cedar Springs v. ways around the site for Schlich, 81 Mich. 405. In Mich, a factory in consideration Sugar Co. v. Auditor General, of its locating there. Held, 124 Mich. 674, the payment of that the tax was illegal. In a statutory bounty to a sugar Davis v. Board of Ontanogon company is held unconstitu- Co., 64 Mich. 404, a grant of a tional. In Taylor v. Ypsilanti, bonus to a contractor on a 105 U. S. 60; East Saginaw Mfg state road was held illegal. Co. v. East Saginaw, 19 Mich. 33. East Saginaw etc. Co.. v. 259, and in People v. Auditors, State Auditor. 9 Mich. 327; but 59 Mich. 327, reviewed in 13 in Mich. Sugar Co. v. Auditor Wall. 373, a bounty to salt pro- General, 124 Mich. 674. such a ducers was upheld; but the bounty is held unconstitutional. question of constitutionality 34. Morrice Village v. Sut- was not raised. ton, 139 Mich. 643. See 3, supra. 11, 12 THE LAW OF TAXATION 14 11. Purpose of Tax for Street Railways. The ownership of a street railway, partly within and partly without the corporate limits of a municipality is not such a public improvement as will support a tax there- for, and it is beyond the corporate powers of the muni- cipality to operate such a railway 38 . 12. Uniformity of Tax. The constitution declares, "The legislature shall provide a uniform rule of taxation, except on property paying specific taxes, and taxes shall be levied on such property as shall be prescribed by law." The law enjoins a just principle of equality in regard to all public burdens, and prescribes a limit to the exercise of the taxing power, that common burdens should be sustained by common contri- butions, regulated by somes fixed general rule, and apportioned according to some uniform ratio of equality 36 . The design of the foregoing provision was to secure to every portion of the state, and to every class of property taxed, a uniform rate, to secure equality, so that property in one quarter should not be taxed at a higher rate than in another, or the same kind taxed unequally. The legislature has the power of prescribing the subjects of taxation, and of exemption, but it cannot arbitrarily tax property according to location, kind or quality, without 35. In Attorney General v. St. 14, a contrary doctrine is Pingree. 120 Mich. 550, it is upheld. held that Act No. 338 of Local See 352, 353, 354, post, as Acts of 1899, providing for such to special assessments. The a railroad, is unconstitutional constitutional provisions do not upon the ground that it was an apply to such taxes, attempt to engage in making 36. Const, of 1850, Art. XIV, internal, improvements. In Sun 11, Beecher's Const, of 1908, Printing etc. Ass'n. v- New Art. X, 3, Williams v. Detroit, York, 152 N. Y. 257, and in 2 Mich. 560, 570. Walker v. Cincinnati, 21 Ohio 1 5 THE TAXING POWER i 1 .' regard to value, but in this respect it must act by uniform rule. To exempt property, as in the case of church, school or library property, or to remit taxes for any cause, has nothing to do with the uniformity of taxation 37 . Double taxation is not uniformity; but because the same values may be taxed in different states, as property in one state and credits in another, it affords no legal reason for omitting either from taxation 38 . But the omission of a considerable portion of the taxing district from the assess- ing rolls renders the entire tax of that district void for lack of uniformity 39 . The tax may be unequal and unjust because not levied in proportion to the business done. It may possibly be true that an apportionment according to the business done would have been more just, but a question of this nature concerns the legislature and not the court. Courts annul tax laws because of their operating unequally and unjustly 40 . The legislature has the power of dividing objects of taxation into classes. It may tax a foreign corporation more than a domestic for doing business within the state. The law as to uniformity merely obliges the legislature to impose an equal burden upon all who find themselves in the same class 41 . 37. People v. Auditor Gen- 38. Attorney General v. eral, 7 Mich. 84, 89. In Wood- Supervisors, 71 Mich. 16; Stand* bridge v. Detroit. 8 Mich. 274, ard Life Ins. Co. v. Assessors, it is held that this provision of 95 Mich. 466. the constitution does not apply 39. Mich. Land etc. Co. v. to special assessments, and Republic Twp., 65 Mich. 628. that a provision putting the en- 40. Youngblood v. Sexton, tire expense upon abutting 32 Mich. 406; Bacon v. Com'rs, owners, each paying the cost . 126 Mich. 22, 26. opposite his lot. is valid. But 41. Bacon v. Com'rs, 126 this seems to be over-ruled in Mich. 22, 26; Ins. Co. v. New Moetz v. Detroit, 18 Mich. 495, Orleans, 1 Woods 85. 89; State 523. v. Lathrop. 10 La. Ann. 402. 13 THE LAW OF TAXATION 16 13. Uniformity as Affected by Location. A tax cannot be imposed upon one township for the benefit of another township. An arbitrary selection of an assessing district cannot be made by those in authority, without regard to the benefits to be derived ; and one which excludes territory which admittedly receives greater benefit than that which is included, is illegal 42 . The control of the state in regard to taxation is certainly very great, but it is by no means unlimited, and it cannot be exercised in an arbitrary manner, nor without regard to those principles of justice and equality on which it is based. It is of the essence of all taxation that it should compel the discharge of the burden by those upon whom it rests; and if the state should attempt to compel any single county to pay the salaries of the state officers, or the expenses of the legislature, no one would for a moment doubt that the act would be unconstitutional 43 . By taxation is meant a certain method of raising revenue for a public purpose in which the community that pays it has an interest. An act of the legislature authorizing contributions to be levied for a mere private purpose, is one in which the people from whom they are exacted have no interest. It would not be a law but a sentence commanding the periodical payment of a certain sum by one portion or class of people to another 44 . 42. In Manistee Lumber Co. 43. Ryerson v. Utely, 16 v. Springfield Twp, 92 Mich. Mich. 269. 277, Local Act No. 294 of Pub- 44. Sharpless v. Mayor etc., lie Acts of 1891, is held uncon- 21 Pa. St. 147; Dorgan v. Bos- stitutional in that it provides ton, 12 Allen 223; in Taylor v. for the expending of highway Youngs, 48 Mich. 269, it is held taxes in one township which, that land cannot be assessed in were to be raised by another a different township than the township. McFarlan v. Cedar one in which it is situated, Creek Twp, 93 Mich. 558. though it was not assessed in the home township. K THE TAXING POWER 1.10 $14. Double Taxation. It is against the spirit of our laws, and no statute will be construed to impose double taxation unless required by express words or necessary implication. Yet, when it contravenes no constitutional provision, the court cannot declare it illegal. The fact that the same value is twice taxed does not render it void. Property may be taxed in one locality or state, and credits, as mortgages, based upon that property may be taxed in another locality 45 . For the purpose of taxation, however, a corporation and its stockholders residing in this state are not different persons, where the corporate property is situated within, and taxed in, this state, although it is a foreign corpor- ation 46 . The language of the statute, in reference to taking shares of stock in foreign corporations, where part of the property is in this state, does not suggest a rule of taxation not uniform. Taxing shares of stock of such companies held by residents within the state, is not considered double taxation, nor unconstitutional 47 . 15. License. It has always been considered improper to pass by-laws in restraint of trade, as tending to discourage enterprise and to create monopolies. But it has been seen for centuries that certain classes of business, not held unlawful in 45. C. L. 53831 subd. 5, Attor- are taxed on personal property ney General v. Supervisors, 71 for the money which went into Mich. 16, 22; People v. Rhodes, the mortgages, is held not 15 111. 305; People v. Wharten- double taxation, it being only by, 38 Cal. 461. In Common an indirect result. Council v. Assessors, 91 Mich. 46. Stroh v. Detroit, 131 78, 95, the fact that mortgages Mich. 109. in which a savings bank has in- 47. Theall v. Guiney, 141 vested its capital, are taxed as Mich. 392. real estate, and the depositors 15 THE LAW OF TAXATION 18 themselves, gave facilities for unlawful conduct, and allowed action dangerous to the public. Such callings have always been held to require some regulation to prevent their abuse. All places of general resort for amusement or refreshment are liable to harbor dangerous persons, and to furnish opportunities for combinations, and for breaches of the peace, and if crowded, for thefts and outrages. The license system has always been found desirable to bring these callings so readily capable of abuse within more effectual control, in order that crime may be prevented or detected, and disorder checked. A license fee is in the nature of a specific tax upon business 48 . A tax on business of a specific annual sum is not a state specific tax when it is assessed and collected locally and appropriated to local purposes, though collected under a general state law. It is not a valid objection to the tax because it is not assessed in proportion to the business done, or that its operation is not just. Such a tax does not necessarily license or approve a business, since it is com- petent to tax an illegal business 49 . A license is not a tax; and unless otherwise provided, does not require a two- thirds vote 50 . 48. In Kitson v. Mayor etc., a drinking saloon, distinguish- 26 Mich. 325, 328, it is held ing it from 26 Mich. 325, supra, competent for the municipality in that that ordinance applied to impose a license upon to all saloons, whether for saloons. In People v. Blom, drinking or eating. 120 Mich. 45, a city license of 49. Youngblood v. Sexton, $300.00, in addition to the 32 Mich. 406. In Sherlock v. license provided by the state Stuart, 96 Mich. 193, it is held law for selling liquors at retail, that the legislature may confer was held reasonable and valid. upon the municipality the right In Dewar v. People, 40 Mich. to determine where a saloon 401, it is held that under 47, may be located, and the fitness Art. IV of the Constitution of the person to engage in the (which was repealed in 1876), business. the legislature could not auth- 50. Kenaston v. Riker, 176 orize a municipality to license Mich. 163. 19 THE TAXING POWER ? 1 .". The exaction of a license tax as a condition of doing any particular business is a tax on the occupation; and a tax on the occupation of doing the business is a tax on the business. It is clear, therefore, that this license tax is not a mere police regulation, simply inconveniencing one engaged in interstate commerce, but is a direct charge and burden on that business; and, if a state may lawfully exact it, it may increase the amount of the exaction until all interstate commerce in this mode ceases to be possible 51 . It is not within the power of the legislature to deprive any of the people of equal privileges under the law, nor to give to municipal bodies power to enact ordinances that would accomplish the same result. The legislature cannot prohibit, nor can the municipality require its consent for an orderly parade upon the streets 52 . Where the legislature confers express powers to pass ordinances of a specified and defined nature, such an ordinance, if not prohibited by the constitution, will not be held unreasonable. But where the power to legislate on a given subject is conferred, but the mode of its exercise is not prescribed, then the ordinance passed in pursuance thereof must be a reasonable exercise of the power, or it will be pronounced invalid. Thus, a city ordinance prohibiting the circulation of hand bills upon the streets, is unreasonable 53 . In a clear case of an invasion of peoples rights, by an ordinance, a writ of prohibition will issue where delay, occasioned by turning the parties affected over to persecuting persecutions, would entail serious financial loss 54 . 51. Leloup v. Mobile, 127 U. 54. Hughes v. Recorders S. 640; Robbins v. Taxing Dist., Court Judge, 75 Mich. 574; the 120 U. S. 489. ordinance prevented sales of 52. Matter of Frazee, 63 produce except from stalls from Mich. 396. the central market, thus giving 53. People v. Armstrong, 73 the stall holders a monopoly of Mich. 288, 293. the market. 15 THE LAW OF TAXATION 20 Under the power to regulate a business, the municipality may not prohibit it; and many illustrations of the exercise of this power are afforded. Under a general power to regulate the use and enjoyment of the streets, the council may require the consent of the Mayor for the use of the streets to make an address 55 . An ordinance may define garbage as all refuse matter attending the preparation or storing of any food, and may prevent its sale; since such subject matter is in no sense a trade, business, or occupa- tion 56 . An ordinance prohibiting the depositing of refuse in an alley, is valid 57 . Under a general power of control and management, a park commission may impose a $2.00 license fee upon the drivers of public vehicles 58 . A munici- pality, in passing an ordinance, cannot exceed the powers conferred; as where it attempts to impose a penalty for selling impure meats, instead of for knowingly selling im- pure meats 59 . The general rule is well established that courts will not inquire into the motive of legislators where they possess the power to do the act, arid it has been exercised as pre- scribed by the organic law. It therefore follows that an ordinance cannot be impeached by showing the fraudulent motives of the members of the council. The motives of the legislators, considered as the purposes they had in view, will always be presumed to be to accomplish that which follows as the natural and reasonable effect of their enact- ments. Their motives, considered as the moral inducements for their votes, will vary with the different members of the 55. Love v. Recorders Court 57. People v. Bennett, 83 Judge. 128 Mich. 160; Mt. Mich. 457. Clemens v. Sherbert, 122 Mich. 58. Kerrigan v. Poole, 131 674. Mich. 305. 56. Gd. Rapids v. De Vries, 59. People v. Brill, 120 Mich. 123 Mich. 570; People v. Card- 42. ner, 136 Mich. 693. 21 THE TAXING POWER legislative body. The diverse character of such motives, and the impossibility of penetrating into the hearts of men and ascertaining the truth precludes all such inquiries as impracticable and futile 60 . Upon the foregoing principle, neither a municipality, nor its officers, are liable for a judicial act in wilfully refusing to approve a bond 61 . $16. Uniformity of Charge. Not only can no distinction be made between residents of the state, and non-residents, as is pointed out in the following section, but the charge itself must be fixed and definite, applying to all citizens alike. It cannot be left to the discretion of a committee or body to fix one charge for one person, and a different charge for another person doing the same business. A provision whereby a council may suspend the operation of an ordinance in any particular by a two-thirds vote is unconstitutional, since its provides for discrimination and is unequal in its application to mem- bers of the same class 62 . Similarly, a license fee to plumb a house, based upon a percentage of the cost of the plumbing in each particular case, is invalid, the apparant object being to raise money to meet expenses otherwise provided for 63 . 60. People v. Gardner, 143 tions upon which the license Mich. 104. may be issued, and the duration 61. Amperse v. Kalamazoo, of its validity, etc. * * * It 75 Mich. 228 and 234. is, further a well settled prin- 62. Brown v. Circuit Judge, ciple that cities cannot discrim- 145 Mich. 413, construing Act inate between citizens engaged 214 of Laws of 1905; Mt. in the same business; that if Clemens v. Sherbert, 122 Mich, they license, they must license 674, the Court says: "In exer- all alike." cising a power to license certain 63. People v. Decker, 141 occupations, the council should Mich. 304, where the license fee by its ordinance, prescribe the was 2% of the cost up to exact occupation to be licensed, $500.00, and 1% of the cost the amount of fee to be charged thereover, with a minimum either uniformly or by a reason- charge of $1.00. This was in able classification- the condi- Grand Rapids. :j 1 1 THE LAW OF TAXATION 22 A statute may, however, incidentally and indirectly, impose a charge which affects residents and non-residents unequally. The imposition of a tax of $500.00 on whole- sale liquor dealers, but providing that manufacturers shall pay $65.00, and not be subject to the wholesale tax, is not invalid as discriminating against non-resident manufact- urers since a resident manufacturer would be obliged to pay this tax if he established a depot separate from his factory 64 . 17. Inter-State Commerce. The municipality may be granted power to impose a license for hawking and peddling, whether by sample or otherwise, under certain constitutional limitations. In so far as these restrictions affect inter-state commerce, they are in violation of Art. I, 8, of the Constitution of the United States, which vests in congress the power to regulate commerce among the several states. - Therefore, a hawkers and peddlers license cannot be exacted from an agent repre- senting a foreign company, who comes within this state and sells goods by sample, to be shipped to the vendee from outside of the state 65 . It is undoubtedly true that there are many police regu- lations which do affect inter-state commerce, but which have been and will be sustained as clearly within the power of the state; but it must be considered, in view of a long line of decisions, that it is settled that nothing which is a direct burden upon inter-state commerce can be imposed by the state without the consent of congress 66 . 64. People v. Voorhis, 131 65. People v. Bunker, 128 Mich. 398, construing C. L. Mich. 160. 5379. 66. Brennan v. Titusville, 153 U. S. 289. 23 THE TAXING POWER ? 1 The Federal Constitution, 2, Art. IV, provides, that "The citizens of each state shall be entitled to all of the privileges and immunities of citizens in the several states." I'nder this provision, the person paying the tax or. charge must stand upon the same footing as the resident, both as to sales made and quantity sold. Among the privileges and immunities reserved is that of being exempt in other states from higher taxes and impositions than are paid by the citizens of such other states. Under this provision, while it is entirely competent to lexy taxes upon' the business or property of non-resident traders within the state, it is not competent to require them to take out a license and pay therefor a greater sum than is demanded of residents 67 . A license or tax must apply equally to citizens of other states as well as to citizens of this state. When it attempts to discriminate against a non-resident of the state, it is void 68 . Upon this principle, a municipality cannot impose a license fee upon one offering goods for sale by sample so far as it applies to one selling goods from without the state 89 . Where, however, orders are solicited and not sent out of the state, being in fact filled by the solicitor himself, to whom the goods are shipped and consigned, such a license charge is constitutional 70 . Liquor from another state, may be sold in original packages here, though both parties to the sale live in this state. The attempt to regulate whole- sale sales of intoxicating liquors in this state, by non-resi- dents, is unconstitutional; C. L. 4018 71 . 67. People v. Walling. 53 69. People v. Bunker, 128 Mich. 264, 269; Gay v. Balti- Mich. 160. more, 100 U. S. 438; Ward v. 70. Muskegon v. Zeeryp, 134 Maryland, 12 Wall. 418. Mich. 18; Muskegon v. Hanes, 68. Rodgers v. Judge, 115 149 Mich. 460. Mich. 441; Welton v. Missouri, 71. Sloman v. Moebs Co., 91 U. S. 275; Walling v. Mich. 1:18 Mich. 334. 116 U. S. 464. 18 THE LAW OF TAXATION ^4 The statute, C. L. 5379, imposing a $500.00 license fee on the wholesale liquor business, but providing that manu- facturers within the state shall pay $65.00, and not be subject -to the wholesale tax, is valid. It does not discrim- inate against non-resident manufacturers who establish a depot in this state. Any manufacturer, establishing a depot separate from his factory, would be obliged to pay the wholesale license fee 72 . The state may impose a tax upon liquors brought from one state into another. The Federal Constitution prohibits the states, without the consent of congress, from laying any tax or duties on imports or exports, except such as may be absolutely necessary for executing its inspection laws 73 . The duties referred to in this section relate solely to the duties upon foreign and imported articles, and do not refer to taxes upon liquors shipped from one state into another and there sold, or to special taxes which grow out of the internal police regulations of the state. The terms "imports" and "exports" refer only to articles im- ported from, or exported to, foreign countries 74 . 18. Ordinances Must be Reasonable. Corporations derive all of their power from legislative acts, and they can pass no ordinances which conflicts with the charter. Where the legislature, in terms, confers upon a municipal corporation the power to pass ordinances of a specified and defined character, if the power thus delegated be not in conflict with the constitution, an ordinance passed pursuant thereto cannot be impeached as invalid because it 72. People v. Voorhis, 131 Mich. 264, 270; Brown v. Mary- Mich. 398. land, 12 Wheat. 454; Woodruff 73. Par. 2, 10, Art. I, Fed- v r Parham, 8 Wall. 123; License eral Constitution. Cases, 5 How. 59.1. 74. People v. Walling, 53 THE TAXING POWER 518 would have been regarded as unreasonable if it had been passed under the incidental power of the corporation, cr under a grant of power general in its nature. What the legislature distinctly says may be done will not be set asidt by the courts, unless in conflict with the constitution, be- cause they may deem it unreasonable. But there the power to legislate on a given subject is conferred, and the mode of its exercise is not prescribed, then the ordinance passed in pursuance thereof must be a reasonable exercise of the power or it will be pronounced invalid 75 . No legislative 75. In People v. Armstrong, 73 Mich. 288, an ordinance pro- hibiting the circulation of busi- ness cards is held not author- ized by the legislature, and also unreasonable. The Court says, "Laws which attempt to regu- late and restrain our conduct in matters of mere indifference, without any good end in view, are regulations destructive of liberty. Under our constitution and system of government the object and aim is to leave the subject entire master of his own conduct, except in the points wherein the public good re- quires some direction or re- straint." In Frazee's Case, 63 Mich. 396, an ordinance pro- hibiting marching or parading upon the streets without the consent of the Mayor or Com- mon Council, under a penalty of a heavy fine, was held un- reasonable and invalid because it suppressed what was, in gen- eral, perfectly lawful, and left the power of permitting or re- straining processions to an un- regulated official discretion. In Chaddock v. Day, 75 Mich. 527, a license of $10.00 per month was held unreasonable because its apparant purpose was to benefit certain tradesmen, and was not a legitimate exercise of the police power for the benefit ol the public health or to pre- serve good order. This case approves Austin v. Murray, 16 Pick. 126, which holds that the right of property or business cannot be invaded under the guise of the police power when such is not its real object. In Brooks v. Mangan, 86 Mich. 576. an ordinance requiring a pedler to pay $10.00 per day and upwards is held unreason- able. In Saginaw v. Circuit Judge, 106 Mich. 32, an ordi- nance which discriminated against non-residents is held unreasonable and in restraint of trade. In Grand Rapids v. Braudy, 105 Mich. 670, a license fee of $25.00 to $50.00 is held reasonable. In People v. Hotchkiss, 118 Mich. 59. a license fee of $5.00 for peddling on foot, and $25.00 for peddling from vehicles, is held reason- able. In Grand Rapids v. Norman. 110 Mich. 544, a license fee of $30.00 per year for peddling, is held reasonable. See State v. 18 THE LAW OF TAXATION 2(5 or municipal body has the power to impose the duty of performing an act upon any person which it is impossible for him to perform, and then make his non-performance of such a duty a crime. Neither can the legislature impose a duty upon the citizen, give him an insufficient time to perform it, and then authorize some one else to perform the duty for him, and impose a tax upon him for the cost 76 . Under a charter provision that an abutting owner should build side walks pursuant to an ordinance the council should adopt, the municipality cannot impose a fine and imprisonment for its violation, or for non-compliance on ten days notice. This might mean imprisonment for such as were financially unable to comply with the ordinance, and therefore unconstitutional 77 . A city ordinance suppressing smoke and foul odors, as a nuisance, is valid, although the statute likewise provides for the con- viction and punishment of those guilty of a like offense 78 . A power to regulate does not give a power to prohibit. The license may fix a reasonable license fee, only, open to all citizens. The license only applies to the particular busi- French, 30 L. R. A. 415 (Mon- sing. 53 Mich. 367, a city license tana.) of $100.00 upon saloons not sell- In People v. Baker, 115 ing intoxicating liquors, is held Mich. 199, a weekly license of reasonable. $5.00 for peddlers is held rea- In Gd. Rapids v. Norman, sonable. In Muskegon v. Zee- no Mich. 544, a power to tax ryp, 134 Mich. 181, a charge for at the rate of $15.00 per day, a peddlers license of $10.00 for and not over $30.00 per year, is one week and $50.00 for one held reasonable, year, is held reasonable. 76. Auditor General v. Hoff- In People v. Blom, 120 Mich. man, 129 Mich. 541, holding a 45, a city license of $300.00 for limit of five days in which to retailing intoxicating liquors, is build a sidewalk, unreason- held reasonable and valid; but able. in Kenasten v. Riker, 146 Mich. 77. Port Huron v. Jenkin- 163. a $500.00 city license upon son, 77 Mich. 414. saloons where intoxicating 78. People v. White Lead liquors are not sold, is held un- Wks, 82 Mich. 471. reasonable. In Wolf v. Lan- THE TAXING POWER ? I 1 ' ness or articles defined; it cannot leave certain articles, as tea, to be regulated on application to the council 79 . An ordinance which provides for an annual inspection of light poles to see if they are secure, charging 50 cents per pole per year therefore, is unreasonable and void, being an evident intent to furnish revenue and not merely to defray the expense of a reasonable inspection 80 . Authority to the board of health to promulgate rules in reference to plumbing, and to charge each plumber a license fee of two dollars, does not support a right to require a fee for each work, based upon a percentage of the cost of such work 81 . An ordinance which provides a fine and imprisonment for its violation, and in addition thereto, the forfeiture of the applicants business is an unusual, unreasonable and excessive punishment, and unconstitutional for that reason 82 . 19. License for Trading. A municipality has the power to regulate the sale of meats and vegetables, and to prescribe the limits within which the trade or calling shall be carried on without a license. It may require a bond for protection and regu- lation, and may require such reasonable fee as will com- pensate either partially or fully for the additional expense of inspection and regulation therein incurred. An ordinance of this kind is not against common right, nor in restraint of trade 83 . 79. Mt. Clemens v. Sherbert, Mich. 549; Luton v. Circuit 122 Mich. 674. Judge, 69 Mich. 610. 80. Saginaw v. Swift Electric 83. In Ash v. People, 11 Light Co., 113 Mich. 660. Mich. 347, a license fee of $5.00 81. People v. Decker, 141 was held reasonable. In Peo- Mich. 304. pie v. Baker, 115 Mich. 199, an 82. Robinson v. Minor, 68 ordinance which requires a fee 19 THE LAW OF TAXATION 28 The regulations of hawkers and peddlers is important if not absolutely essential, and is established by the con- curring practice of the civilized states. Peddlers are a class of persons who travel from place to place among strangers, and the business may easily be made a pretense or a convenience to those whose real purpose is theft or fraud. The requirement of a license gives opportunity for inquiry into antecedents and character, and the payment of a fee affords some evidence that the business is not a mere pretense. The business of a transient dealer, however, is subjected to the payment of a fee, must be with a view to taxation, or to cover the expense of regulation under the police power 84 . Act 204, Public Acts of 1895, applied to the upper peninsula; Act 137, Public Acts of 1895 amending this act by attempting to make it applicable to the whole state is invalid. (C. L. Chap. 136). The general statute is therefore in force. Sec. 22, which prohibits peddling with- out a license, but makes an exception in favor of wholesale merchants who sell by sample, etc., and of farmers, etc., is of $5.00 per week for peddling on horses, is held excessive and in- foot and $25.00 for peddling is valid. In Grand Rapids v. held valid. People v. Hatchkin, Braudy, 105 Mich. 670, it is held 118 Mich. 59, an ordinance which within the legislative power of fixed a fee of five dollars for ped- a municipality to require pawn ling on foot and $25.00 for ped- brokers to keep a list of all ling from a vehicle, was held valid. articles purchased and exhibit In Grand Rapids v. Norman, 110 the same to the police. In Mich. 544, an ordinance requir- Muskegon v. Zeeryp, 134 Mich, ing a license fee of $30.00 for 18, the charge of $10.00 for peddling is held not unreason- one week, and $50.00 for a able. In Chaddock v. Day, 75 year for certain articles, and a Mich. 527, a charge of $10.00 graded scale of $2.00 per week per month for selling fresh and $25.00 per year for other meat in a village is held un- articles, is sustained. Same reasonable and in restraint of holding as Alma v. Clow, 146 trade. In Brooks v. Mangan, Mich. 443. 86 Mich. 576, a charge of $10.00 84. Saginaw v. Circuit Judge, for the first day, and $5.00 per 106 Mich. 32. 34; People v. Rus- day thereafter, with an addi- sell, 49 Mich. 619. tional charge for the use of . ' THE TAXING POWER not class legislation 86 . The fact that the legislature has passed a general law in relation to hawking and peddling does not bar a municipality from also imposing a local license 86 . A city may require a license from a local retail dealer, where he solicits from house to house and takes orders to be delivered then or in the future 87 . 20. Liquor License. The imposition of a tax upon the business of selling intoxicating liquors is not a license, and is not in violation of Art. IV. 47, of the State Constitution, which prohibited any act authorizing a license to sell intoxicating liquors 88 . The statute does not create or authorize the business but rather assumes its existence (whether lawful or unlawful, can make no difference), and, viewing the traffic with dis- favor, the legislature, as has the law making power of every civilized state and nation, by resort to police power, sought in various ways to prevent and restrain, by its enactments, the evil effects upon the state and society. The object of the statute in question 89 , was to curtail the traffic, show legislative disapproval and to ascertain extent, provide revenue to aid in ameliorating the evils which the trade has never failed to entail upon the community. The excessive use. of intoxicating liquors has fallen under universal condemnation, and its use has been so closely connected with its abuse as to render legal prohibition or regulation absolutely necessary for the protection of society. State legislation taxing the sale of intoxicating liquors has been held valid and constitutional, under the police 85. People v. De Blaay, 137 87. Allport v. Murphy, 153 Mich. 402; People v. Sawyer, Mich. 486. 106 Mich. 428. 88. This section was stricken 86. Alma v. Clow, 146 Mich, out of the constitution in 1876. 443. 89. H. S. 551277-1280. 20 THE LAW OF TAXATION 30 power of the state, in every state where the question has been raised, and in the Supreme Court of the United States 80 . An act to "provide for the taxation of the busi- ness of manufacturing and selling" liquors, will support a direction as to how the money collected shall be used 91 . C. L. 5379, providing for an annual tax of $500.00 on wholesalers, and exempting the manufacturers therefrom, is constitutional. The exemption of the manufacturer extends only to sales made at the brewery. Should he sell at any other place, he would have to pay the wholesalers tax of $500.00 9a . A city ordinance requiring the payment of $500.00 license to the city, is reasonable 93 . A city can- not, however, grant a license for a longer time than that provided by statute; and an ordinance attempting to do so will be void 94 . It is not in the power of a council to permit a greater latitude in the regulation of saloons, than the statute authorizes; as to allow them to be kept open for a longer 90. People v. Walling, 53 92. People v. Voorhis, 131 Mich. 264, 267; Bartemeyer v. Mich. 398. Iowa, 18 Wall. 129; License 93. Wells v. Torrey, 144 cases, 5 How. 504; Gibbons T. Mich. 689; Sherlock v. Stuart, Ogdon. 9 vvHieat. 205; Passen- 96 Mich. 193: People v. Blom, ger cases, 7 How. 283. Doran 120 Mich. 45. In Dool v. Cass- v. Philips, 47 Mich. 228, hold- apolis, 42 Mich. 547, it is held ing that the liquor tax is not a that the legislature may auth- mere 'debt, but a condition pre- orize the municipality to levy a cedent to making sales of tax in respect to the saloon liquor. Its primary purpose is business; but where notice of not for revenue, but to restrain such levy is required, it must the sale of a dangerous com- be given. An ordinance, how- modity. Potter v. Homer Vil- ever, providing a license for the lage, 58 Mich. 212, sustains the sale of liquor will be void right of the legislature to deter- where the charter expressly mine on what terms liquors prohibits the sale of liquor; shall be sold. These terms the Betts v: Reading, 93 Mich. 77. local bodies cannot change. 94. Albion v. Boldt, 145 91. Westenhausen v. The Mich. 285 People, 44 Mich. 269. :;i THE TAXING POWER period than the statute provides 05 . An ordinance providing that no person shall permit drunkards, intoxicated persons, tipplers, gamblers, person having the reputation of pros- titutes, or other disorderly persons, to congregate at their place is unreasonable and void 98 ; but an ordinance which provides that a person found loitering around bar-rooms, day or night, for two weeks, without a satisfactory reason, may be fined and imprisoned, is valid, though such a person at common law may not be a disorderly or a vagrant 97 . It is beyond the power of the council to enlarge the ordinary meaning of the word "saloon," and charge a person as a saloon keeper who sells liquor at private houses. All ordinances for the suppression of saloons, based upon the general incorporation act of 1875-1883, were repealed by the liquor law of 1887 98 . Even where the sale of liquor is prohibited, either by statute or the constitution, a municipality may license saloons, since a saloon does not necessarily sell intoxicating liquors 99 . Where the sale is prohibited by the constitution, the legislature cannot authorize an ordinance permitting such sales; and an ordinance passed while such a provision of the constitution was in effect, will not be given life by a subsequent amend- ment of the constitution striking out snch prohibitive clause 1 . 95. People v. Furman, 85 1. Dewar v. People, 40 Mich. Mich. 110, construing 17 of 401. In Fitzpatrick v. Weaver, Act No. 313 of 1887. 147 Mich. 382. a city of the 4th 96. Grand Rapids v. New- class is held not to have power man, 111 Mich. 48. to impose a license of $300.00 97. In re Stegenga, 133 Mich. for running a saloon where in- 56. toxicating liquors are sold, 98. Sparta Village v. Boo- since the charter provides that ram, 129 Mich. 555. such cities shall not license the 99. Wolf v. Lansing, 53 sale of such liquors. Mich. 367. Ji-.'l THE LAW OF TAXATION 32 21. Prescribing Limits of Sale. The charter of a village may authorize it to suppress saloons; and: such ordinances will be valid 2 . Although a village council may have authority to suppress saloons, it cannot close those it has already licensed, nor refuse to grant a license where the tax money has been paid and a bond tendered, because it subsequently passed an ordinance suppressing saloons 3 . Where the power to regulate and prescribe the location of saloons is given, the council may establish a saloon district 4 ; but where the power only is given to regulate or suppress them, it must do one or the other in toto, it cannot regulate them in one part of the municipality and suppress them in another part 5 . The legislature may establish saloon districts, or prohibit the sale of liquor in certain specified districts. It becomes immaterial that the principal offered his tax and bond before the act was passed 6 . Act No. 313 of Public Acts of 1887, does not apply to sales made upon public waters, beyond the shore line of the 2. Post v. Sparta Village, 58 C. L. 3107, to provide for Mich. 212. In re Hauck, 70 saloon limits, and that no Mich. 396, it is held that an act license shall be granted except entitled to regulate the sale of in those limits; Johnson v. Bes- liquor, will not support legisla- semer Council, 143 Mich, 313. tion prohibiting" its sale, and In White v. Bracelin, 144 Mich, that Act No. 197 of the Public 332, it is held competent to pro- Acts of 1887 is unconstitutional vide that no saloon shall be for that reason. kept open within 100 rods of 3. Warner v. Lawrence Vil- any public school. In Whitney lage, 62 Mich. 251. v. Gd. Rapids, Twp. Board, 71 4. Johnson v. Bessemer Mich. 234, it is held competent Council, 143 Mich. 313; Sher- to prohibit the sale of liquor lock v. Stuart, 6 Mich. 193; within one mile of the soldier's Churchill v. Detroit Council, home. The principle involved 153 Mich. 96. is the same as establishing fire 5. Timm v. Caledonia. Coun- limits, and the material for cil, 149 Mich. 323. building to be used within such 6. Rose v. Ann Arbor Coun- limits; Micks v. Mason, 14S cil. 134 Mich. 102. Cities of the Mich. 212. 4th class have a right under 88 THE TAXING POWER township 7 . The legislature may prohibit the sale of liquor to Indians, or to Indians of the half blood 8 . It is also competent to provide that females under 21 years of age shall not remain in or about a saloon . The legislature may authorize a municipality to forbid, by ordinance, the em- ployment of any females in a saloon, or forbid females resorting there to drink 10 . $22. Ex Post Facto Regulations. A licensee obtains no vested rights to conduct his business during the life of the license obtained, upon the same con- ditions as prevailed when the license was granted. The sovereign power of taxation and police powers are in- volved. They are state powers, residing together and capable of harmonious employment to effect the ends of good government. Where the object will admit the co- operation of their energies without multifariousness, there is no objection. A saloon-keeper carries on his business subject to the authority and duty of the legislature to adopt the best means which its wisdom could devise to protect the lives, health and property of the citizens and maintain good order and preserve the public morals. It may, therefore, after the license has been taken out, lessen the number of days in a year in which a saloon may be kept open 11 . 23. The Liquor Dealer. % No one possesses a natural, inalienable, or constitutional right to keep a saloon for the sale of intoxicating liquors. 7. People v. Bouchard. 82 (N. S.) 1040. Mich. 157. 10. People v. Case, 153 Mich. 8. People v. Gebhard. 150 98 and cases cited. Mich. 192. 11. Reithmiller v. People. 44 9. State v. Baker, 13 L. R. A. Mich. 280, 285. (Si 23 THE LAW OF TAXATION 34 To sell intoxicating liquors at retail is not a natural right to pursue an ordinary calling. The legislature may determine who may carry on the business, and the time when, and the place where, it may be carried on. It is notorious that the low, the vicious, and the criminal are often engaged in it. The people, under our constitution, have the right to prohibit such people from engaging in it. The restrictions and conditions upon it are entirely within the discretion of the people, through the legislature. The legislature may enact that only reputable persons shall be allowed in the business, and may authorize the muni- cipalities to determine the question of fitness. A require- ment of an ordinance that the applicant should be recom- mended by twelve reputable citizens, and be of good moral character, is valid 12 '. The particular qualifications of the dealer, if any restrictions are imposed, must be fixed by the legislature; they cannot be left to the discretion of the municipality. Where a municipality required that the applicant should be a person whose character and habits would not render him unfit for the business, such a re- striction, though authorized by statute, was held uncon- stitutional, since no rule of guidance had been fixed and the whole matter had been left to the caprice of the council. The same persons were to be the judges of the proper causes of rejection, as well as the fitness of persons under 12. Sherlock v. Stuart, 96 to enact this ordinance was Mich. 193; in People v. Blom, based upon the general power 120 Mich. 45. an ordinance is to regulate the business. In sustained which required the Wells v. Torrey, 144 Mich. 689, applicant to furnish a certificate it is held competent to require of good moral character from a payment of $500.00 to the six reputable citizens, and to city, upon an application ap- give a bond in the sum of $2,- proved by a certain number 01 000.00 to conform to the ordi- reputable citizens, nance. It seems that the power 35 THE TAXING POWER 23 such causes, subjecting every one to the mere will of his neighbor 13 . A single sale in gross does not constitute a dealer; he is one who makes successive sales 14 . But the sale of a single pint of liquor constitutes a dealer under H. S. 2270 18 . A club for social purposes becomes a dealer when it distributes liquor among its members by the glass, the money going into the club treasury 16 . A manufacturer of beer has no right to sell his own product at retail, without paying the retail license 17 . The state cannot impose a tax upon a dealer for selling beer in the original package, which was made in another state, and shipped here and stored to be sold, since such tax attempts to regulate inter-state com- merce 18 . A druggist who sells liquor as a beverage is a retail dealer and must pay the retail license 19 . But a single sale of liquor by a druggist will not constitute the offense of keeping a place for the illegal sale of liquor, though he may be guilty of illegally selling liquor 20 . Where the sale of liquor is prohibited, either by the constitution or by statute, the municipality cannot license a liquor dealer to engage in the business ; and the changing of the constitution or statute will not give life to a formerly void ordinance 21 . Where, however, a municipality is authorized to grant a license, and the dealer has paid his tax and tendered a statutory bond, the council cannot refuse to issue his license because it subsequently prohibited the 13. Robinson v. Minor, 68 18. People v. Lyng, 10 Sup. Mich. 549 and 556. Ct. Rep. 725, reversing same 14. Averall v. Bizeau, 37 case in 74 Mich. 579. Mich. 506. 19. Luton v. Circuit Judge, 15. People v. Kropp, 52 69 Mich. 610. Mich. 582. 20. Maynard v. Eaton Judge. 16. People v. Soule. 74 Mich. 108 Mich. 201. 250. 21. Dewar v. People, 40 17. People v. Gresser. 67 Mich. 401. Mich. 490. THE LAW OF TAXATION 30 sale of liquor such dealers rights had become fixed and could not be revoked by the council 22 . The council cannot refuse to renew a license because the dealer has violated the conditions of a former license, unless the statute expressly authorizes such action 23 . 24. Liquor Dealer's Bond. The council is the sole judge of the sufficiency of the bond; if this discretion is exercised in good faith, the result will not be reviewed by the courts 24 . If, however, the court does frame issues, and finds that the council acted in bad faith, and that the sureties are sufficient, a writ of mandamus will issue 25 . It must clearly appear on what grounds the council rejected the offered bond, or the writ will not issue 26 . The council will be compelled to approve a bond when it clearly appears that the statute was com- plied with. If a bond is rejected, the objection must be stated, and a speedy opportunity given for meeting the objection 27 . The council must consider the personal, as 22. Warner v. Lawrence Vil- is not bound by the affidavit of lage, 62 Mich. 251. the surety, if they have knowl- 23. Cox v. Jackson Council, edge tending to show the con- 152 Mich. 630. trary: Palmer v. Trustees of 24. Divine v. Lakeview Vil- Hartford, 73 Mich. 96. But lage. 121 Mich. 433. In Bailey where the council refuse, in y. Circuit Judge, 128 Mich. 627, good faith to examine a liquor it is held that the Court will bond mandamus will be to corn- not be compelled to frame an pell an examination. Hawkins v. issue. The refusal to approve Litchfield Village, 120 Mich. 390. will not be reviewed on the 25. Farr v. Anderson, 135 ground that there was an in- Mich. 485. sufficient investigation. Biggs 26. Negley v. Sturgis Coun- McKinley, 131 Mich. 154. cil, 44 Mich. 1; Goss v. Ve- Where it appears that the montville Village. 44 Mich. 319; board has acted in good faith, Parker v. Portland Trustees, a mandamus will be refused; 54 Mich. 308. Post v. Soarta Board, 64 Mich. 27. Potter v. Homer Village, 597; McHenry v. Chippewa 59 Mich. 8, 12. Board, 65 Mich. 9. The council 37 THE TAXING POWKR i .M well as the real, property of a surety. And while a dealer may not have an unlimited right to make further showings, he has some rights 28 . A provision that a surety should not be engaged in the liquor business, either as principal or agent, is unconstitu- tional, inasmuch as it deprives a person of his right to use his property as he pleases. It is also contrary to the 14th amendment to the constitution of the United States, which provides that no state shall abridge the privileges or im- munities of citizens of the United States, nor deny to any person within its jurisdiction the equal protection of the laws 29 . A provision, however, which precludes a surety from being such on more than two liquor bonds, is valid 80 . Under Act No. 266 of Public Acts of issir,, qualifying as indemnity company to go upon a liquor bond, and pro- viding 1 that the certificate of the commissioner of insurance shall be conclusive proof of the solvency of the company, the council will not be compelled to accept a foreign cor- poration as a surety when they have honest doubts as to its solvency 31 . A bond given by one firm does not inure to the benefit of its successor, although one of the members of the old firm may remain in the new firm 32 . The council cannot require more than two sureties, though the dealer has the right to offer a greater number 33 . Where, by mistake, the penalty is left out of the bond, it will be enforced at the lowest statutory penalty where the sureties have justi- fied in that sum and the statute required the sureties to 28. Post v. Sparta Board, 63 31. Schmitt v. Clinton Coun- Mich. 323. cil, 111 Mich. 99. 29. Kuhn v. Detroit Council. 32. Mathews v. Carman, 110 70 Mich. 534. Mich. 559. 30. Wolcott v. Superior 33. Power v. Litchfield Vil- Judge, 112 Mich. 311. lage, 141 Mich. 350. THE LAW OF TAXATION 38 justify at the penalty of the bond 34 . The neglect of the sureties to justify will not invalidate the bond 35 . The liability of the surety attaches on the approval of the bond; and he is estopped from denying anything re- cited therein. They remain liable for the year for which the bond was filed though they move away 38 . They remain liable during a subsequent change of the statute in so far as the new statute contains the same provisions of the former law. The fact that the surety might not be able to justify or qualify under the new law does not release him from the bond 37 . Act 313 of Public Acts of 1887 provided grounds on which the county treasurer might demand a new bond ; but no method of procedure was prescribed for determining these facts. The specified causes for which a new bond might be required were not illegally laid down, but no method was provided of getting at the facts by a hearing before any one. Such important powers cannot be exer- cised by the county treasurer arbitrarily; nor can he, at his discretion, determine the proceedings which are neces- sary to give him jurisdiction to act. These proceedings can only be determined by the legislature 38 . Liquor bonds in the county treasurer's office are open to public inspection 39 . A mandamus will not lie at the in- stance of a private individual to compel an inspection of the record of druggists sales, though the statute provides for such right. This is upon the principle that a private 34. Garrison v. Steele, 46 Mich. 8. Mich. 98. 38. Dunham v. Hough, 80 35. People v. Lanning, 73 Mich. 648; Robinson v. Minor, Mich. 284. 68 Mich. 549. 36. Brockway v. Petted, 79 39. Brown v. Knapp, 54 Mich. 620. Mich. 132. 37. Goulickson v. Gjourd, 89 39 THE TAXING POWER 25 individual cannot use this writ unless he is peculiarly in- terested 40 . The county treasurer's bond requires him to account for the liquor tax collected by him 41 . He has no right, how- ever, to receive the tax until the bond has been filed 42 . Neither the municipality, not its officers, are liable for a wilful refusal to approve a bond, since it is a judicial act 48 . A majority vote of the council may approve a bond 44 . It is competent to provide that a municipality may, or may not, accept a surety company's bond, at its discretion 45 . 25. Collection and Payment of License. The county treasurer is the agent of the township or city in collecting the liquor tax, and the county is not liable therefor 46 . The primary purpose of a liquor tax is not to increase the revenues of a locality or municipality, but to restrain the sales of a dangerous commodity, and to con- fine them in the hands of responsible and law abiding par- ties, who can make good the claims laid upon them. The payment of the money to a municipality is resorted to as an equitable distribution, somewhat disproportioned to the mischief likely to arise from the traffic. No community has the right to determine for itself whether this money shall be collected, nor to change the charge into an ordi- nary debt by taking a promissory note therefor. The tax is not a debt, but a condition precedent to making sales, 40. Thomas v. Hamilton, 101 45. Inay v. Cheyboygan Mich. 387. Judge, 150 Mich. 457. construing 41. Marquette County v. Local Act of 1907, May 1st. So, Ward, 50 Mich. 174. House enrolled Act 183 of 1907, 42. Attorney General v. permitting the Village of Perry Huebner. 91 Mich. 436; Rode v. to accept Surety Company Phelps, 80 Mich. 610. bonds, is permissive; Hicks v. 43. Amperse v. Kalamazoo, Perry Village, 151 Mich. 88. 75 Mich. 228 and 234. 46. Marquette Co. v. Dillon, 44. O'Halloran v. Mayor etc., 49 Mich. 844. 107 Mich. 138. 26 THE LAW OF TAXATION 40 to be enforced by criminal prosecution if necessary. To change the demand into an ordinary debt is against public policy 47 . The right of the municipality to the liquor tax becomes vested at the time the law says it should be paid, and sub- sequent annexation or change of territory will not change this right 48 . The payment of a liquor tax is voluntary, and like the voluntary payment of any other tax, cannot be recovered back though the party discontinues, or does not go into the business 49 . The treasurer is not bound to keep a written record of those who pay the liquor tax 50 , and will be compelled by mandamus to pay it over to the proper officer 51 . 26. License for Ferries. This tax is a price paid for a franchise or public right, vested in an individual. The most common are the grant of a right or privilege of making roads, bridges, establish- ing ferries, and taking toll for the use of the same. A ferry is a public highway across a stream of water by boat instead of by bridge. It is as clearly a creature of local legislation as is a road or bridge. The regulation of a ferry does not interfere with, nor is it a part of, the power of congress to regulate commerce between the states or with foreign nations 52 . 47. Doran v. Philips, 47 Curry v. Tawas Twp, 81 Mich. Mich. 228. In Hatch v. Reid, 355. 112 Mich. 430, it is held that a 50. People v. Pequin, 74 note given to a county trcas- Mich. 35. urer personally for money actu- 51. East Saginaw v. Saginaw ally loaned by him to pay the Co. Treasurer, 44 Mich. 273. tax, which money was paid into 52. Chilvers v. People, 11 the county treasury, is valid as Mich. 43, 50: Gibbons v. Ogden, being a personal loan. 9 Wheat 203; New York v. 48. Springswells Twp. v. Milan, 11 Pet. 133; People v. Wayne Co. Treasurer, 58 Mich. Babcock. 11 Wend. 586; Con- 210. way v. Taylor. 1 Black. 603. 49. See Refunding Taxes. CHAPTER II. KIXDS OF TAXATION*. 27. Institute Fees. 28. Tolls. 29. Ad Valorem Tax. 30. Specific Taxes. 31. Express Companies. 32. Railroad Companies. 33. Union Depot Companies. 34. Railroad Companies. Exemption from Taxation. 35. Street Railway Companies. 36. Insurance Companies. 37. Telegraph and Telephone Companies. 38. Tax upon Privileges. 39. Protective Taxation. 40. Inheritance Tax. 41. Internal Revenue. CROSS-REFERENCES. Bonuses, 9, 10. Drain Tax, 282, 292. Special Assessments, 316. 27. Institute Fees. These are charges for taking examinations, or making a contract, etc., or receiving employment. They must be uniform as to each class they apply to. These charges are not specific taxes and therefore do not violate the constitu- tion 1 . 1. Hammond v. School sions of the constitution. See, Board, 109 Mich. 676, sustains also. State v. French, 17 Mont, this statute, holding that it does 54. not violate any of the provi- 28 T*HE LAW OF TAXATION 42 Statutory Provision. C. L. '97, 4839, provides: "That all boards or officers authorized by law to examine applicants for certificates of qualification as teachers shall collect, at the time of examination, from each male applicant for a certificate, an annual fee of one dollar, and from each female applicant for a certificate an annual fee of fifty cents." The section further provides that the director and secretary shall not employ any teacher who has not paid the fee without collecting it at the time of making the contract. 28. Tolls. It is within the power of the state to permit the taking of tolls upon the inland streams of the state, as well as to authorize the taking of tolls upon other highways. The taking of tolls is not in conflict with the constitution; nor, in respect to streams, is it contrary to the Ordinance of 1787 which declares the navigable waters of the Northwest Ter- ritory forever free. The chief object of the Ordinance of 1787 was to secure the same rights to non-residents as should be granted to residents, and to prevent any discriminating burdens. The Constitution of the United States has secured this equality of rights among the citizens of the different states, and the constitution of Michigan has secured the common right of passage in all navigable waters. The controversy, there- fore, is narrowed down to the inquiry whether the state has a right to provide for improving waters that need im- }; KINDS OF TAXATION 28 provement, and for allowing tolls to be charged for using the improvements. The idea that tolls for the actual use of passage over land or water highways can be treated as taxes, and as an in- vasion of private property, is not tenable. They are not levied on property, or on persons, as their share of any public burden laid on the people, but they are a fixed com- pensation in lieu of a quantum valet for the use of that which has value and which is actually used to advantage. The statute referred to contemplates that in all probability, without the facilities rendered by the improvement, much of the property floated would not get down the stream at all. They are collected on the same principle as turnpike tolls, or railway and wharfage charges, which no one has ever supposed were public charges at all. Turnpikes and canals are usually open to the use of everybody, on uniform terms, but they are seldom open to use without tolls. In the grants made to this state of lands to build canals and improve streams, tolls have been expressly provided for and author- ized. In both statutes referred to, the waters improved by the St. Mary's river canal and Portage canal, were within the same Ordinance of 1787, and were parts of our great public waters, and not log ways. But congress recognized the propriety of having the cost and current expenses of such improvements paid out of tolls. Under the constitution of this state there is no way of providing for such cases with- out the intervention of corporations and tolls because the state is forbidden to make any public works at its own ex- pense by the express terms of the constitution*. 2. Const, of 1850, Art. XIV, J9 Beecher's Const, of 1908, Art. X. 29 THE LAW OF TAXATION 44 29. Ad Valorem Tax. In general, a tax based upon the assessed cash value of the property is not a specific tax. It is an ad valorem tax, and any enactment of the legislature does not make it a specific tax. Otherwise, the legislature could determine what was meant by the use of terms in the constitution which have a well defined meaning. Nevertheless, the fact that in imposing a specific tax, the value of the thing taxed is taken into account in determining the amount of it, does not change the nature of the tax 3 . A large proportion of the duties on imports are of this description, and so sometimes, are many of the taxes which make up internal revenue. The statute laying them pre- scribes the rule, but requires the action of appraisers in apportioning them between individuals. By far the larger proportion of all state taxation is also upon property by a valuation, and effect can only be given to it by means of assessors, who value the property, and apportion the tax by their estimate. On the other hand, a specific tax is that which imposes a specific sum by the head or number, or by some standard of weight or measurement, and which requires no assess- ment beyond a listing or classification of the subjects to be taxed 4 . 14. Manistee River Imp. Co. v. XIV, 14, Beecher's Constitu- Sands, 53 Mich. 593, 595; Attor- tion of 1908, Art. X, 3. ney General v. Lake Superior Union Trust Co. v. Probate Ship Canal Co., 32 Mich. 233; Judge, 125 Mich. 487, 490; Com. Benjamin v. Manistee River v. Hamilton Mfg. Co., 12 Allen . Imp. Co., 42 Mich. 628; Manis- 302. tee River Imp. Co. v. Lamport, 4. In Pingree v. Auditor 49 Mich. 442. General, 120 Mich. 95, it is held 3. Constitution of 1850, Art. that Act 168 of Public Acts of 45 KINDS OF TAXATION 30, 31 30. Specific Taxes. The constitution provides that the state may impose spe- cific taxes, which shall be uniform. The legislature may provide for the collection of specific taxes from banking, railroad, plank road, and other corporations, on a basis of the cash value of the property. The taxing power of a state is one of its attributes of sovereignty. Where there has been no compact with the federal government, or cession of jurisdiction, for the pur- poses specified in the constitution, this power reaches all of ihe property and business within the state which are not properly denominated the means of the general government, and it may be exercised at the discretion of the state. What- ever exists within its territorial limits in form of property, real or personal, with the exceptions stated, is subject to its laws; and also the numberless enterprises in which its citi- zens may be engaged 5 . Act 178 of Public Acts of 1901, does not authorize a bridge company, which does not own, lease, or operate, a railroad, to pay specific taxes*. 31. Specific Taxes for Express Companies. An express company may be required to pay a specific tax upon its gross amount of current business within the state. Such a provision is not repugnant to the federal 1881, providing for the assess- 5. Constitution of 1850, Art. ment of telegraph and tele- IV, 10. Beecher's Constitution phone lines at their cash value, of 1908, Art. X, 884, 5. at the average rate of taxation Walcott v. People, 17 Mich. in the state for the year prior, 68, 87; Nathan v. State, 8 How. is an ad valorem tax and a tax 373. on property, and therefore 6. North Park Bridge Co. v. should be paid into the general Walker Twp., 143 Mich. 693. fund of the state. 32 THE LAW OF TAXATION constitution which gives congress power to regulate inter- state commerce 7 . Act No. 19 of Public Acts of 1909 pro- vides for the assessment of express companies, by the state board of assessors, in the same manner as railroad companies. 32. Specific Taxes for Railroad Companies. These companies have generally been required to pay a specific tax ; either upon their gross earnings, or upon some ascertained valuation, and upon a rate per cent to be ascer- tained. In Michigan, all specific taxes are placed to the credit of the primary school fund 8 . The municipality may, 7. Walcott v. People, 17 Mich. 68. 8. In People v. Detroit etc. Ry., 1 Mich. 458, it is held that a railroad company incorpor- ated before revision of C. L. 1846, whose charter is silent as to taxation, is liable to pay a specific tax. In Detroit Street Ry. v. Guthard, 51 Mich. 180, it is held that the Tram railway act (C. L. Chap. 167), does not bar the legislature from chang- ing the mode of taxation or the ^amount of the taxes. In People v. Mich. Southern Ry., 4 Mich. 398, it is held that pur- chase money, loans for con- struction, and capital stock, are subject to specific taxes. In State Treasurer v. Auditor General, 46 Mich. 224, it is held that where only a portion of a railroad is within the state, only the portion within the state, or stock representing that portion, can be taxed. A tax upon the entire gross earnings of such a road is illegal. There is a similar holding in Chicago etc. Ry. v. Auditor General, 53 Mich. 79. In Fargo v. Auditor General, 57 Mich. 598. it is held that Act 152 of Public Acts of 1883, requiring taxes on gross receipts of corporations and persons other than railroad companies, running cars over lines in this state, is valid. In M. & G. Ry. v. Auditor Gen- eral, 115 Mich. 291, it is held that the exemption of railroad companies from taxation under Act 174 of Public Acts of 1891, for ten years after their con- struction, does not apply to companies then organized and having part of their line built. Exemption laws are construed strictly. It is also held that the exemption of Union Depot Companies under this act was repealed by Act 228 of Public Acts of 1897. In Com'r v. Wabash R. Co., 123 Mich. 609, it is held that Act 90 of Public Acts of 1891, is constitutional and relates to domestic commerce only; that receipts from mail and express business are to be included in the gross earnings of the pas- senger business. 47 KINDS OF TAXATION and generally does, make the specific tax in lieu of all other taxes, excepting taxes for improvements. Elevators in con- nection with the railroads, terminals and depot property, are not subject to ordinary taxes 9 . When the statute requires the corporation to be taxed a certain rate upon its capital and loans employed in the state, and the auditor general computes that amount upon the statements furnished him by the company without his at- tempting to determine their correctness, the state is not precluded from thereafter enforcing payment of the correct amount. The company should be taxed upon the sum its bonds sold for, not upon the face of the bonds. Stock divi- dends stand on the same footing as the original stock, and 9. In Detroit v. Detroit Ry., 76 Mich. 421, the tax of 1% on gross receipts is held to be in lieu of all city taxes. In Union Depot Co. v. Detroit, 88 Mich. 347, it is held that a grain ele- vator in connection with a de- pot is not subject to ordinary taxes. In Flint etc. Ry. v. Auditor General, 114 Mich. 682, it is held that terminals and depot grounds could not be taxed under the general tax law. In L. S. & M. S. Ry. v. Grand Rapids, 102 Mich. 374, it is held that while the terminal property of a railroad company cannot be sold for taxes for an improvement, yet the company will be liable for such an assessment. In Auditor Gen- eral y. Flint etc. Ry., 119 Mich. 682, it is held that a track, a dock, and land necessary to build the same, are not subject to local taxation. In Auditor General v. Flint etc., Ry., 114 Mich. f>82. it is held that under 511 of Act 206 of Public Acts of 1893 (C. L. 3834). land used in shipping freight is not liable to local taxation; nor will it be because the company permits shippers to pile lumber there- on, without charge, for conven- ience in shipping. In Pere Marquette R. Co. v. Ludington, 133 Mich. 397, it is held that a stock of groceries kept to sup- ply the company's steamers plying between Ludington and Chicago were not subject to local taxation, the specific tax covering such property (C. L. 6277). The company was authorized to own and operate the boats. In Illinois R. Co. v. Irwin, 71 111. 452, it was held that a statute exempting all of the property of a railroad com- pany from taxation did not exempt a ferry boat owned by such company from local taxa- tion, because the company was not authorized to own such boat. In Detroit etc. Ry. v. Com'r., 119 Mich. 132, it is held that rentals, switching charges and interest should be included, and tracks owned, but leased exclusively to other lines, should not DC included in the mileage. 32 THE LAW OF TAXATION 48 should be taxed as paid in. Where the state has neglected to demand its tax from the company, and has in reality never levied the tax claimed, the company cannot be con- sidered to be in default so as to charge it with interest upon past claims found to be due the state 10 . When, however, a company makes false returns to the state officers of its business and earnings, upon which its tax was computed, the state may recover the balance due in an action in equity. The charter of the company making any unpaid tax a lien upon the property of the company, is in the nature of a contract, and the lien therefor is similar to the lien for a mortgage, which would not be defeated by less than the lapse of fifteen years' time 11 . Act 173 of Public Acts of 1901, providing that railroad property shall be assessed at the average rate of taxation for the then current year levied upon other property for which ad valorem taxes are assessed, is valid; and under this act, the state board of assessors hav r e no authority to add to this value of the state, at large, upon the theory that the assessments in the state are too low 12 . Art. 15, 11, of the Constitution of 1850, provided that the rate of taxation shall be the average rate levied in the state. Act iNo. 282 of the Public Acts of 1905, in so far as it attempts to permit the state board of assessors to determine this rate from any source excepting from actual assessment made in the state, is unconstitutional. This loard cannot determine what the rate should be, but only what it is. They cannot take into account property omitted from 10. L. S. & M. S. Ry. v. 14. State, 46 Mich. 193. 12. Board of Education v. 11. Attorney General v. State Board of Assessors, 133: Mich. Central R. Co., 145 Mich. Mich. 116. I ' KINDS OF TAXATION the various rolls, nor what they may deem low valuation 13 . The appeal to the circuit court from the determination of the amount of taxes the Pullman Sleeping Car Companies should pay, is not judicial in its nature; and a writ of error will not lie from the circuit court to the supreme court to review its decision 14 . A bridge company, which does not operate or lease a railroad, is not subject to a specific tax 18 . It is competent, however, for the legislature to give a cor- poration an option to pay taxes upon an ad valorem basis, or a specific tax 16 . Where a general railroad company buys and operates the property of a train railway, such property is not taxable locally, but by the state 17 . Act No. 19 of Public Acts of 1909 provides for the assessment of these companies by the state board of assessors the tax paid to be the average rate of general taxation in the state, upon a valuation of the railroad property fixed by this board. 33. Specific Tax for Union Depot Companies. These companies are railroad corporations, and generally are provided for by laws relating specifically to this class of railroads. A graded specific tax, according to the amount of business transacted per mile of track is general. Sums received for switching, for rental of its tracks, and interest, should be included in the gross receipts. 18 In computing mileage under such a statute, there should be a measurement of a line for each railroad, if it has as 13. Attorney General v. v. Walker Twp., 143 Mich. 693. State Board of Assessors, 143 construing Act 173 of Public Mich. 73: See Beecher's Con- Acts. -titution. Art. X., 84, 5. 16. Attorney General v. 14. Auditor General v. Pul- Arnott. 145 Mich. 416. man Car Co., 34 Mich. 59, con- 17. Detroit v. Detroit Mfg'rs struing Public Acts of 1872, p. R. R. Co., 149 Mich. 530. 89. 18. Chicago, etc. Ry. v Com'r, 15. North Park Bridge Co. 119 Mich. 135. 34 THE LAW OF TAXATION 50 many tracks as there are railroads, no two of which are used exclusively by any one road 19 . 34. Railroad Companies, Exemption from Taxation. It is within the power of the legislature to exempt prop- erty from taxation. These exemptions are strictly construed because such exemptions are in derogation of the sovereign authority and of common right, and therefore, not to be extended beyond the exact and express requirement con- strued strictissimi juris. The exemption from taxation must be construed to have been the personal privilege of the very corporation specifically referred to, and to have per- ished with that unless the express and clear intention of the law requires the exemption to pass as a continuing fran- chise to a successor. If the exemption is to a railroad com- pany, it does not apply to lines built after the exemption was granted; neither does it apply to the successor of that railroad company 20 . A statute may exempt railroads within a certain territory from taxation for a shorter or longer period; but such a statute is a mere gratuity and may be repealed at the pleasure of the legislature. The essential element of a binding con- tract, viz., a consideration, is wanting. Until it is repealed, it is binding 21 . The power of taxation is one of the essential powers of sovereignty, which the state must exercise again and again, 19. Union Depot Co. v. Railway Co. v. Com'rs, 112 U. Com'r, 118 Mich. 340, constru- S. 609. In Manistee etc. Ry. inj? Act 228 of Public Acts of v. Com'r, 115 Mich. 291, it is 1897. In Detroit etc. Ry. v. held that the exemption of Com'r, 119 Mich. 132, it is held Union Depot companies, under that tracks not exclusively con- Act 174 of Public Acts of 1891, trolled by the company are not was repealed by Act 228 of to be computed as part of its Public Acts of 1897. mileage. 21. Manistee etc. R. Co. v. 20. L. S. & M. S. Ry. v. Com'r, 118 Mich. 349. Grand Rapids, 102 Mich. 374; 51 KINDS OF TAXATION ?-'Jl as often as its needs or its interests may require; and one that cannot be crippled in the least or abridged, without to that extent crippling the state, impairing its vitality, and in some degree endangering its existence. It is upon this ground that it has been so often and so earnestly denied by learned and able jurists, that it is within the grant of authority to any legislative body, chosen as representatives of the people, to enter into any contract, by which they bargain away any portion of the power to levy taxes for the need of the government. For the representatives of the people do not receive the powers of government for any purpose of sale or grant, but they take them in trust for a brief period, to be employed for the general welfare, within such limits as the people may have prescribed, and under obligations to transmit them unimpaired to their successors. A repeal of a bounty law absolves the state from all obli- gation to pay the bounty upon anything that shall be manufactured afterwards. The fact that large investments will thereby be rendered unproductive cannot be considered. The bounty that is to be given by way of exemption does not rest upon any different basis. The state promises not to tax ; but this means only that it will not tax so long as me promise is a continuing one,, and the condition on which it is made is performed. Those who pursue the manufacture until the promise is recalled, have earned the exemption to that time, but they have earned nothing more. For protection against loss from its recall, they must appeal to the generosity of the legislature, and its sense of right and justice. The people of the state are being pressed with arguments to demonstrate the necessity of railroad improvements, and the great and urgent importance of individuals and com- munities lending them their aid. There are not wanting 35 THE LAW OF TAXATION 52 plausible arguments in favor of exempting all such improve- ments from state and local taxation, in consideration of the benefits they confer upon the state, in extending settle- ment, enhancing the value of lands, and increasing the facilities for commerce and travel. So great a boon as a perpetual exemption from taxation is one for which this interest might afford to labor earnestly and persistently, and if the incidents of an irrepealable contract can be discov- ered in such a law, he would be no vain alarmist who should confidently predict the speedy coming of the time when mil- lions of property of this description would be found to be forever exempt from taxation, under improvident and hasty legislation, passed under the specious pretense of encourag- ing struggling enterprise 22 . 35. Street Railway Companies. These franchises, for purposes of assessment, are treated, as part of the roadbed and other tangible property. The franchise and roadbed are assessed together, without separ- ation, in the several assessing districts ; the rolling stock and personal property are assessed at the main office. Under our present system, these railways do not pay a specific tax 23 . The original act for the incorporation of tram railways provided for a specific tax upon the amount of their capital stock paid in. This remained in force until 1882, when they were placed upon the same footing as a natural person, and 22. East Saginaw Mfg. Co. Sup'rs, 93 U. S. 595. v. East Saginaw, 19 Mich. 259, 23. Detroit Citizens Ry. v. 276: Welch v. Cook, 97 U. S. Detroit, 125 Mich. 673. In De- 541: Tucker v. Ferguson, 22 troit v. Circuit Judge, 127 Wall. 527: Grand Lodge F. & Mich. 604, it is held that the A. M. v. New Orleans, 166 U. rolling stock cannot be taken S. 143: West Wis. R. Co. v. on a levy. 53 KINDS OF TAXATION made taxable upon an assessed valuation of their property- 1 . The Ordinance of 1887, fixing upon one per cent of the gross earnings, in lieu of all city taxes, bars all other city taxes. The city could not collect the regular taxes and the one per cent too. The tracks of a street railway are insep- arable from its franchise, and not being taxable as land, it should properly be taxed as an entirety to the corporation, in one place, so far as within one city 25 . Under the franchise granted to the Detroit City Railway, it was to pay a per- centage of its gross earnings, and also taxes upon its lots and parcels of land. It afterwards erected an expensive power house building to generate electricity, this taking the place of a great number of horses. It was held that the local assessors were justified in placing this property upon the tax rolls, though some of the machinery might be re- moved 26 . 36. Insurance Companies. The law relative to these companies are very similiar to the banking laws as to the principles of assessment. The value of the real property upon which it pays taxes, and its liabilities, are deducted from its assets, and it is taxed upon such balance. While mortgages were assessed as real estate, they were also to be deducted from the assets, any provision to the contrary being unconstitutional 27 . The advance 24. Detroit Street Ry. v gages shall not be deducted Guthard, 51 Mich. 180. from the assets, is held uncon- 25. Detroit v. Detroit City stitutional, as violating the rule Ry.. 76 Mich. 421, 428. of uniformity. It would seem, 26. Detroit United Ry. v. however, that such provision State Tax Com'rs, 136 Mich. would be valid if the mortgages 96. were otherwise assessed. Under 27. Standard Life lus. Co. the law of 1891, mortgages v. Assessors, 95 Mich. 466. 52 should be deducted from the and 4 of Act 2fi of Public Acts assets of the company in deter- of 1893, providing that mort- mining the amount to be 37, 38 THE LAW OF TAXATION 54 premiums paid to the company are properly included in its assets ; and the action of the insurance commissioner in de- termining the amount of personal property is final 28 . 37. Telegraph and Telephone Companies. Under the statutes of 1851, a specific tax was imposed upon these companies. Act No. 77 of Public Acts of 1879 and Act No. 168 of Public Acts of 1881 attempted to re- peal the first act. These latter acts being unconstitutional, were of no effect, and left the first act in force 20 . Act No. 19 of Public Acts of 1909, provides for assessing these companies similar to railroad companies. 38. Tax Upon Privileges. The power of the state to tax civil rights as privileges is undoubted. It extends so far as to cover occupations and assessed. Council v. Assessors, Board of Equalization, 74 la. 91 Mich. 78; Latham v. Board 176; Hawkeye Ins. Co. v. Board of Assessors, 95 Mich. 509; De- of Equalization, 75 la. 770. troit River Savings Bank v. 29. Detroit & Western Board of Assessors, 95 Mich. Union Tel. Co., 130 Mich. 479. 514; Robinson v. Board of Prior to holding these acts bad, Assessors, 95 Mich. 516; Stand- the court, in Pingree v. Auditor ard Life etc. Co. v. Board of General, 120 Mich. 95, held that Assessors, 95 Mich. 517. a tax assessed under the law 28. Mich. Mutual Life Ins. of 1881 was an ad valorem tax Co. v. Hartz, 129 Mich. 104; De- upon property, and that the tax troit Fire Ins. Co. v. Hartz, 132 collected from these companies Mich. 518. In Mich. Mutual under that act should be paid Life Ins. Co. v. Detroit Council, into the general fund of the 133 Mich. 408, it is held that state. In Attorney General v. the reserve of a life insurance Common Council, 113 Mich, company, required to be kept 388, it is held that the Detroit for the benefit of policy holders Telephone Company, organized is to be treated as a debt due under 3 H. S. 3718h, C. L. '97, or to become due, within the 6695, is not subject to local meaning of the statute. The taxation, but that telephone last above case is distinguished. companies are taxed under Act This rule is followed in Life 168 of Public Acts of 1881, and Ins. Co. v. Lott, 54 Ala. 499; pay their tax to the state treas- Equitable Life Ins. Co. v. urer. .">:> KINDS OF TAXATION sales. Every laborer or farmer, merchant, mechanic or professional man, may be taxed for the privilege of pur- suing his calling 30 . The legislature may raise revenues by capitation taxes, by special taxes upon carriages, horses, servants, dogs, fran- chises, and upon every species of property and upon all kinds of business and trades. These are not taxes upon property, and have not usually been called such. They are held to be taxes upon privileges or civil rights and exer- cised by sanction of law 81 . Act 29 of Public Acts of 1887, providing for the creation of water power companies having the privilege of paying specific taxes, is valid. This act provides for the use of waters from Lake Superior or the Saint Mary's river, and does not authorize the diversion of other water. The act cannot be called class legislation, because so confined in its application. The giving of the company an option to pay either an ad valorem, or a specific tax, is not the delegating of legislative power, but the im- position of a condition upon the company. The legislature may make such regulations and conditions as it pleases with regard to the taking effect of laws. They may be absolute, conditional, or contingent; and if the latter, they may take effect on the happening of any event which is future and uncertain 32 . 39. Protective Taxation. A protective tax, under the guise of a specific tax, cannot be imposed where its manifest intent is to encourage local 30. Union Trust Co. v. Pro- Y. 183; People v. Equitable bate Judge, 125 Mich. 487, 491; Trust Co., 96 N. Y. 387; Port- Webber v. Virginia, 103 U. S. land Bank v. Apthorp, 12 Mass. 344; Shepperd v. Sumpter Co., 252. In re McPherson, 104 N. 69 Ga. 535. Y. 306. 31. People v. Brooklyn, 4 N. 32. Beadle v. Arnot, 145 Y. 419; Stuart v. Palmer, 74 N. Mich. 416. $40 THE LAW OF TAXATION 5G industries. It then becomes a tax upon interstate commerce. Thus, a statute which provided a specific tax upon mining and smelting companies of one and one-half cents per ton upon all ore shipped out of the state, but no tax upon ore smelted within the state, was held void 33 . 40. Inheritance Tax. Among the civil rights sanctioned by law, is the right of succession to property; and the weight of authority holds that such a tax is a tax upon a privilege, and not a mere tax upon property. Such taxes are not usually prohibited by state constitutions requiring uniformity of taxation, because taxes on property alone are referred to in such provisions 34 . 33. Public Acts of 1865, p. 44; Jackson Mining Co. v. Auditor General, 32 Mich. 488. 34. In Union Trust Co. v. Probate Judge, 125 Mich. 487, the original act is held valid, excepting the provision that the costs and expenses of en- forcing the act should be paid out of the tax collected. It is held that the entire tax must be applied to the school funds. It is also held to be a specific tax, of a progressive rate, arrived at upon an ad -valorem basis. Personal notice to the legatee is not required by the constitution since this tax is not a taking of the property of the legatee, but is imposing a condition upon the acquisition of the property. The duties imposed upon the judge of pro- bate are legal. In re Fox Est. 15 L. N. 675, Mich, . ., the court says : "This is not a tax on money ; it is on the right to inherit, and hence a condition of inherit- ance, and it may be graded according to the value of that inheritance. The condition is not arbitrary because it is de- termined by that value; it is not unequal in operation be- cause it does not levy the same percentage on every dollar does not fail to treat all alike under like circumstances and condition both in privilege con- ferred and the liabilities im- posed." The court also holds the above sections 1 and 2, making a progressive rate of taxation for varying amounts inherited, constitutional. It also held that a mortgage given to secure a debt should be de- ducted from the real estate upon which it is given, and not from the personal property of the estate. In Chambers v. Judge of Probate, 100 Mich. 112 Act 205 of the Public Acts of 1893, was held unconstitutional because an inheritance tax is a specific tax ; and that act re- quired the tax to be paid into the specific fund of the state instead of into the primary school fund. See also, Strode v. Com. 52 Pa. 57 KINDS OF TAXATION ji 1" The legislature intended the tax to be measured by the property which it is within the power of the state to tax. The Michigan statute was taken from New York; and we follow the New York decisions in this respect. Moreover, a policy of general taxation which recognizes the policy of the rule of universal succession and the theory of the taxa- tion of personal property at the domicile of the owner, is not logically controlling of the interpretation of a statute imposing a tax upon a right of succession or upon a trans- fer of property which can only be made tangible and enforci- ble in the jurisdiction and by virtue of the laws and insti- tutions of the situs of the property. One state may impose an inheritance tax upon the theory of a fiction that the situs of the personal estate is the domi- cile of the owner, and another may impose it because the property is actually within the state; and thus the same property may be chargeable twice with this inheritance tax. in this state choses in action and stock in foreign corpora- tions, although in the hands of an agent here, are not taxable here ; but land contracts and mortgages should pay the tax here, although they may have been charged with this tax in another state 35 . But the State has no interest in a mortgage which was transferred by will probated before the inheri- tance law took effect 86 . St., 181; Scholey v. Rew, 23 Spencer, 61 N. H. 624; State v. Wall. 331 ; Mager v Grimox, 8 Switzler, 143 Mo. 287. How. 490; U. S. v. Perkins, 163 35. In re Stanton Est, 142 U. S. 639 ; Knowlton v. Moore, Mich. 491 ; Auditor General v. 178 U. S. 41 ; Magnee v. Savings Merrian, 149 Mich. 305, holding Bank, 170 U. S. 288; Lyson v. that mortgages and notes of a State. 28 Ind. 587 ; Eyre v. Jacob, non-resident, upon Michigan 14 Grat. 438; State v. Alston, property were subject to this tax, 94 Tenn. 674 ; State v. Hamlin. though such papers were not in 86 Me. 495. There are state the state. See also Blackstone holding that a successive tax is v. Miller, 188 U. S. 1R9. a tax upon property. See Copes 36. Miller v. Walker. 141 Est, 191 Pa. St. 1 ; State v. Per- Mich. 425 ; Miller v. McLaughlin. ris, 53 Ohio St. 314; State v. 141 Mich. 425. Gorman, 40 Minn. 232; Curry v. 40 THE LAW OF TAXATION 58 The exemption, (2, Act 188 of Public Acts of 1899) refers to the entire estate, and not to each distributive share 37 . A debt secured by mortgage on lands in this State is subject to this tax, though owned by a non-resident, and the note and mortgage are not in the State 38 . A legacy, to a church before payment, is taxable. A declaration of the inheritance tax by the Probate Court, is not res judicata as to the amount assessible 39 Statutory Provisions. Act No. 148 of Public Acts of 1909 provides that no heir, legatee, beneficiary, trustee, executor, admin- istrator or surety shall be held liable for any inheri- tance tax upon the transfer of property in any estate in which the property has been distributed by order of court prior to Jan. 1st, 1905, nor when the admin- istrator, executor or trustee has been discharged by order of court prior to Jan. 1st, 1905. All inheri- tance taxes coming under the above terms are de- clared non-enforceable, and liens upon property there- fore are discharged. Act 188 of the Public Acts of 1901, as amended by Act 195 of the Public Acts of 1903, provides an in- heritance tax upon the transfer of any property of the value of $100.00 or over, in trust or otherwise, in the following cases : (Sec. 1.) "First. When the transfer is by will or by the in- testate laws of this state from any person dyink seized or possessed of the property while a resident of this state. 37. Stillwagen v. Durfee, 130 Mich. 630. Mich. 106. 39. Port Huron v. Wright, 150 38. In re Merrians Est. 147 Mich. 279. 59 KINDS OF TAXATION 40 "Second. When the transfer is by will or intestate law of property within the state, and the decedent was a non-resident of the state at the time of his death. "Third. When the transfer is of property made by a resident or by a non-resident, when such non-resi- dent's property is within this state, by deed, grant, bargain, sale or gift made in contemplation of the death of the grantor, vendor or donor or intended to take effect in possession or enjoyment at or after such death. Such tax shall also be imposed when any such person or corporation becomes beneficially entitled in possession or expectancy to any property or the income thereof by any such transfer, whether made before or after the passage of this act. Such tax shall be at the rate of five per cent upon the clear market value of such property, except as otherwise prescribed in the next section. 2. "When the property or any beneficial interest therein passes by any such transfer to or for the use of one or more of the following named persons : Father, mother, husband, wife, child, brother, sister, wife or widow of a son, or the husband of a daughter, or to or for the use of any child or children adopted as such in conformity with the laws of this state of the decedent, grantor, donor, or vendor, or to or for the use of any persons to whom such decedent, gran- tor, donor or vendor, for not less than ten years prior to such transfer stood in the mutually acknowledged relation of a parent, or to or for the use of any lineal descendant of such decedent, grantor, donor or ven- dor, such transfer of property shall not be taxable under this act, unless it is personal property of the clear market value or two thousand dollars or over. 41 THE LAW OF TAXATION 60 in which case the entire transfer shall be taxed under this act at the rate of one per cent upon the clear market value thereof. The exemptions of sections one and two of this act shall apply and be granted to each beneficiary's interest therein, and not to the entire estate of a decedent." The statute further makes the tax a lien upon the property and provides for its col- lection. 41. Internal Revenue. Upon the principle that the power to tax involves the power to destroy, the general government cannot impose a duty or tax upon the proceedings of any state court. Otherwise, the general government could destroy all of the judicial power of the states by placing an excessive or an impossible tax upon its proceedings 40 . 40. Fifield v. Close, 15 Mich. 276; Jones v. Keep, 19 Wis. 369. 505; Warren v. Paul, 22 Ind. CHAPTER III. TOWNSHIP ORGANIZATION. 542. Organization of Townships. 43. Collateral Attack of Municipal Organization. 44. De Facto Officers. 45. De Facto Officers and Intruders. 46. De Facto Tax Officers. 47. Deputy Officers. 48. The Supervisor. 49. The Supervisor. Suit for Taxes. 50. Change in Roll by Supervisor. 42. Organization of Townships. It has been the policy of the state to leave the financial arrangements on division of municipalities out of the courts, and to leave them to the disposal of the administrative authorities, on business and equitable principles resting largely on sound discretion 1 . Certain designated territory will be recognized as a township for tax purposes until after the necessary officers have been elected. The old township will collect the taxes levied in such a case 2 . 1. Midland Twp. v. Roscom- future. mon Twp. 39 Mich. 424. In 2. Commins Twp. v. Harris- Mich. Land & Iron Co. v. La ville Twp. 45 Mich. 442. It is Anse Twp. 63 Mich. 700, it was held that where the money was held unlawful to assess a high- collected by the old township, way tax on a labor basis, in a mandamus was the proper road district containing no remedy by which the new town- overseer of highways, such tax ?hip could acquire its share of being for use in the remote the taxes. $43 THE LAW OF TAXATION 62 43. Collateral Attack of Muncipal Corporations. The corporate organization of the village or municipality cannot be questioned in a suit between private parties in order to show lack of authority to levy a tax, where the organization has been in existence for several years 3 . The same rule applies to de facto corporations. There are prob- ably few towns or school districts where there has not been some looseness in proceedings to organize them. Such carelessness seldom leads to serious mischief, and when it does, there are usually sufficient remedies without needless intermeddling. The convenience and security of the vicin- age cannot be left exposed to disturbance by every one who chooses to begin a law suit 4 . The court will justly take cognizance of the notorious fact that municipal action is often exceedingly informal and irregular, when, after all, no wrong or illegality has been intended, and the real purpose of the law has been had in view and had been accomplished ; so that it may be said the spirit of the law has been kept while the letter has been dis- regarded. We may also find in the statutes many instances of careless legislation under which municipalities have acted for many years, until important interests have sprung up. which might be crippled or destroyed if then matters of form in legislative action were suffered to be questioned. If every municipality must be subject to be called into court at any time to defend its original organization and its fran- chises, at the will of every dissatisfied citizen who may feel disposed to question them, and subject to dissolution per- haps, or to be crippled in authority and powers if defects 3. Coe v. Gregory, 53 Mic'i. v. Smith. 131 Mich. 70; Carle- 19; People v. Maynard, 15 ton v. People, 10 Mich. 250. Mich. 463; Stuart v. School 4. Clement v. Everset, 29 District, 30 Mich. 70; People Mich. 19, 23. 63 TOWNSHIP ORGANIZATION appear, however complete may have been the recognition of its rights and privileges, on the part alike of the state and its citizens, it may very justly be said that few of our municipalities can be entirely certain of the ground they stand upon, and that any single person, however honestly inclined, may have it in his power in many cases to cause infinite trouble, embarrassment and mischief 5 . 44. De Facto Officers. It is well settled that the acts of an officer de facto, so far as the rights of third persons are concerned, are, if done within the scope and by the apparent authority of the office, as valid and binding as if he were the officer legally elected and qualified for the office, and in full possession of it; and such acts cannot be collaterally attacked 6 . Nothing but the actual incumbency can make a person a legal officer, however much he may be entitled to obtain the office. The only valid proceedings in the name of an office must be those of the actual incumbent; and his acts are valid to all purposes except, possibly, his own protection from liability as a wrongdoer 7 . The public have an interest in the continuous discharge of official duty, and whose necessities cannot await the slow process of litigation to try the title, have a right to treat as valid the official acts of the incumbent, with whom alone. under the circumstances, they can transact business. This rule is obvious and necessary for the protection of organized society; for the affairs of society cannot be carried on unless 5. Stuart v. School District, v. Salomon, 54 111. 41. 30 Mich. 69. 72; Rumsey v. Pco- 6. Auditor General v. Meno- ple, 19 N. Y. 41; Lanning v. nvnee Co., 89 Mich. 552. 571. Carpenter, 20 N. Y. 447; State 7. Board of Auditors v. v. Bunker, 59 Me. 366; People Benoit, 20 Mich. 176, 181. 4 THE LAW OF TAXATION 64 confidence were reposed in the official acts of persons de facto in office. Private individuals, in controversies between themselves, are not permitted to question the acts o'f an officer de facto, for the further reason that to do so would be to raise and determine the title to his office in controversy in a suit to which he was not a party and in which he could not be heard. This would be judging a man unheard, contrary to natural equity and the policy of the law. It is an established principle of law that the acts of an officer, having color of title, in the exercise of the ordinary functions of his office, are valid in respect to the rights of third persons who may be interested in such acts. The adop- tion of such a rule is necessary to prevent a failure of jus- tice and the great public mischief which might otherwise be justly apprehended 8 . The same rule applies to a de facto municipal corporation as to a de facto officer 9 . One whose acts, though not those o'f a lawful officer, the law, upon principles of policy and justice, will hold valid so far as they involve the interests of the public and third persons, where the duties of the office were exercised : First. Without a known appointment or election, but under such circumstances of reputation or acquiescence as were calculated to induce people, without inquiry, to submit to or invoke his action, supposing him to be the officer he assumed to be. Second. Under color of a known and valid appointment or election, but when- the officer had failed to conform to 8. Auditor General v. Meno- Bebee, 9 Mass. 234; Buckham minee Co., 89 Mich. 552, 572; v. Ruggles. 15 Mass. 182. Board of Auditors v. Benoit, 9. Hardwick v. Bassett, 29> 20 Mich. 176, 187; Weeks v. Mich. 19, 23. Ellis, 2 Barb. 325; Fowler v. TOWNSHIP ORGANIZATION 45 some precedent requirement or condition, as to take an oath, give a bond, or the like. Third. Under color of a known election or appointment, void because the officer was not eligible, or because there was a want of power in the electing or appointing body, or by reason of some defect or irregularity in its exercise, such ineligibility, want of power, or defect being unknown to the public. Fourth. Under color of an election or appointment by or pursuant to a public unconstitutional law, before the same is adjudged to be such 10 . 45. De Facto Officers and Intruders. A mere usurper cannot be said to be an officer dc facto; yet who at first was a mere usurper may, by acquiescence, become an officer de facto. Although the officer dc facto may not be required to be in by color of election or ap- pointment, yet he must, to distinguish him from a mere in- truder or usurper, be in by some color of right ; and in harmony with the rule last quoted, it has been said that the color of right which constitutes one an officer de facto may consist in an election or appointment, or in any holding over after the expiration of ones term, or acquiescence by the public in the acts of such officer for such a length of time as to raise the presumption of colorable right by elec- tion or appointment 11 . It may be said that the color of right which constitutes an officer dc facto may consist in an elec- tion or appointment, or in a holding over after the expira- tion of ones term, or acquiescence by the public in the acts 10. State v. Carroll 38 Conn. 11. Auditor General v. Men- 499. approved in Auditor Gen- omince Co., 89 Mich. .V">2. ">7r5. oral v. Menominee Board, 89 quoting from, and approving Mich. 552, 574. Mechcm, Pub. Off., 8319. 45 THE LAW OF TAXATION 66 of such officer for such a length of time as to raise the pre- sumption of colorable right by election or appointment. From considerations of public policy, the law recog- nizes the official acts of such parties as lawful to a cer- tain extent. It will not allow them to be questioned col- laterally, and they are valid as to the public, and as to third persons who have an interest in the thing done. Within the scope of his authority, the acts of an officer de jure are valid for all purposes. Not so with an officer de facto; his acts are only recognized in the law to be valid and effectual so far as they affect the public and third per- sons. As to these, his acts are as valid as though he were an officer de jure. The reason of the rule is apparent. It would be as unjust as unreasonable to require every indi- vidual doing business with such officer to investigate and determine, at his peril, the title of such office. Third persons, from the nature of the case, cannot always investigate the right of one assuming to hold an important office, even so far as to say that he has color of title to it by virtue of some appointment or election. If they see him publicly exercising his authority, if they ascertain that this is generally acquiesced in, they are entitled to treat him as such officer, and, if they employ him as such, should not be subjected to the danger of having his acts collaterally called into question. Besides, it is against the policy of the law to allow a suit between private individuals to determine the title to an office. Such judgment could only bind the parties, and would be of no effect as against the public 12 . 12. Hamlin v. Kassefer, 15 holds the office under some Or. 456, approved in 89 Mich. power having color of authority 552, 573, supra. In Ex parte to appoint: and that a statute, Strang. 21 Ohio St. 610, it is though it should be found re- held that the true doctrine is pugant to the constitution, will that it is sufficient if the officer give such color. In Railway 67 TOWNSHIP ORGANIZATION 546 $46. De Facto Tax Officers. It therefore follows from the preceding sections that in so far as the levying of taxes are concerned, the right of a de facto officer to levy or collect them cannot be questioned in a collateral attack upon the tax 13 . The actual legal right of a person who is exercising the functions of an office cannot be assailed in a collateral ac- tion between third parties; and proof of user or exercise of such functions by anyone who knows the facts will be suf- ficient to give 'full sanction to his acts 14 . Co. v. Langlade, 56 Wis. 614, it is held that although the offi- cers were elective and not ap- pointive, and the appointments made by the Governor were in- valid, yet the offices were prop- erly created and existed de jure; and the persons appointed thereto, having entered upon duties of such offices, were officers de facto, and their offi- cial action could not be at- tacked collaterally. In Cole v. Black River Falls, 57 Wis. 110, it is held that if public offices exist de jure, all persons who are in the exercise of the duties of such offices by color of law, even though such law be after- wards declared to be unconsti- tutional and void, are officers de facto and their acts are valid. In Woodside v. Wagg, 71 Me. 207, it is held that if a judge continue to hold office and exer- cise the functions of judge after accepting another office which, if>so facto, under the statute, vacated his office as judge, yet he would be an officer 'de facto, and with reference to the public and third persons, his acts, in- cluding judgments rendered by him, in cases within the juris- diction of the court, would be valid. In Com'r v. McCombs, Rf> Pa. St. 436, the court says, "When he who is exercising the duty of an officer is acting un- der the apparant authority of an act of the assembly, his title to the office is not to be as- 5 ailed collaterally. An act of the assembly, even if it after- ward be declared unconstitu- tional, is suincient to give color of title, and an officer acting under it is an officer de facto." 13. Stockle v. Silsbee. 11 Mich. 615, holding that the law- ful acts of a de facto collector were valid whether he was legally entitled to the tax roll or not. In Bank of St. Joseph v. St. Joseph Twp., -16 Mich. 52fi, it is held that the Town- ship Board had power to ap- point a necessary secretary and it would be presumed that he qualified. Auditor General v. Longyear, 110 Mich. 223. 14. Facey v. Fuller, 13 Mich. 527; Johns v. People, 25 Mich. 199. In Bird v. Perkins, 33 Mich. 28. it was held that the appointment of a collector would not be inquired into. In Sibley v. Smith. 2 Mich. 487. it is held that the absence of any record in the town books show- ing that the assessors were sworn .does not raise any pre- sumption that they were not ^47, 48 THE LAW OF TAXATION 68 47. Deputy Officers. In general a deputy may do in his own name as deputy, or in the name of his principal, whatever his principal is authorized to do. A deputy county clerk may perform the duties of clerk 15 . The deputy auditor general may act for the auditor general 16 . A deputy county treasurer may act for the treasurer 17 and a deputy collector may act for the collector 18 . 48. The Supervisor. The supervisor acts in a dual capacity, as assessor, and as a supervisor proper. His duties as assessor relate only to the making of the roll, the description and valuation of property, etc., preparatory to the submission of the roll to the board of supervisors; and upon the submission of the roll to that body, his duties as assessor cease and those of the supervisor begin. As supervisor, he cannot impose any tax unless it has been previously authorized by competent authority and duly certified to him by the proper officers. If, as supervisor, he attaches his warrant to the roll when he has imposed taxes without authority, he will be liable in damages to a person injured thereby. He will not be justified, however, in re- fusing to attach his warrant to a roll properly certified be- cause either himself as assessor, or the board of review or the board of supervisors who have power to review his roll, have made erroneous descriptions therein, nor will he be personally liable therefor. Otherwise, all of the valid 15. Callender v. Olcott, 1 17. Maloney v. Mahar, 1 Mich. 344. Mich. 26: Britton v. Ferry, 14 16. People v. Johr, 22 Mich. Mich. 53. 461 ; Westbrooke v. Miller, 58 18. Bird v. Perkins, 33 Mich Mich. 148, 151. 28. >Mi,M AND LOCUS OF PROPERTY It is competent, also, for the legislature to provide for a tax upon the mortgage interest in the land, rather than upon the mortgage itself; and such tax may be made a lien upon the mortgaged premises, which the owner of the land, as well as the mortgagee, may be compelled to pay to save his land from sale. For purposes of taxation the mortgage interest may be treated as real estate 69 . Mortgages and land contracts of non-resident are subject to the inheritance tax here 70 . 65. Stock of Corporations. The assessment of bank stock has heretofore been dis- cussed 71 . Statutory Provision. C. L. '97 3831, Sub. 7, Tax Law, 8, Sub. 7, pro- vides that all shares in corporations organized under the laws of this state, when the property of such corpor- ations is not exempt, or is not taxable to itself ; or when the personal property is not taxed." Stock of domestic corporations having their corporate property assessed in the state, is not assessable by statute. The same rule applies to foreign corporations 72 . Shares in foreign corporations wnqse corporate property is not taxed in this state but is taxed in another state, are assessable at the domicile of the owner. 69. Common Council v. Assessors, 91 Mich. 78, con- struing Act 200 of Public Acts of 1891. In State Tax on For- eign Bonds, 15 Wall. 300, it is heKi that bonds held by non- residents of the state are not taxable; but this case is dis- tinguished in that it was an attempt to tax the bonds, while under the above Act the at- tempt is not to tax the mort- gage, but the mortgage interest (7) in the land. Latham v. Ass'rs, 91 Mhh. 509; Savings Bank v. Ass'rs, 91 Mich. 514; Robinson v. Ass'rs, 91 Mich. 516; Stand- ard Life Ins. Co. v. Ass'rs, 91 Mich. 517. 70. In re Stanton Est., 142 Mich. 491. 71. See 866, 67, post. 72. Graham v. St. Joseph Twp.. 67 Mich. 652; Bacon v. Com'rs. 126 Mich. 22, 25; Stroh v. Detroit, 131 Mich. 109. 66 THE LAW OF TAXATION 98 The constitutional power to tax shares of stock owned by citizens of one state does nqt depend on whether the capital of the corporation is or is not taxed in the state where the corporation was created. The power is the same whether the capital of the corporation is there taxed or not; other- wise, the power of taxation conferred by the constitution would be made to depend upon the operation of laws of a foreign jurisdiction 73 . Such assessment is not in contra- vention of 1 of Art. 4 of the Constitution of the United States, which provides that "full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state." While the constitution might have been so framed as to afford relief against such a disability, "it has not been, and the states are left free to extend the comity which is sought, or not, as they please. No state can legislate except with reference to its own juris- diction. One state cannot exempt property in another state from taxation 74 . Stock of a foreign corporation, owned by a non-resident but in the hands of an agent here, is not assessable 75 . 66. Savings Banks. A corporation is always, so far as its property is .con- cerned, a mere trustee for its stockholders whose interests are in its corporate charge. The conditions imposed by congress on the taxation of property in national banks made it desirable for the state to make bank taxation as nearly 73. C. L. '97, 3831, Sub. 9, Bander, 36 Ohio St. 28, 36; provides that "all shares in Dwight v. Boston, 12 Allen 316. foreign corporations, except na- 74. Bonaparte Tax Court, tional banks, owned by citizens 104 U. S. 594; Bacon v. Com'rs, of this state, shall be deemed 126 Mich. 22, 29. personal property for purposes 75. In re Stanton Est., 142 of taxation; Bacon v. Com'rs, Mich. 491. 126 Mich. 22, 30; Bradley v. ASSESSMENT AND LOCUS OF PKol'KIM Y uniform as possible, the tax laws of 1882 and 1885 have provided that, except as to real estate, all such taxation shall be against the shareholders, who are the equitable and beneficial owners of all the assets, although in law the cro- poration is a distinct person. It can make no great differ- ence to the state whether the cestuis quc trust pay their taxes directly in person, or have them paid by their trustee out of the trust funds. The real estate should be assessed to the bank, and the value thereof deducted from the other assets, which balance will be assessed against the stock 76 . $67. Banks. Under the laws of 1889, bank stock may be assessed to the owner where he lives, notwithstanding it was not re- ported by the clerk. Under this law, bank stock owned by a person residing in the county where the bank is located shall be assessed in the township where the owner resides. It is made the duty of the cashier of the bank to report such stock to the proper supervisor 77 . 76. C. L. '97, 3831, sub. 8. Lenawee Savings Bank v. Adrian, 66 Mich. 273. In Coun- cil v. Detroit, 91 Mich. 78, 98, under Act 200 of Public Acts Of 1891, it is held constitutional to provide for treating mort- gages as real estate. The value of the mortgages should be de- ducted from the capital stock. This holding is approved in Latham v. Ass'rs, 91 Mich. 509 and in three other cases heard at the same time. In Standard Life Ins. Co. v. Board of Ass'rs, 95 Mich. 466, it is held that the tax is not uniform unless so deducted. In Detroit River Savings Bank v. Detroit, 114 Mich. 81, the assessors refused to assess real mortgages and deducted same from the capital stock, following Act 26 of Public Acts of 1893, declared unconstitu- tional in 95 Mich. 466. The bank did not appeal from such action to the council, and was held estopped from bringing suit. 77. Crittenden v. Mt. Clem- ens, 86 Mich. 221; in this case it was held immaterial that the cashier reported the stock to the wrong supervisor, so long as it was assessed in the right locality. The provisions of this statute are mandatory as to the time, place, and manner of assessment. In Muskegon v. Lange, 104 Mich. 19. it is held that the duty of the cashier, under this act. is official and not personal. 6$, 69 THE LAW OF TAXATION 100 Statutory Provision. C. L. '97, 3831, Sub. 8, Tax Law, Sub. 8, provides that all shares in banks organized under the laws of this state or of the United States, at their cash value, after deducting the assessed value of real property owned by and assessed to such banks." 68. Collection of Tax on Bank Stock. The duty of the cashier of a bank being official and not personal, he cannot be compelled by mandamus to, pay the tax assessed against the bank stock 78 . The bank itself, not its cashier, will be liable in an action at law for such taxes as the cashier ought to pay in this respect. Taxes are not debts in the ordinary acceptation of the term, and statutory measures are to be resorted to for their collection. Gen- erally, no others are admissible. The remedy of suit may be given either directly or by implication. If no specific remedy is expressly given, or only an imperfect or an inadequate one, the presumption that a remedy by suit was intended is but reasonable. Such suits would take the ordinary suits prescribed by law for the collection of money demands, except as the statute may have otherwise provided 79 . 69. National Banks. The Act of Congress under which National Banks are organized allow the taxation by the state of the shares of 78. Enke v. Lange, 90 Mich. property on Dec. 1st. Held, that 592; Muskegon v. Lange, 104 this lien did not attach on sales Mich. 19; Enke v. Lange, 104 made prior to Dec. 1st, and that Mich. 26. the bank would not be liable for 79. Bank v. Douglass Co., 3 the tax on stock so sold, follow- Dill 330; Enke v. Lange, 104 ing Boston v. Beal, 51 Fed. 306, Mich. 26, 27; St. Johns National and New Orleans v. Huston, Bank v. Bingham Twp., 113 119 U. S. 265, because it was Mich. 203. construing 40 of out of the power of the bank to Act 206 of Public Acts of 1893, reimburse itself. See Odlin v. providing that all personal taxes Woodruff, 22 L. R. A. 699. should be a lein on the personal 101 ASSESSMENT AND LOCUS OF PROPERTY jj <n 1884.) In Manistique Lumber Co. v. Witter. 58 Mich. 625, the 75 THE LAW OF TAXATION 110 Sub. 2 provides that all animals kept throughout the year in some township other than where the owner resides, shall be assessed to the owner, or person in possession, in the township where kept 12 . Sub. 3 relates to bank stock, for which see 66. Sub. 4 provides that the personal property of minors, etc., shall be assessed to the guardian of the township where the guardian resides 13 . Sub. 5 provides that estates of decedents shall be assessed to the executor, etc., in the township and school district where the decedent last dwelt until notice shall be given that the estate is distributed. If the deceased was a non- principal office of plaintiff was in Detroit. It paid no taxes there. Its lumber was sawed and stored in Manistique Twp. Under Act. 9 of 1882, Sjib. 1, it was held properly assessed in t Manistique Twp. In Hood v. Judkins, 61 Mich. 575, lumber piled on leased grounds to drv, is held "stored" under the law of 1882, and as- sessable where piled. (Tax law of 1884.) The words "for sale of property, office mine, farm, storage, manufactory, for use in connection with such goods and chattels," were added in 1882. In Detroit Transportation Co. v. As- sessors, 91 Mich. 382, it is held that the real office where its prin- cipal business was transacted de- termined the locus of relator's assessment, notwithstanding its articles of incorporation named a different place. (Act 24 of Laws of 1867.) In Comstock v. Grand Rapids, 54 Mich. 641, a manufac- turer lived in one ward and his warehouse and stock in trade was in another. He also owned a number of cars for shipping his products, for which the railroad company made him an allowance for "wheelage." Held that the cars were assessable where the warehouse was ; that they need not be specified ; that he should not be taxed thereon as a car loaning company (H. S. 1229) ; and that the fact that they were assessed in both wards did not vitiate the assessment in the right ward. In Pioneer Fuel Co. v. Malloy, 131 Mich. 466, it is held that where a commodity is shipped into this state and stored, and orders filled therefrom, it is lia- ble to an assessment where stored. In Grand Rapids, etc., L. Co. v. Inland Twp., 136 Mich. 121, it is held that lumber piled in a mill yard at the place of its man- ufacture, is taxable to the owner in the township where piled. Same in Hines Lumber Co. v. Wells Twp., 142 Mich. 366, where the lumber was nine-tenths paid for and in the control of plaintiff. 12. C. L. '97, 3737. 13. C. L. '97, 3837. Ill LOCUS, DESCRIPTION, VALUATION resident of the state, such personal property shall be assessed where situated, to the executor or person in possession 14 . 76. Trustees and Agents. Sub. 6 provides that all personal property under the con- trol of a trustee or agent, whether a corporation or a natural person, may be assessed to such trustee or agent in the township where he resides, except as otherwise provided. Personal property mortgaged or pledged shall be deemed the property of the person in possession and may be assessed to him 16 . Sub. 7 provides that all personal property situate upon any lands of the United States or of this state shall be assessed to the owner or occupant thereof where the lands are situated. For the purposes of taxation, all buildings thereon shall be deemed personal property ; and such build- 14. In Herrick v. Big Rapids, 53 Mich. 554, it is held that a leg- atee cannot be assessed for a leg- acy while it is still in the hands of an executor. In Barstow v. Big Rapids, 56 Mich. 35, it is held that a guardian cannot be as- sessed upon an undistributed leg- acy to his minor ward. In Avery v. DeWitt, 72 Mich. 25, and in Hardy v. Inhabitants, etc., 6 Al- len 281, it is held that prior to notice of distribution, logs and lumber belonging to the estate of a deceased person are assessable to the executor in the township in which the deceased last dwelt. In Orion Twp. v. Axford, 112 Mich. 179, it is held that an exec- utor is personally liable for the tax where he makes a distribution after the assessment is made. 15. C. L, '97, 53837. In Curtis v. Richland Twp., 56 Mich. 478, it is held that securities belonging to a resident of this state but in the custody of an agent -living in a different town, may be assessed in part to the owner and in part to the agent ; but if the same se- curities are assessed to both, the assessment to the owner takes precedence. In Baars v. Grand Rapids, 129 Mich. 572, and in Howell Village v. Gordon, 127 Mich. 553, it is held that choses in action like notes, etc., of a non- resident, in the hands of an agent in this state, are not subject to taxation here. In Detroit v. Lewis, 109 Mich. 155, it is held that personal property, the legal title of which is in a trustee, should be assessed to such trus- tee. Same holding in : Latrobe v. Mayor, 19 Mel. 13; Dorr v. Bos- ton, 6 Gray 131 ; Davis v. Macey, 124 Mass. 19.1; Smith v. Beyers, 43 Ga. 191 : Price v. Hunter, 34 Fed. 355; People v. Assessors, 40 N. Y. 154. 77 THE LAW OF TAXATION ings need not be removed before sale for taxes 16 . Choses in action, like notes, owned by an non-resident, but in the hands of an agent here for collection, are not assessable here 17 . Likewise, stock of a foreign corporation in the hands of an agent here, is not subject to taxation; but prop- erty represented by land contract and mortgages, being an interest in real estate, is subject to an inheritance tax here 18 . 77. Personal Property of Non- Residents. Forest products are assessable where situate unless in transit from one place to another. The fact that they may be piled along a railroad, or in a lake, awaiting the con- venience of the owner to ship, does not render them in transit 19 . 16. In re Stanton Est., 142 Mich. 491; Baars v. Grand Rap- ids, 129 Mich. 572; Howell Vil- lage v. Gordon, 127 Mich. 533. 17. In re Stanton Est., 142 Mich. 491. 18. Robertson v. Land Com- missioner, 44 Mich. 274. This as- sessment should be separated from the other personal property. A deed of part paid state land, on payment of balance due, may be demanded from the state ; but the state may impose as a condi- tion in the sale that the taxes shall be paid before a deed issues. In Auditor General v. Sage Land Co., 129 Mich. 182, it is held that state tax lands should be as- sessed as real estate, though the tax may be collected when as- sessed as personality, the title still being in the state. 19. In Maurer v. Cliff, 94 Mich. 194, it is held that logs piled along the railroad track awaiting shipment or the conve- nience of the owner, are not in transit, and are assessable where piled. In Plainfield Twp. v. Sage, 107 Mich. 19, it is held that logs stored in a lake awaiting ship- ment by rail, are not in transit, and are there assessable. Same principle in Hill v. Graham, V- Mich. 659 (under Act of 1885), and Mitchell v. Lake Twp., 126 Mich. 22. The addition to this subdivision (15 of 3838), in 1889, of the words, "or on the banks or shores of any lake, pond or stream of this . state, when the same is not at the place where it is to be manufactured," causes a different holding in Elk Rapids Iron Co. v. Helena Twp., 117 Mich. 211, where logs banked on the bank of a stream are held in transit. In Fletcher v. Alcona Twp., 72 Mich. 18, it is held that growing timber, reserved in a sale of real estate, is not personal property or forest products, and should be assessed to the owner of the land. In Hovey v. Mc- Cracken, 81 Mich. 314, a contract provided that the title to lurmVr should remain in the vendor until it was shipped free from insur- ance charges or taxes. Held, ihat 113 LOCUS, DESCRIPTION, VALUATION 77 Statutory Provision. C. L. 1897, 3837, Sub. 8, Tax Law, 14, provides: "Personal property of non-residents of the State, and all forest products owned by residents or non-residents, or estates of deceased persons, shall be assessed in the township or ward where the same may be, to the person having control of the premises, store, mill, dock, yard, piling ground, place of storage, or warehouse where such property is situated in such township, on the second Monday of April of the year when the assess- ment is made, except that where such property is in transit to some place within the State it shall be assessed in such place, except that where such property is in transit to some place without the State it shall be assessed at the place in this nearest to the last boom or sorting gap of the stream in or bordering on this State in which said property will naturally be last floated during the transit thereof, and in case the transit of any such property is to be other than through any watercourse in or bordering on this State, then such assessment shall be made at the point where such prop- erty will naturally leave the State in the ordinary course of its transit ; * * *" This section further provides that such property may be assessed to the owner, or to the person or corporation in control thereof, and in the lumber was properly assessed Saginaw, banked logs in different to the vendor before it was townships for shipment to a shipped. In Pardee v. Freesoil place in the defendant township. Twp., 74 Mich. 81, it is held that where they were to be transferred logs temporarily frozen up in a to a vendee, a non-resident of tl;is lake, awaiting a thaw to float state. Held that the logs W.T-.' them away, were in transit and properly assessable in the defend- not there assessable. (Taxes of ant township. In Boyce v. Cutter. 1887.) In Coming v. Masonville 70 Mich. 539, it is held that logs Twp., 74 Mich. 177, the plaintiff, in transit cannot be assessed at a having his mill and business n destination they never reach 78 THE LAW OF TAXATION 114 case of logs, to the person or company running or storing them. It also provides a lien to any person, not the owner, who may pay such tax. C. L. 1897, 3838, Tax Law, 15, provides: "All forest products in transit on the second Monday in April of each year and thereafter found in the waters or streams of this State, when the same is not at the place where it is to be manufactured, shall be held to have a place of destination at the sorting grounds of the rafting and driving agents or booming company nearest the mouth of the stream, unless the contrary shall be made to appear by the owner or party having the same in charge: * *" This section also provides that lumber and forest products left in any yard or railroad reserve shall not be deemed in transit, but shall be assessed where situated, to the owner or corporation have control of such place of piling or storage. When in transit, however, they are assessable to the owner at their place of destination 20 . 78. To Whom Property May be Assessed. The foregoing sections designate to whom property may be assessed. C. L. 3922 provides that no tax shall be held invalid 20. In Brooks v. Arenac Fwp , awaiting water to float them away, 71 Mich. 231, it is held that logs are held to be in storage and as- in transit are assessable to the sessable where they were. In owner, at their place of destina- Spanish River Lumber Co., v. tion in this state and that the Bay City, 113 Mich., 181, it is owner need not appear before the held that on assessment of lum- board of review of each township ber on a dock to the person in they pass through on the diy the control of the dock, without stat- assessment is made or accrues. In ing whether he is owner or -itjent, Hill v. Graham, 72 Mich. 659, logs is valid, irrespective of the own- piled on the bank of a creek ership of the dock. 115 LOCUS, DESCRIPTION, VALUATION 78 on account of the property having been assessed without the name of the owner, or in the name of any person other than the owner. An assessment of real estate owned by tenants in common as partnership property of the same parties, is not void 21 . Real estate not in the hands of an executor, etc., may be assessed to the heirs or devisees jointly, without naming them 23 . Property may be assessed in the firm name though one partner is dead 23 . The tax does not partake so much of the nature of a judg- ment as to defeat a levy because of a mistake in the name. Thus, a tax assessed as to a copartnership instead of to a corporation may be enforced against the corporation, it being composed of the same persons, being the successor to the partnership 24 . Upon the same principle, a tax assessed to a corporation or its manager, in the alternative, may be satis- fied by a levy on the corporate property 25 . A mistake in the name of a firm will not invalidate the assessment the under- lying principle being that a person whose property is liable to an assessment for taxes shall not be permitted to evade payment of his just proportion of the public burdens by errors or omissions that do not prejudice his rights 2 *. 21. Hubbard v. Winsor, 15 James H. Hill & Sons, a copart- Mich. 146. nership, was assessed to James 22. C. L. 53826. Dickinson v. H. and Arthur Hill & Co. In Reynolds, 48 Mich. 159. Sage v. Burlingame, 74 Mich. 120, 23. Blodgett v. Muskegon, 60 a copartnership is held liable for Mich. 580 ; Oliver v. Lynn, 130 taxes assessed upon lands belong- Mass. 143. ing to one of the firm, where the 24. Petrie Lumber Co. v. Col- firm had directed the assessment lins. 66 Mich. 64; Farnsworth Co. to be made as it was. In Bradley v. Rand, 65 Me. 19; Loud & Sons v. Bouchard, 85 Mich. 18, it is Lumber Co. vs. Hagar. 118 Mich. held that the assessment of per- 452. sonal property in the name of a 25. Mich. Dairy Co. v. McKin- person other than the real owner, lay, 70 Mich. 574. if it appear that such assessment 26. In Hill v. Graham, 72 was not made knowingly for the Mich. 659, property belonging to purpose of defrauding or impos- 79 THE LAW OF TAXATION lit) Choses in action and personal property like notes, etc., of a non-resident, in the hands of an agent within the state, are not subject to taxation 27 . 79. Non-Resident Owners of Real Estate. A provision that such owners shall be separately assessed is mandatory. The tax on resident owners of real estate may be collected by levy and distress, or suit; and the resi- dent owner is entitled to notice of this assessment before it is enforced. It would operate as a fraud upon him if a parcel of real estate in his possession, could be omitted from the list of property assessed to him, and taxed on another part of the roll, where, if the law is obeyed, he knows it cannot be placed and where he would not be likely to look for it 2 *. ing an unjust tax upon such per- son, will not defeat a levy for the tax against the real owner. In Graetwick Lumber Co. v. Oscoda Village, 97 Mich. 221, 228, it is held that a corporation, like an individual, may be Known by dif- ferent names, and that parol evi- dence of its identity is admissible ; that an assessment of a corpora- tion describing it by its initials only, is sufficient. Same in Loud & Sons Lumber Co. v. Hagar, 118 Mich. 452. In Fletcher v. Post, 104 Mich. 424, it is held that an assessment of firm property to one of a firm is valid as against the firm, under the law of 1889. It is intimated that under the law of 1891, such misnomer would be fatal as to a tax on personal prop- erty. In Iron Star Co. v. Wehse, 117 Mich. 487, it was held that planitiff could not complain of an assessment which described it as "The Great Western Iron Co." by which name it was sometimes known. In Menominee v. Lum- ber Co., 119 Mich. 201, an assess- ment to S. K. Martin, instead of S. K. Martin Lumber Co., is sus- tained. In Mann v. Carson, 120 Mich. 631, where the real owner was assessed for his lands which were occupied by another, it was held that he could not complain because the occupant was not also assessed thereon. In Auditor General v. Keewenaw Ass'n, 107 Mich. 405, a tax on land is held good though the name of the own- er or occupant was not in the roll. 27. Baars v. Grand Rapids, 129 Mich. 572; Howell Village v. Gordon, 127 Mich. 553. 28. Rayner v. Lee, 20 Mich. 384, 389; Young v. Martin, 2 Yeates 312 ; Rising v. Granger, 1 Mass. 48; Baiker v. Heseltine, 27 Me. 354 ; Hanscom v. Hinman, 30 Mich. 419; Seymour v. Pet- ers, 67 Mich. 415 ; Hill v. Warrell, 87 Mich. 135; Fowler v. Camp- bell ,100 Mich. 398, under tax law li; LOCUS, DESCRIPTION, VALUATION 80,81 80. Unoccupied Premises. The word "occupied" does not signify the same as "seated" or "surveyed" in the tax laws of some other states. Unoccupied premises are vacant premises, mean- ing that no one is in the actual possession exercising any acts of control over the premises, or any part of them". 81. Description of Real Property. The description of real estate, either on the rolls or in the tax deed, must be sufficiently accurate to identify the prop- erty. In a conveyance between individuals, where the pur- pose is to explain and give operation to the intention of the parties, certainty may be imparted to the deed by parol testimony that the particular land was designated, and that the grantee was put into possession. But this rule does not apply to tax titles, with which the owner has nothing to do, and there being no intention to which opera- tion can be given. The assessment is the foundation of all subsequent proceedings, and, in order to impart certainty and validity to them, the description of the land in the assessment must be sufficiently definite and certain as not to resort to extrinsic proof of the character above men- tioned 80 . The requirements as to the description in tax proceed- ings are not only aimed at securing an identification of the property that will be certain, but are designed to afford notice to the owner that proceedings affecting his property of 1889; Pieotter v. Whaley, 80 29. Hill v. Warrell, 87 Mich. Mich. 257, construing H. S. m. 1007; Tweed v. Metcalf, 4 Mich. 30. See 85391, 453, as to decree ssfi ; In Burroughs v. Goff, 64 Jackson v. Sloman, 117 Mich. Mich. 465. It is held that land 126, 129; Jones v. Pelham, ?4 should he assessed as resident Ala. 20s ; People v. Mahoney. 55 when it is occupied by a person Cal. 286. under a contract of purchase. 82 THE LAW OF TAXATION 118 are pending. The description, therefore, should be such as to not mislead him, if it departs from the strict accuracy as stated by statutory rules 31 . Where the original assess- ment is too indefinite and uncertain, an order of the board to reassess it upon the proper description is without force where the first description was too indefinite to form the basis of a tax 32 . 82. Abbreviations. The statute provides that abbreviations heretofore in use shall be a sufficient description of real property 33 . Statutory Provision. 8 of Act 96 of Laws of 1844 C. L. 3848, Sub. 7, Tax Law, 25, provides: "It shall be sufficient to describe the real property assessed upon any roll and in all other proceedings under this act, in the manner heretofore in use by initials, letters, abbreviations, and figures." In determining the meaning of abbreviations, the entire roll may be taken into consideration, together with the uni- formity in the order in which the abbrevations appear. If the abbreviations are such as would be understood by the general public, they will be deemed sufficient 34 . The captions at the head of the columns are to be read in connection 31. Jackson v. Sioman, 117 E. y$. In Blakeley v. Bestor, 13 Mich. 126, 128; Auditor General 111. 713, a description was held v. Sparrow, 116 Mich. 574. good in which only two sides 32. Auditor General v. Smith, were described. See also, Hodg- 125 Mich. 576. don v. Burleigh, 4 Fed. R. 117; 33. Kneeland v. Kull, 116 State v. Mayor, 36 N. J. L. 288; Mich. 55. Paris v. Lewis, 85 111. 597; At- 34. Audtior General v. Spar- kins v. Hinman, 2 Gilman, 451; row, 116 Mich. 574, 587, holding Harrington v. Fish, 10 Mich. 415. that N. E. could be tafcen for N. 119 LOCUS, DESCRIPTION, VALUATION 83 with the abbreviations; and E. and W., etc., will be under- stood as referring to East, West, etc. 88 . 83. Section Lands. Sub. 1 of C. L. '97, 3848, provides that if the land assessed be an entire section, it may be described by the number of the section, township and range. The word "township" in the statute signifies surveyed township 38 . Sub. 2 provides for describing lands by designating the subdivision of a section, with the township and range. The number of the section may be omitted if there is not another section in the same political division containing a section of the same number. The same rule would follow as to township and range 87 . Sub. 3 provides that land may be described as a distinct part of a subdivision of a section, or by designation of the lot, or other lands by which it is bounded. When fractional sections are divided into lots, by the 35. Sibley v. Smith, 2 Mich. 487, 503. 36. Manistee Lumber Co. v. Springfield Twp., 92 Mich. 277. 37. In Bird v. Perkins, 33 Mich. 28, the property was de- scribed as E. y ? of s. E. y*, omitting the section number; but as that was the only E. % of S. E. y$ within the Village, it was held a good description. In Dumphey v. Auditor General, 123 Mich. 354, land described as be- ing in Dundee Twp., in Sec. 8, T. 6, R. 6, held a good description, there being two sections number- ed 8 in Dundee Twp. In Taylor v. Youngs, 48 Mich. ?69. the de- scription of land as being in one political township when it was actually in another, is held fat-il. though it was not assessed in the township where located. In Au- ditor General v. Keewenaw Ass'n, 107 Mich. 405, it is held that the name of the township on the back of the collector's roll is sufficient; it need not appear on each page. In Husted v. Wil- loughby, 117 Mich. 56, a descrip- tion as "all that part of S. W. y\ of N. W. Frac. y\ lying north of County Drain known as Sid- well and Relaid Mills Drain," not giving the section number, is held sufficient in a declaration, there being but one such descrip- tion north of the drain. In Petit v. Flint, etc.. Ry., 114 Mich. 362, an assessment which describes land as "West fractional half of N. W. y* of Sees. 15. 16 and 17," is held fatallv defective. 84 THE LAW OF TAXATION 120 government, for sale, they should not be described as regu- lar parts of a section 38 . 84. Plats. Reference to plats, whether recorded or not, is good 39 . 38. In Amberg v. Rogers, 9 Mich. 332 (1861), the S. W. Frac. J4 of a section contained 100 acres, and was patented in one description. An assessment of the E. Y-i of this was held bad, but a sale of the E. Y 2 was sus- tained, it being presumed that a change had been made after as- sessment under C. L. 1857, 354, that the entire tract had been as- sessed as one parcel, the rolls not being in evidence, and that part had been paid. In other words, the description was suffi- cient for sale but not for an as- sessment. In King v. Potter, 18 Mich. 134, what the government has designated as Lot 1, was de- scribed in the assessment and deeds either as N. E. J4, or N. R. Fr. 54 or N. E. 5< of N. W. - Fr. Yi, the last description includ- ing Lot 1. Held, as insufficient description. A description as N. E. Fractional Y* of N. W. J4 is held unknown to the law. In Gillman v. Riopelle, 18 Mich. 145, a description on the roll as "that part of private claim 61 lying east of the north branch of the River Ecorse Township 3 S. of R. 11, E." is held sufficient, though the acre- age was more than stated in the roll. In Harts v. Mackinac Isl., 131 Mich. 680,, property described as "W. */3 part of P. C. No. 331, five cottages and barn, less lot deeded to John Brown," is held a sufficient description. In Vet- terly v. McNeal, 129 Mich. 507, where all there was of the W. Yi, of a section was a S. W. Fr. J4, its description as the West Fractional half of the section is held harmless error. 39. In Lefevre v. Detroit, 2 Mich. 587, an assessment upon "St. Peter and St. Pauls Cathe- dral," is held void since it neither describes the lot nor names the occupant. In Johnstone v. Scott, 11 Mich. 232, 240, it is held, under C. L. 1846, p. 105, that lots cannot be assessed by their number with reference to an unrecorded plat, though such a reference would be good as between individuals. In Burrows v. Gibson, 42 Mich. 121, a levy upon "lot 7 of the sub- division of lots 12, 13, and 14 of the Labrose and Baker farms in Detroit," instead of "lot 7 of John Gibsons Subdivision of lots 13, 13, 14, and 18 of the Labrose and Baker farms," is held fatally defective. In Jackson v. Sloman, 117 Mich. 126, an assessment of "part of the F. & P. M. Sub- division," instead of "F. & P. M. Park Subdivision of part" of a designated fractional section of land, is held void. In Wilkin v. Keith, 121 Mich. 66. a description as "Hoyts Plat of the City of Saginaw," instead of "Hoyts Plat of East Saginaw," is held suffi- cient, the cities having been con- solidated. In Mann v. Carson, 120 Mich. 631, a description in the published tax list as "entire Block 15" of a certain plat, is held sufficient. In Audtor General v. LOCUS, DESCRIPTION, VALUATION i 88 Statutory Provision. C. L. '97, 3848, Sub. 4, provides: "In the case of land platted or laid out as a town, city or village, the same may be described by reference to such plat and by the number of the lots and blocks thereof, whether such plat be recorded or not." Where platted lots are contiguous and owned as one par- cel, they may be assessed together as one tract 40 . Although the number of acres contained in a plat is erroneously stated, yet if the plat is correctly named, the description will be sufficient 4 , 1 - Where land is correctly described, and then a statement erroneously adds that such land is in a certain plat, the latter statement will be deemed surplusage 42 . 85. Contiguous Parcels. Contiguous parcels, owned by one person may be assessed together, unless demand be made in writing to have each subdivision assessed separately. Where land is so assessed for taxes and sold under a decree of the court, the decree becomes a judicial determination of the validity of the assessment 48 . Sessions, 100 Mich. 343. the of the assessment in such manner, court does not decide whether a 41. Jackson v. Mason, 145 reference to an unrecorded plat Mich. 338 ; in Auditor General v. is sufficient. In Mayot v. Auditor Sparrow, 116 Mich. 574. General, 140 Mich. 593, property 42. Hayward v. O'Connor, 145 on an unrecorded plat, a copy of Mich. 52. Petitioner was owner which could not be found, was of N. E. V* of N. W. *4 of Sec. purchased on lots "809." and was 31. T. 25 W R. 13 W., in the J ater assessed as 'lot 10." This was Village of Thompsonville, Burgie held not to confer jurisdiction County. In the petition, the upon the Court to order a sale ; words "plat of Johnson City" was and the sale was cancelled and the added after the section numher. cloud removed. 43. Kneeland v. Hull. 118 Mich. 40. Kneeland v. Hull, 116 55; Haydcn v. Foster, 13 Pick. Mich. 56. and in any event, the 492, 497. decree of sale heals the legality 86, 87 THE LAW OF TAXATION 122 Statutory Provision. C L. '97, 3847, Tax Law, 24, among other things provides: "All continuous subdivisions of any sec- tion that are of equal value and are owned and occu- pied by one person, firm or corporation, and all un- improved lots in any block that are of equal value and are contiguous and owned and occupied by one per- son, firm or corporation shall be assessed as one parcel, unless demand in writing is made by the owner or occupant to have each subdivision of the section or each lot assessed separately; but failure to assess such contiguous parcels as entireties as herein provided shall not invalidate the assessment as made." C. L., '97, 3848, Sub. 4, provides: "When two or more parcels of land adjoin and are used and occupied together, they may be assessed by one valuation." 86. Estoppel. Where the misdescription of land on the roll is caused by following the copy of the description furnished by the owner, he cannot set up the misdescription as ground for equitable relief 44 . 87. Personal Property. This class of property does not have to be described or enumerated, excepting in the cases especially required by statute, such as primary school lands and improvements or buildings upon state or government property. When it is enumerated, it is surplusage 46 . 44. Wisner v. Hubbard, 15 45. Comstock v. Grand Rapids, Mich. 146. 54 Mich. 641. 123 LOCUS, DESCRIPTION, VALUATION 88,89 88. Tax Statements. The statute provides for obtaining a sworn statement from each tax payer, and forbids the using of the state- ment for any other purposes than making the assessment 46 . This statute does not require the supervisor to visit each tax payer personally, as this might be impracticable; but he should at least mail such statements to the tax payers and use all reasonable means to carry out the purpose of the statute. He will be liable to indictment if he does not do so. The statute is mandatory, not directory 47 . This statement is not admissible in evidence in a suit to recover taxes paid under protest, against the maker. These state- ments are not public records 48 . The object of the statute requiring taxpayers to furnish lists is to bring to light property which might otherwise escape the search of the assessor. They are intended to furnish him information upon which he and the board of review may make a fair assessment of property. If the statements contain valua- tions of the items of property mentioned in them, such estimates are not conclusive upon the assessor. If they were, the owner, and not the assessor, would practically assess the property 49 . ^ 89. Valuation. The constitution provides that all assessments hereafter 46. See 48, supra. C. L., '97, form the conscience of the offic- 3841-3846, first enacted in Act ^rs. In Gratfick, etc.. Lumber Co. v. 200 of Public Acts of 1891, and Oscoda Village, 97 Mich. 221 (Tax amended in 1899. of 1890), it was held that failure 47. Turner v. Grcuit Judge, to get tax statements, under the 95 Mich. 1. law of 1889, did not avoid the 4R. Tn Brooks v. Arenac Twp., tax. 71 Mich. 231, it was held that the 49. Bowman v. Circuit Judge, supervisor could ask for a sworn 129 Mich. 608, 610. statement if he desired ; yet, under Constitution of 1850, Art. XIV. the law then in force, such act 12, Beecher's Constitution of would only to have been to in- 1908, Art. X, 7. 89 THE LAW OF TAXATION 124: authorized, shall be on property at its cash value. This provision does not apply to licenses, or taxes upon busi- ness, which are in the nature of specific taxes 50 . The statute C. L. 3847, requires all property to be assessed at its true cash value ; and this is defined to be the usual selling price where the property is, being the price which could be obtained therefor at private sale and not at forced or auction sale. (C. L. 3850.) A failure to list property for taxation in accordance with the law does not constitute a wrong to an individual unless he can show that his individual assessments are thereby made a larger proportion of the aggregate taxable prop- erty than they should have been. The wrong is a public wrong and should be redressed by public prosecution 51 . The listing of the property is clerical work, but the ascer- taining and determining its value is judicial, requiring the judgment of the supervisor under his oath of office, and cannot be dispensed with in making a valid assessment roll 52 . It was part of the agreement by which Michigan was admitted to the Union that non-resident proprietors should not be assessed higher than residents 53 . It is not an absolute necessity, however, that the super- visor view each piece of land, when it is an unbroken wilderness. He may not have the time. He would there- fore be justified in assuming that it was substantially alike, 50. Kitsor v. Mayor, etc., 26 Mich. 346. In Peninsular Iron Co. Mich. 325; Walcott v. People, 17 v. Crystal Falls Twp., 60 Mich. Mich. 68 ; In Avery v. E. Saginaw, 510, it is held proper for a clerk 44 Mich. 587, it is held that this to make out the roll if the super- provision is designed to protect as visor dictates the valuations, well against over-valuation as 52. Woodman v. Auditor Gen- vrdcr valuation. eral, 52 Mich. 28. 51. Moss v. Cummings, 44 53. Ordinance of 1836. Mich. 359; Paldi v. Paldi, 84 LOCUS, DESCRIPTION, VALUATION 90,91 just as government and state lands are offered for sale on a similar basis 64 . 90. Excessive Valuation. If a supervisor fraudulently and purposely assess par- ticular property at more than its value, equity will restrain the excessive tax. The owner must offer to pay his just share, or what his taxes would have amounted to upon a just valuation 65 . But an excessive valuation alone will not be deemed proof of a corrupt or fraudulent assessment 86 . 91. Rebate and Refunding of Tax. It is not in the power of a municipality, after the valua- tion has been fixed and the' taxes extended, to make any rebate to a tax payer for property upon the roll, which may have been destroyed by fire since its listing 57 . Neither can the municipality, in the absence of fraud, be compelled to refund an illegal tax voluntarily paid. It would be a dangerous precedent to establish, that after paying taxes for a period of time, the wisdom or necessity of levying such tax could be inquired into by the tax payers after it was discovered by the 'judgment of some court, after the levy of the tax and payment, that such tax was illegal and injudicious 58 . When an illegal tax is raised and paid into 54. Sawyer-Goodman Co. v. Griffin, 140 Mich. 427, where a Crystal Falls Twp., 56 Mich. 597. mistake was made in apportioning- Peninsular Iron Co. v. Crystal the tax. Falls Twp., 60 Mich. 510. 57. Case v. Detroit, 129 Mich. 55. Merrill v. Humphrey. 24 289. In Curry v. Tawas Twp., 81 Mich. 170. In Gratwick, etc., Mich. 355, it is held that a liquor I. umber Co. v. Oscoda, 97 Mich. tax could not be recovered back. 221. 231. it is held a wilful or although the party did not engage fraudulent over-valuation will be in the business at all. reviewed. 58. Manistee Lumber Co. v. 56. Auditor General v. Stiles, Springfield Twp., 92 Mich. 277. 83 Mich. 460; Auditor General v. 281. 92 THE LAW OF TAXATION 1:> 1) the treasury for any particular purpose, it should be applied to that purpose to the extent of paying debts incurred upon the strength of the tax 59 . 92. Valuation. Low, or Omission of, It is the settled law of this state as well as elsewhere, that when the assessing officers have purposely, in violation of law, exempted property from taxation, so that the bur- den of taxation rests unequally, those who are wronged by this action are entitled to remedy. The same rule applies if property is undervalued, whether by agreement or in dis- regard of official duty. If the extent to which the tax- payer has been injured can be ascertained that sum will be deducted from his taxes 60 . Those who execute the tax laws may not deliberately and knowingly disregard them and assess the whole tax upon a part only of those who are liable to pay it. That would be placing the citizen at the mercy of those officers, who by b^ing appointed to execute the laws, would thereby be placed beyond legal control 81 . 59. French v. South Arm taxes in the other townships in Twp., 122 Mich. 593. that country. Auditor General v. 60. In Auditor General v. Pioneer Iron Co., 123 Mch. 521. Jenkinson, 90 Mich. 523, certain 61. Walsh v. King, 74 Mich, vessel property in Port Huron 350. In this case an injunction was assessed at 10% of its value. was sustained, the money having Merrill v. Humphrey, 24 Mich. been paid into court, upon the 170 ; Walsh v. King, 74 Mich. 350 ; theory that the illegal tax created In Solomon v. Oscoda Twp. 77 a cloud upon title. Weeks v. Mich. 365, $300,000.00 worth of Milwaukee, 10 Wis. 264 ; Traverse property was not assessed at all, Beach Ass'n v. Elmwood Twp., by agreement. Held, that where 142 Mich. 178; Bank v. Kimball, it was impossible to show the 103 U. S. 735; Lingle v. Elmwood damages suffered, the tax payer Twp., 142 Mich. 194. In Attorney could recover his entire tax. In General v. Sanilac Supervisors, Auditor General v. Prescott, 94 42 Mich. 72, it is held that Mich. 191, it is held that the petitions from a township to re- omission of $800,000.00 of valu- duce valuations should not be ation from the roll of a township noticed. invalidates the state and county T27 LOCUS, DESCRIPTION, VALUATION A change of valuations as fixed by the board, if not inten- tionally or fradulently made, will not, however, vitiate the roll 6 *. For fraud of the supervisor, committed lx?fore the meeting of the board of review, the board is the consti- tuted tribunal to redress the wrong. The taxpayer cannot ignore the tribunal established for the very purpose of correcting such evils, and bring his action at la\v fl '. Where the supervisor, after notice, assesses property to a person, which he does not own, he may recover the tax so paid without having appeared before the board of review 04 . The supervisor cannot place property upon the roll after the board of review have adjourned because that would give the owner no opportunity of being heard on a review of his assessments 68 . The mere fact that assessable prop- erty is omitted does not vitiate the taxes, since it will be presumed either that the law exempted the property, or that it was worthless 66 . Where, by mistake, the omitted property is upon the, wrong roll, as a city tax upon a state and county roll, such tax is invalid. Not only are the war- rants different, but a city tax becomes a lien in November, and a state or county tax becomes a lien in December 67 . 93. Valuation. Dollar Marks. Where an inspection of the roll shows that the figures 62. See "Certifying taxes to Mich. 56, where the owner of township." White v. Millbrook standing timber was also assessed Twp., 60 Mich. 532. for the soil. 63. Traverse Beach Ass'n v. 65. Maurer v. Cliff. 94 Mich. Elmwood Twp., 142 Mich. 78. 194. Caledonia Twp. v. Rose, 94 Mich. 66. Perkins v. Nugent, 45 216; Hinds v. Belvedere Twp., Mich. 156. 107 Mich. 664. 67. Folkerts v. Powers, 42 64. Ward v. Echo Twp., 145 Mich. 2"3. 93 THE LAW OF TAXATION 128 representing valuation were intended for dollars a roll will not be held invalid for the lack of a dollar mark or sign 98 . 68. Bird v. Perkins, 33 Mich. 28- Gaboon v. Coe, 52 N. H. 518, 524; State v. Eureka Co., 8 Nev. 15. In First National Bank v. St. Joseph, 46 Mich. 526, the ' figures were separated by a red line, to which line no attention was paid. Held, that all of the figures represented dollars. In Auditor General v. Sparrow, 116 Mich. 574, the dollar mark was absent in the equalization and apportionment of taxes by the board of supervisors. CHAPTER VI. BOARDS OF REVIEW, SUPERVISORS, AND STATE TAX COMMISSION 94. Functions of 95. Notice of Action of 96. Review of Action of 97. Review of State Tax Commission. 98. Time of Meeting. 99. Powers of Board of Review. 100. Certificate on Roll. 5101. Signatures on Roll and Certificate. 5102. Collateral Attack of Certificate. 8103. Board of Supervisors. 8104. Certifying Taxes to Board of Supervisors. 105. Re-assessment of Taxes. 106. Equalization of Counties. 107. Record of Equalization. 108. Effect of Equalization on Townships. 109. Certificate of Equalization. 110. State Taxes. 111. State Tax Commission. 112. State Tax Commission. Power of 113. Apointment of State Tax Commission. CROSS-REFERENCES. Agricultural Society Tax, 134. Board of Review on Drains, 284. Board of Supervisors and Drain Tax, 286. Equity Juris- diction over Drain Tax, 430. Equity Jurisdiction over Special Assessment, 431. Highway tax and board of supervisors, 126, Mandamus, 417. Mistake in Drain Tax, 283. Review of Special Assessment, 355. Supervisor and Drain Tax, 287. 94. Functions. The plain purpose of this body is to review the action of the supervisor, and correct errors he may have made. It cannot be presumed that the assessor has personal knowledge of the private business of the person assessed unless they choose to give it. The statute provides for giving every THE LAW OF TAXATION 130 person an opportunity to furnish a list of his property, and also provides the further opportunity to object to the correct- ness of the assessment. If a tax payer does not see fit to have his assessment corrected when it is in his power to do so, it will be assumed that his assessment is correct. He cannot thereafter complain of excessive valuation, or of lack of deductions to which he might have been entitled 1 , except for fraud 2 . A tax payer, however, has a right to presume 1. C. L., '97, $3851-56; First National Bank v. St. Joseph, 4 Mich. 531. In Comstpck v. Grand Rapids, 54 Mich. 641, 666, plaintiff claimed he was over-assessed by the super- visor, but did not appeal to the board. The court says: "If the assessment had been made of the goods, wares, etc., in one gross sum, without any specifi- cation of particulars, there could have been no question whatever that the assessment would have been valid, and that the nlaintiff, in order to obtain relief from any portion thereof, must have appealed to the board of review as provided by statute. * * * The plaintiff knew, or was bound to know, that the law required that he should be taxed for personal property in the First Ward of the city, and he, therefore, had constructive notice of the as- sessement actually made, and should have appealed in respect to any part of it of which he could justly complain." In Hamilton v. Ames, 74 Mich. 298, it is held that an assignee of a lessee chargeable with taxes, cannot complain of an excessive valuation where the lessee appeared before the board prior to his assignment of the lease and expressed himself as satisfied. 2. In Peninsular Iron Co. v. Crystal Falls Twp., 60 Mich. 510, 517, the supervisor did not have time to examine all of the lands, in two surveyed town- ships, though he had been through them before. Follow- ing Sawyer-Goodman Co. v. Crystal Falls Twp., 56 Mich. 599. it is held unnecessary that the supervisor personally in- spect every piece of land, and that if there was an inequality it could have been remedied by the board, on appeal. The Court says: "If there was any inequality in the assessment against plaintiff's lands, by fail- ing to present its case before th->. board of review, the proper tribunal for adjusting such mat- ters, it has lost the right to assail the assessment in the courts, unless it can be shown that the supervisor or the board of review acted fraudu- lently, or some misconduct on the part of the supervisor amounting to fraud in law. In Meade v. Haines, 81 Mich. 261, 265, all taxpayers of Thom- aston Township were entitled to cross a certain toll bridge free. Plaintiff purchased on contract two acres of land in that township and demanded to be passed free over that bridge. The supervisor refused to issue a certificate to him to cross the bridge free, and assess the land 131 BOARDS OF REVIEW, SUPERVISORS, ETC. 94 that his property will be assessed in its proper locality, and is not bound to examine rolls where he has no property, nor to examine any roll for a tax which the assessing officer would not have jurisdiction to levy 3 . Although the board is to the ver>4ee in the contract. In an action against the super- visor to recover toll paid by plaintiff, it was held that as the supervisor acted in good faith, plaintiff was barred from com- plaining because he had not ap- pealed to the board of review. The Court says: "This board is authorized to add names to the roll, to correct all errors in th* names of persons, and to do whatever may be necessary to make the roll comply with the provisions of the law. The plaintiff did not appear before this board, nor in any manner avail himself of its provisions, to correct the alleged erroneous assessment. This is a com- plete bar to his recovery here even if he could otherwise maintain his suit." In Brown v. Grand Rapids, 83 Mich. 101, 109, complainant claimed that a special assessment district omitted lands benefited by the proposed improvement. He did not appear either before the council or board to object. The Court says: "He did not ap- pear, and does not pretend that he made any effort to have the assessment corrected before the council. The determination of these two bodies, the commis- sioners who made the assess- ment roll, and the common council of the city of Grand Rapids, cannot now be inquired into, unless it appears that they acted in bad faith. * * * Where provision is made by law for a review of assessment proceedings, and a body ap- pointed with the power to set the assessment aside or correct the error complained of, and the party wholly fails to ap- pear before such body, or take any steps to have such correc- tion made, he is not in a posi- tion to appeal to the courts for redress in the absence of fraud or bad faith." In Mich. Sav- ings Bank vs. Detroit, 107 Mich. 246, it is held, where the 1'ank had not requested the board of review to deduct cer- tain real estate mortgages from its capital stock, that an action would not lie against the mu- nicipality to recover back the excessive tax. The same principle is enun- ciated in Detroit River Savings Bank v. Detroit, 114 Mich. 81. In Hinds v. Belvidere, 107 Mich. 664, it is held that the taxpayer cannot complain of anything that the board of re- view could have remedied had he made application. In Grat- wick Lumber Co. v. Oscoda, 97 Mich. 221, it is held that a tax- payer who appears before the board cannot object because tax statements were not fur- nished him. See also Williams v. Saginaw, 51 Mich. 120; Ja- cobs v. Detroit. 145 Mich. 395. The taxpayer is not precluded from appealing to the courts when there has been fraud in over-valuing the property. See 589. :?. McCoy v. Anderson, 47 Mich. 502, holding that replevin of the property seized for the tax will He where plaintiff was THE LAW OF TAXATION 132 required to keep a record of its proceedings under C. L. 3856, yet its failure to do so will not avoid a tax where no injury resulted therefrom 4 . It is the function of the board of review to hear objections to the roll as prepared by the supervisor; and in general, if a tax payer does not appear and make his objections known, and give the board an oppor- tunity to remedy the illegalities or wrongs, he cannot there- after bring his suit 5 . Where the interests of several owners are incorrectly described, they cannot object unless they appeared before the board and asked its correction 8 . 95. Notice of Action. The general tax law furnishes very full means to the assessing officer for getting at the correct basis of a true assessed in a township where he did not live, and had no property therein. In Brooks v. Arenac Twp., 71 Mich. 231, 233, logs of a non- resident, while in transit, were assessed in a township where the owner had no other prop- erty. In holding that, in such a case, it was unnecessary to appear before the board of de- fendant township, the Court says: "This section does not contemplate that the owner, who may be a non-resident of the state as well as of the county or township, must ap- pear in person in all parts of the state where his logs may be in transit, at the day. when their liability is supposed to ac- crue in each township. This would be manifestly impracti- cable." The rule that where a taxpayer's assessment is upon personal property not subject to taxation at the place where the property is taxed, the courts may review it though the owner has not appeared before the board of review, is well set- tled: Nester v. Baraga Twp., 133 Mich. 640; Detroit v. Circuit Judge, 127 Mich. 604; Wood- mere Cemetery Ass'n v. Spring- wells Twp., 130 Mich. 466; De- troit v. Mackinaw Trans. Co., 140 Mich. 174, holding that it is unnecessary to appear before a board of review to contest a tax levied under an unconstitu- tional law, followed by Ports- mouth Twp. v. Cranage Steam- ship Co., 148 Mich. 230, and Rice v. Muskegon, 150 Mich. 679. See also. Bemis v. Boston, 14 Allen 366; Fairbanks v. Kit- tridge, 24 Vt. 9; Charlestown v. Com'rs, 109 Mass. 270; Jud- kins v. Reed, 48 Me. 386. 4. Auditor General v. Buck- eye Iron Co., 132 Mich. 554. 5. In addition to the forego- ing cases, see Traverse Beach Ass'n v. Elmwood Twp., 142 Mich. 78 and 297; Latham v. Assessors, 91 Mich. 506. 6. Detroit v. Jacobs, 145 Mich. 395. !:;:l BOARDS OF KKVIKW. SLI'KKVISORS, K . 95 assessment. It requires him to make an investigation and hear evidence if it be offered, and the final determinati ui cannot be made until such opportunity is given. X<> one has any occasion to make a showing until an eing excessive if the officers have not acted from an improper motive; but if it is purposely made too high, either through prejudice or reck- less disregard of duty, in opposition to what must necessarily be the judgment of all competent persons, or through the adoption of a rule which is designed to operate unequally upon a class, and to violate the constitutional rule of uni- formity, the case is a plain one for the equitable remedy by injunction. So in any case in which a tax is rendered un- equal or unfair by fraudulent or reckless conduct of officers, or in which the party is deprived by like practices of im- portant rights which the law intends to secure to him ; such, for instance, as the right of an appeal from an assessment, or to be heard by the board of review, before his assessment should be raised 12 . 97. Review by State Tax Commission. This commission, under the statute, have the power to review and change the valuations of either a local or state board, as circumstances may require. Such a power is not unconstitutional. The local assessing officer is bound by their decision, and cannot refuse to accept it because in his opinion such action is illegal 13 . Under some charter pro- visions, the tax commission cannot change the apportionment 12. Pioneer Iron Co. v. Ne- Tax Commissioners. This gaunee. 116 Mich. 430, 43T, board has general supervision quoting from Judge Cooley. In of the supervisors and assessing Perkins v. Nugent, 45 Mich. officers of the state, with plen- 156, and in Drennan v. Beier- ary powers to review assess- lein. 48 Mich. 272, it is held ments and assessment rolls, that the fraud complained of 13. State Tax Com'rs v. must be clearly established. Quinn, 125 M.ich. 128; State Tax Act 154 of the Public Acts of Com'rs v. Assessors, 124 Mich. 1899 f145-154 of Tax Law), 489. creates the Board of State 97 THE LAW OF TAXATION 138 between the wards of a city, but it may change the individual assessments, and may add to the rolls property and persons omitted. It may review the action of the local board of review after their adjournment, notice of which is to be given by publication. The commission, however, have no power to adjourn without notice; and action taken at such adjourned day without notice to the parties in interest will be void 14 . Where the board gives notice of a review at a specified date, and makes adjournments of which no record is made, the only proof of which was parol evidence, the action of the board in raising assessments is void for un- certainty 15 . A published notice of the meeting of the com- mission, for five days, including date of publication and date of meeting, is void 16 . Statutory Provision. Act No. 5 of Public Acts of 1909, provides : "After the various assessment rolls required to be made under this act shall have been passed upon by the several boards of review, and prior to the meeting of the board of supervisors each year, the said several assess- ment rolls in the state shall be subject to inspection by said board of tax commissioners, or by any mem- ber thereof; and in case it shall appear, or be made to appear, by written complaint of any taxpayer to said board that property subject to taxation has been omitted from said roll, or individual assessments have not been made in compliance with law, the said board may issue an order, directing the assessor whose assess- ment or failure to assess is complained of, to appear with his assessment roll at a time and place to be 14. Bialy v. Bay City, 139 397. Mich. 495. 16. Port Huron v. Wright, 15. Delray Land Co. Y. 150 Mich. 279. Springwells T\vp., 149 Mich. 139 BOARDS OF REVIEW, SUPERVISORS, ETC. i !* stated in said order, said time to be not less than seven days from the date of the issuance of said order, and the place to be at the office of the board of super- visors at the county seat, or at such other place in in said county in which said roll was made, as said board shall deem most convenient for the hearing herein provided." The act requires notice of the meet- ing to be given. The board or any member of the board, is authorized to review the roll, make true and lawful assessments of the property complained of, and add omitted property to the assessment roll. 98. Time of Meeting. The statute fixes the time when the board shall meet ; and this is notice to the tax payers. This is mandatory, because the tax payer must be allowed, at some time before the roll is completed, the opportunity of seeing what assessments have been made against his property, and the privilege of showing that the proposed assessment is illegal and unjust. This right of review is also true of the action of the super- visor 17 . If a party is injured by the placing of property on the roll after the time fixed for review, the act renders the tax in- valid ; but if the tax payer makes no effort to examine his tax, and does not claim he is injured by such action, the mere irregularity itself will not vitiate the tax 18 . 17. Woodman v. Auditor day, the review was good. General. 52 Mich. 28; Auditor 18. Albany, etc., Mining Co. General v. Chandler, 108 Mich. v. Auditor General, 37 Mich. 569. In Wright v. Auditor 391. In Caledonia Twp. v. General. 118 Mich. 556, it is Rose. 94 Mich. 216, the board held that where a quorum was adjourned before the time fixed not orcsent on the first day, by statute, and a taxpayer was and in fact no officer, yet if the thereby deprived of a hearing. was in session the next H*ld that his tax was void. 99, 100 THE LAW OF TAXATION 140 99. Powers. A tax payer has the right to make a showing by affidavit, and the board cannot refuse to receive the proofs thus tendered them. The board has the power to pass upon these proofs and to declare them insufficient if good reason exists for such finding; but they have no right to reject the proofs without examining them, nor to impose as a condition of such an examination that the affiant appear personally before the board and submit to an oral examination 19 . 100. Certificate on Roll. The certificate on the roll must show that the statute has been complied with. A certificate that property had been assessed at its "true value," instead of its "true cash value," is fatal to the tax 20 . Statutory Provisions. C. L. '97, 3847 as amended by Act 262 of the Public Acts of 1899, provides : "The supervisor shall estimate, according to best information and judgment, the true cash value of every parcel of real property and set the same down opposite each parcel. He shall also 19. McMorran v. Wright, 74 that under the Bay City charter Mich. 356. In Thompson v. De- (1872), the board could not troit, 114 Mich. 502, it is held change valuations except upon that the council, as a board of the application of a taxpayer review, cannot confirm an as- concerned. In Auditor General sessment roll unless the same is v. Sparrow, 116 Mich. 574, it is certified to them by the asses- held that the board cannot add sors. In Ball v. Copper Co., to. or change, the roll on its 118 Mich. 7, it is held that own motion after the time fixed where the board makes no by the statute, changes in valuations, they 20. Fay v. Wood, 65 Mich, need not write in the valuations 391; Hogelskamp v. Weeks, 37 in columns prepared for that Mich. 422; Wattles v. Lapeer, 40 purpose. In Griswold v. Bay Mich. 624. City, 24 Mich. 262. it is held 141 BOARDS OK KHV1KW, SUPERVISORS, ETC. 100 estimate the true cash value of all the personal property of each person, and set the same down opposite the name of such person. In determining the property to be assessed and in estimating such value, he shall not be bound to ( follow the statements of any person, but shall exercise his best judgment." C. L. '97, 3850, provides : "The words 'cash value.' whenever used in this act, shall Le held to mean the usual selling price at the place where the property to which the term is applied shall be at the time of assess- ment, being the price which could be obtained therefor at private sale, and not at forced or auction sale. In determining the value the assessor shall also consider the advantages and disadvantages of location, quality of soil, quantity and value of standing timber, water power and privileges, mines, minerals, quarries or other valuable deposits known to be available therein and their value." When the statute required the supervisor to certify "that the roll contains a true statement of the aggregate valuation" etc., a statement "that he had set down the real estate accord- ing to his best information," was held not fatal 21 . Under the same statute, the certificate stating that the property was assessed at its true cash value, but omitted the words "and nqt at the price it would sell for at forced or auction sale," the assessment was held void 22 . But although the statute may require the supervisor to certify his roll to the board of 21. C. L. 1871, 8991; McCal- v. Millar, 64 Mich. 129; Sinclair him v. Bethany Twp., 42 Mich. v. Larncd, 51 Mich. 335; Gil- 457. christ v. Dean, 55 Mich. 244; 22. C. L. 1871, 991; Daniels Silsbee v. Stockle, 44 Mich. 561. v. Watertown Twp.. 61 Mich. In Dickenson v. Reynolds, 48 514; Daniels v. Watertown Mich. 158, the omission of the Twp.. 55 Mich. 244; Westbrook word "auction" is held fatal. 101 THE LAW OF TAXATION review, yet if he is a member of the board and presents the roll, no certificate is necessary 23 . It should appear that the supervisor used his own judgment in fixing the valuations 24 . The addition of the words, "as is usual among assessors," renders a certificate void 25 . The words, "fixed or auction sale," instead of "forced or auction sale," are fatally defective 26 . But the words "forced sale" instead of "forced or auction sale," are harmless 27 . This certificate is not a part of the collectors roll and need not appear thereon 28 . This certificate may be shown by the roll of the supervisor or assessor 29 . A charter provision requiring wild and un- improved lands to be assessed at their true cash value, con- sidering their location and not according to their prospective or supposed value as city property is invalid 30 . 101. Signatures on Roll and Certificate. The date of the certificate is not important 31 . Unless otherwise provided, a majority of the board of review must sign the certificate 32 . A roll not signed by the assessors is 23. Darmstetter v. Moloney, Mich. 318, it is held that a cer- 45 Mich. 621. tificate on the collectors' roll is 24. Crooke v. Whiteford, 47 not evidence of such a ccrtifi- Mich. 283; 7, Acts 67, Laws of cate on the supervisor's roll. 1845. 29. Fells v. Barbour, 58 25. Kurd v. Raymond, 50 Mich. 49. Mich. 369; Clark v. Crane, 5 30. Saltonstall v. Cheboygan Mich. 151. Board of Review, 132 Mich. 196. 26. Paldi v. Paldi, 84 Mich. 31. Auditor General v. Ayer, 346. 122 Mich. 136; Yelverton v. 27. Blue Mining Co. v. Ne- Steele, 36 Mich. 62. gaunee, 105 Mich. 317. 32. In Burt v. Auditor Gen- 28. Tweed v. Metcalf, 4 eral. 39 Mich. 126, it is held that Mich. 579; Hecock v. Van in the absence of a showing of Dusan, 80 Mich. 359; Boycc v. special injury, an unsigned cer- Sebring, 66 Mich. 210, 216; tificate, under the charter of Clark v. Axford, 5 Mich. 182, Marquette, would not avoid a 187; Bird v. Perkins, 33 Mich. tax in equity. 8. In Redding v. Lamb, 81 143 BOARDS OF REVIEW, SUPERVISORS, KTC. ^ H)-> void and is not cured by their signing the certificate'" ; but this was not true under the earlier law 34 , nor does it seem to be required where the assessing officer is a member of the board of review, as the reason for the rule fails 35 . A certifi- cate signed by a majority of the board is valid 3 " ; but when the certificate is missing, and leaves of roll are missing, there is no presumption that the certificate was made or signed 37 , nor will a sufficient certificate be presumed to have been in existence when an insufficient one was found 38 . Under the charter of Detroit, failure of the board of assessors to sign the roll before its transmision to the council, renders the levy void 39 . 102. Collateral Attack of Certificate. The policy of the statutes, and of the courts, is not to permit a collateral attack on any tax certificate. The statute contemplates that there shall be written evidence of record, in the form of an official certificate, that the estimate of taxable property has been properly made ; and when such evidence has been made and preserved in the manner pro- vided by law, it is the legal medium of proof in collateral proceedings, and is entitled to prevail therein to the exclusion of oral evidence in contradiction 40 . 33. Sibley v. Smith, 2 Mich. cate. is immaterial. 487 (1853); Detroit v. Thomp- 37. Newkirk v. Fisher, 72 son, 114 Mich. 502 (1897). Mich. 115. 34. Lacey v. Davis, 4 Mich. 38. Case v. Dean, 16 Mich. 140 (under law of 1842). 12, 16. 35. Darmstetter v. Moloney, 39. Lowe v. Detroit, 138 45 Mich. 621 (1881). Mich. 544, following Thompson 36. Mills v Richland Twp., v. Detroit, 114 Mich. 502. 72 Mich. 100. In Auditor Gen- 40. Blanchard v. Powers, 49 eral v. Sparrow, 116 Mich. 574, Mich. 614, 624; Gamble v. East it is held, in the proceedings to Saginaw. 43 Mich. 367. In Wall foreclose the tax in equity, that v. Trumbull, 16 Mich. t30. the fact that a majority of the where the supervisor was sued board did not sign the certifi- in trespass for issuing his war- 103, 104 THE LAW OF TAXATION 144: 103. Board of Supervisors. Where the record of the board does not show who, or how many, were present, it will be presumed that a quorum was present 41 . It is competent for the board, at an adjourned meeting, in November, to do every thing required by law to have been done at their October session 42 . A board of supervisors has no authority to borrow money except where the power is given by statute. Where a board exceeds its powers and borrows money, the county will not be liable for money had and received, since all persons dealing with coun- ties are bound to ascertain the limits of their authority as fixed by the statute or organic law, and are chargeable with knowledge of such limits 48 . 104. Certifying Taxes to Board of Supervisors. The board of supervisors cannot certify the taxes to be raised in any township without the certificate of the town- ship clerk; but if the supervisor levies a tax not appearing in the certificate to the supervisors, it must be shown by the person obj ecting that it was not authorized by the proper authorities 44 . A legal township tax, authorized to be spread upon the roll by law, will not be illegal because the same had not been certified to the board of supervisors, and by them directed to be -levied. The action of the supervisors is not required to give local officers power in the premises, but rant for illegal taxes, held, that 42. Hubbard v. Winsor, 15 a fair certificate from the clerk Mich. 146. of the board of supervisors pro- 43. McCurdy v. Shiawassec tected him if he was not ac- Co., 15 L. N. 873, construing tually aware of the illegality of C. L. 2484. the tax certificate. Tompkins 44. Auditor General v. Mc- v. Johnson, 75 Mich. 181. Arthur, 87 Mich. 457, 462; Boyce 41. Lacey v. Davis, 4 Mich. v. Auditor General, 90 Mich. 140. 314. BOARDS OF KKV1KW. ST 1'HKVISORS, ETC. rather to insure the duty of being surely and regularly performed 45 . $105. Re-assessment of Taxes. The statute requires lands, the tax for which has been rejected for any reason except that the land was not subject to taxation as the tax had been paid, to be re-assessed upon the same land. The board, however, cannot simply order these taxes re-assessed without specifying what lands they arc to be assessed upon, and for what purpose. In the case of a drain tax, the record must also show for what drainage district the tax must be applied to. A resolution omitting these details, and in effect leaving it to the discretion of the local supervisor to designate the parcel to be charged, con- fers no jurisdiction to re-assess the tax 46 . Statutory Provision. C. L. '97, 3919, provides: "The auditor general shall prepare and forward to the county treasurer a statement of such rejected taxes, and a description of the lands upon which the same were assessed ; and such county treasurer shall lay the same before the board of supervisors at their next session thereafter, and if such taxes shall have been rejected or charged back by the auditor general, except for the reason that such land was not subject to taxation at the time of assessment for such taxes, or that the taxes thereon had been paid, or that there had been a double assessment thereof, the board of supervisors shall cause the same to be re- 45. Robbins v. Barren, 33 v. Sebring, 66 Mich. 210, 218. Mich. 124, 126; Alvord v. Col- 46. Auditor General v. Tut- lins, 20 Pick. 418; Upton v. tie, 146 Mich. 106. Kennedy, 36 Mich. 215; Boyce (10) 106 THE LAW OF TAXATION 146 assessed upon the same land, and collected with the taxes of the then current year, and in the same manner. If such taxes cannot be properly re-assessed upon the same lands, the board of supervisors shall cause the same to be re-assessed upon the taxable property of the proper township." See 174, post, as to rejection of taxes by county treasurer. If the re-assessment was ordered as per a certain schedule which had been reported to the board, such a designation would be valid 47 . 106. Equalization of Counties. The board of supervisors have full and complete juris- diction, not subject to review, over the whole subject of equalization of real estate taxation, and may adopt their own means of reaching the result. When they have fixed the amount at which the real estate in a township is to be valued for the year, it is conclusive and cannot be in- validated by showing that they had adopted an erroneous footing or aggregate, of the valuations returned by the supervisor 48 . Statutory Provision. C. L. '97, 3857, as amended by Act No. 127 vof Laws of 1909, provides: "The board of super- visors in each county shall, at its session in October in each year, examine the assessment rolls of the several 47. Auditor General v. Flem- had been made, the contestant ing, 142 Mich. 12; Gage v. Sagi- must show that he had been in- naw, 128 Mich. 682. jured thereby. In Grand Rap- 48. In Case v. Dean, 16 Mich. ids v. Wellman, 85 Mich. 234, 12, 25, the board had adopted the action of the board is held an erroneous footing of the conclusive as between the rolls. Held, that if a mistake wards of a city. 147 BOARDS OF REVIEW, SUPERVISORS, ETC. 106 townships, \v,ards, or cities, and ascertain whether th* relative valuation of the real property in the respective townships, wards, or cities, has been equally and uni- formly estimated. If, on such examination, it shall deem such valuation to be relatively unequal, it shall equalize the same by adding to or deducting from the valuation of the taxable property in any township, ward, or city, or townships, wards, or cities, such an amount as in its judgment will produce relatively an equal and uniform valuation of the real property in the county, and the amount added to or deducted from the valuation in any township ward or city, shall be entered upon the records. It shall also cause to be entered upon its records the aggregate valuation of the tax- able real and personal property of each township, ward, or city in its county as determined by it. The board shall also make such alterations in the descrip- tion of any lands upon such rolls as may be necessary to render such descriptions conformable to the require- ments of this act. After such rolls shall have been equalized, each shall be certified to by the chairman and clerk of the board and be delivered to the super- visors of the proper township, ward, or city, who shall file and keep the same in his office." It also provides that any supervisor may appeal from such equaliza- tion to the committee on appeal, which shall consist of three ex-supervisors of adjoining counties. The equalization will be sufficient if it appear that a specified sum has been added to or taken from any roll, and this sum may be inferred if the records show the gross sum at which the township is equalized 49 . The duty of the board 49. Tweed v. Metcalf, 4 burn, 104 Mich. 494; Auditor Mich. 579, 589; Hoffman v. Lyn- General v. Ayer, 109 Mich. 694; 107 THE LAW OF TAXATION 148 in equalizing taxation is political, and .their power ex- clusive 60 . An equalization in July, instead of October, is valid 51 . 107. Equalization. Record of, The proceedings of the board must show they took such action as the statute requires. The action of the board can only be shown by its records 52 , and parol proof will not be received to vary or explain them 53 . The record must be signed by the chairman of the board 54 . When the chairman of the board signs the certificates of equalization attached to the various tax rolls, the fact that the clerk of the board neglected to do so is harmless 55 . The court intimates that Auditor General v. Sparrow, 116 Mich. 574; Auditor General v. Ayer, 122 Mich. 136; Boyce v. Auditor General, 90 Mich. 314, 326. In Silsbee v. Stockle, 44 Mich. 3C1, the equalization was a statement in tabular form, and was held good, though made in June instead of Octo- ber. In Auditor General y. Longyear, 110 Mich. 223, it is held that the adding 1 or deduct- ing may be shown by additions to the personal property, the total aggregate being the same. In Boyce v. Sebring, 66 Mich. 210, it is held that the adoption of the report of the committee made such report the action of ^e board. 50. Attorney General v. San- ac Board, 42 Mich. 72. 51. Auditor General v. Nor- /ington, 12 L. N. 200; Boyce v. Sebring. 66 Mich.. 210; Silsbee v. Stockie, 44 Mich. 361; Audi- tor General v. Griffin, 140 Mich. 427. 52. Yelverton v. Steele, 36 Mich. 62; Paldi v. Paldi, 84 Mich. 346, 356. 53. Williams v. Mears, 61 Mich. 86; McDonald v. Esca- naba, 62 Mich. 555. In Auditor General v. Roberts, 83 Mich. 471, it did not appear what was the valuation of a township or ward as equalized, nor the valu- ation as made bv the supervisor. Held, void. In Paldi v. Paldi, 84 Mich. 346, 356, it is held that the record must be clear and unequivocal. In Chamberlain v. St. Ignace, 92 Mich. 332, it is held that it is only necessary that the records show the total aggregate of taxable property as determined by the board; and where such aggregate ap- pears, it will be presumed that no additions or deductions were necessary, to this extent over- ruling 63 Mich. 471, supra. Hoff- man v. Lynburn, 104 Mich. 494. 54. Weston v. Monroe, 84 Mich. 341. 55. Auditor General v. Nor- rington. 140 Mich. 427; Audi- tor General v. Griffin, 140 Mich. 427. 1 I !l BOARDS OF REVIEW, SUPERVISORS, ETC. a record which only shows that the committee on taxation filed a report, showing the value of the different townships, and marked as adopted, will not be considered a proper or valid record of equalization 56 . 108. Equalization. Affect on Townships. A failure of the board to equalize townships at all, or a nugatory attempt so to do, does not affect the local township or city taxes 57 . A ward is a unit in respect to equalization; and a deduction of a lump sum from several combined wards renders the state and county taxes void 58 . When Bay City, and West Bay City were equalized as units, instead of the various wards therein, and the state tax commission made additions to certain wards of West Bay City after such equalization, those affected thereby had their excess in tax remitted 59 . Statutory Provisions. Act No. 127 of Public Acts of 1909, provides : "Sec- tion 37. The board of supervisors at its annual session in October in each year shall ascertain and determine the amount of money to be raised for county purposes, and shall apportion such amount, and also the amount of the state tax and indebtedness of the county to the state among the several townships in the county in proportion to the valuation of the taxable property therein, real and personal, as determined by it, or as determined by the committee on appeal, upon appeal in the manner provided by law, for that year, which 56. Briggs v. Guleck, 143 58. Messenger v. Peter, 129 Mich. 457. Mich. 93. 57. Chamberlain v. St. Ig- 59. Auditor General v. Nor- nace, 92 Mich. 232; Auditor rington. 140 Mich. 427; Auditor General V. Gurney, 109 Mich. General v. Griffin, 140 Mich. 72. 427. 108 THE LAW OF TAXATION 150 determination and apportionment shall be entered at large on its records. It shall also examine all cer- tificates, statements, papers and records submitted to it, showing the moneys to be raised in the several townships for school, highway, drain, township and other purposes. It shall hear and duly consider all objections made to raising any such moneys by any taxpayer to be affected thereby. If it shall appear to the board that any certificate, statement, paper or record is not properly certified, or that the same is in anywise defective, or that any proceeding to authorize the raising of any such moneys has not been had or is ,in anywise imperfect, and such certificate, statement, paper, record or proceeding can then be corrected, supplied or had, such board may authorize and re- quire such defects or omissions or proceedings to be corrected, supplied or had. 'It may refer any or all such certificates, statements, papers, records and pro- ceedings to the prosecuting attorney, whose duty it shall be to examine the same, and without delay re- port in writing the opinion to the board. It shall direct that such of the several amounts of money pro- posed to be raised for township, school, highway, drain and all other purposes as shall be authorized by law, be spread upon the assessment roll of the proper townships, wards and cities. Such action and direction shall be entered in full upon the records of the proceedings of the board, and shall be deemed final as to the levy and assessment of all such taxes, except when there is a change made in the equaliza- tion of any county by the committee on appeal upon appeal, in the manner provided by law." 151 BOARDS OF REVIEW, SUPERVISORS, ETC. 109, 110 109. Certificate of Equalization. The certificate of equalization to be attached to the roll is evidence to the tax payer that the board has performed its duty; and if it is absent or unsigned, the state and county taxes will be void 60 . The records, also, of the board, in making such equalization, must be signed by the chairman to confer authority to levy the state and county taxes 91 . Equity, however, will not enjoin the collection of a tax because this certificate was not signed 62 . 110. State Taxes. The auditor general is bound to take notice of the statute changing county boundaries and creating new counties, and is bound to know what land falls in each county. The reports of assessments made to the state board of equal- ization should furnish to the auditor general, who has direct access to them, the means of calculating the precise share which should be laid upon each county 83 . Statutory Provision. C. L. '97, 3858, provides that the auditor general shall apportion the state tax. "The state tax he shall apportion among the several counties in proportion to the valuation of the taxable property there as deter mined by the last preceeding state board of equalization, and shall before the October session of the board of su- 60. H. S. 1029; Maxwell 90 Mich. 314, it is held that the v. Paine, 53 Mich. 30; West- signatures may be supplied by brook v. Miller, 64 Mich. 129. the officers during their term 61. Weston v. Monroe, 84 of office. Mich. 341; Pearsall v. Eaton 62. Burt v. Auditor General, Co. Supervisors, 71 Mich. 438, 39 Mich. 126. Auditor General v. Hill, 97 Mich. 63. Ontonagon Co. v. Goge- 80. In Boyce v. Auditor General, bic Co., 74 Mich. 721. 110 THE LAW OF TAXATION pervisors in each year make out and transmit to the clerk of each county a statement of the amount of such taxes so apportioned to such county." The section also provides that any indebtedness of the county to the state shall likewise be apportioned. Where a county is divided, the auditor general should anticipate such division, and properly distribute the tax, though the act may not be in effect when he makes his distribution 64 . It is the duty of the board of supervisors, when the amount of the state tax is seasonably certified to them, to apportion it among the several townships and wards ; and they will be compelled by mandamus to do so 65 . The effect of improper equalization has heretofore been pointed out. Under C. L. 1871, 1090, all unpaid taxes belonged to the state; and where the taxes had been levied the county had performed its full duty. It was the duty of the county to see that the state charges were regularly assessed, and it was liable to the state for all taxes which were rejected and sent back. If the state bid in the returned lands and sold them for less than the accumulated charges, the difference could not be charged up to the county by any retroactive statute 66 . The auditor general does not open accounts with any township or return township monies collected. He re- 64. Auditor General v. Me- that where land had been re- nominee Co., 89 Mich. 552, 578. turned delinquent for 5 years it 65. Auditor General v. Jack- should be sold for what 't son Board, 24 Mich. 237. In would bring, and any loss Hoffman v. Lynburn, 104 Mich. charged up to the county. This 494. it is held that the amount act was held prospective in its of state taxes certified to the operation in Clark v. Hall, 19 board need not be spread upon Mich. 356, and Smith v. Audi- the records of the board. tor General, 20 Mich. 398. Audi- 66. Auditor General v. Mon- tor General v. Saginaw Board roe Board, 36 Mich. 76. This f>2 Mich. 579, 591, mandamus [Act (24, No. 169, Laws of is held the proper remedy to 1869, repealed in 1875), provided obtain an accounting. 1 .".:; BOARDS OF REVIEW, SUPERVISORS, ETC, > > Ml. 11- tains all taxes collected while the county is indebted to the state 67 . 111. State Tax Commission. The purpose of the act 68 creating this board is consti- tutional. In the absence of constitutional limitation, the state may, by its legislature, prescribe the limits of taxation and the agencies to be employed. No rights of local self government is infringed. While the office of supervisor is a constitutional office, and cannot be abrogated, his powers are subject to legislative modification. The right of appeal from the action of a supervisor has always been recognized in some form ; and the right to review his action, or that of any inferior board is not depriving him of the functions of his office. This act applies' to cities generally, as well as to townships 69 . 112. State Tax Commission Powers 00 *. The board has full power to review assessment rolls, but cannot do so after the tax roll has been made up and placed in the collectors hands 70 . The board also has the right to review the assessment of individuals ; it establishes the valu- ation, and its action is final. It is not advisory to the assessor. It may review the action of the board of super- visors, and of the state board of equalization 71 . 67. Ottawa Board v. Audi- 491, 494. tor General, 69 Mich. 1. 69a. See 97 supra. See Accounting between 70. State Tax Commission v. State and County. Cady, 124 Mich. 683. 68. Act No. 154 of Public 71. State Tax Commission y. Acts of 1899. Quinn, 125 Mich. 128; Detroit 69. Tax Commission v. United Ry. v. State Tax Corn- Board of Assessors, 124 Mich. missioners, 136 Mich. 96. 113 THE LAW OF TAXATION 154 113. State Tax Commission. Appointment of, The office of city asessor is incompatible with a member- ship on this board. The acceptance of the office of state tax commissfoner is, ipso facto, a vacation of the former office. This office, not being a constitutional one, is noi governed by the constitution as to the duration of the appointments. It is competent for the legislature to fix the term thereof, and to provide that an appointment in a vacancy should not extend longer than the next meeting of the legislature. In the case of an appointment which must be with the advice and consent of the senate, and which the senate had concurred in, the senate may, at the same session, before any action on its vote had been taken, reconsider its vote and refuse to consent to the appointment, since in con- curring it exercises a legislative function revocable under the rules governing that body 72 . 72. Attorney General v. Oakman, 126 Mich. 717. CHAPTER VII. TOWNSHIP TAXES. 5 114. Township Clerk's Certificate. 5115. Action of Electors. 1K>. Meeting of Electors Records. 5117. Levy. Township Board. 118. Levy. Specifying Amounts. 8119. Notice of Board Meetings. 5120. Lighting Plants and Water Works. 121. General Highway Tax. 8122. Highway Tax for Future Use. 8123. Highway Tax Estimates. 8124. Return of Highway Labor Tax. 8125. Highway Tax Miscellaneous. 8126. Highway Tax Action of Supervisors. 8127. School Tax. Purpose of 8128. Taxes for Higher Education. 8129. School Tax. Authority to Raise, 8l3(). S-.hool Taxes, Miscellaneous. 5i:;i. Surveyor's Tax. 8132. Dog Tax. 8133. Fence Viewer's Tax. $134. Agricultural Society Tax. 135. Bounty Tax. CROSS-REFERENCES. Amount of Special Assessment Paid by City, 8334. Deter- mination of Special Assessment, 88321, 332. Limitation of Special Assessment, 8330. Vote for Special Assessment. 8319. 114. Township Clerk's Certificate. It is the duty of the township clerk to certify to the supervisor a statement of all taxes to be raised in the town- ship, and also the aggregate thereof; and the supervisor is bound by this certificate 1 . The supervisor cannot alone 1. C. L. '97. 83859, Tax Law, meeting of the board of super- 836. Case v. Dean, 16 Mich. 12, visors. Smith v. Crittenden, 16 26. In Peninsular Iron Co. v. Mich. 152; Sage v. Stevens, 72 Crystal Falls Twp.. 60 Mich. 510, Mich. 638; Gamble v. Stevens, 78 it is held that the certificate may Mich. 302. be made any time before the 115 THE LAW OF TAXATION 156 fix the amount of the township tax 2 . The certificate need not aggregate the taxes, and it may contain a certified copy of the record of the vote of the electors, the original record not having been entered in the record book 3 . The clerk will be compelled by mandamus to issue the proper cer- tificate to levy a tax to satisfy a judgment against the township 4 . 115. Action of Electors. The electors have power to raise such sums, not exceed- ing the sum fixed by statute, as they may deem necessary. The particular use of the money for the contingent fund need not be specified 6 . The records of township meetings must be view with some indulgence for they are made up for the most part by persons without training in the law, and who make no attempt to do more than to express in simple and plain language the township transactions. And when a "resolve" is entered on such a record as having been adopted, it would be very unreasonable to hold it insufficient because it failed to state in terms that it was adopted on an affirmative vote of a majority of competent voters. When a tax is voted for a particular purpose, it is not necessary that the estimates upon which the sum voted is based, should be recorded 9 . Where the statute requires a certain vote, as two-thirds, for borrowing money, it is taken to mean two-thirds of those voting unless other- wise specified 7 . 2. Lacey v. Davis. 4 Mich. 140. to destroy Canada thistles in the 3. Boyce v. Auditor General, highway. 90 Mich. 314. 6. Lake Superior Ship Canal 4. Courtwright v. Township Co. v. Thompson Twp., 56 Mich. Clerk, 54 Mich. 182. 493. 5. Tweed v. Metcalf, 4 Mich. 7. Daniels v. Long, 111 Mich. 579, 592, holding that money vot- 562. ed as a highway tax could be used 157 TOWNSHIP TAXES 116. Meeting Electors. Records. There is not any law which authorizes a supervisor of a town to levy a tax for township purposes without the same has first been voted at a legal meeting of the qualified electors of the township; or by the township board, where the qualified electors had neglected or refused to vote such sums as were necessary to defray the ordinary expenses ol the township. In either case, sudi vote would be matter of record, and should be shown by the township records. Proceedings by which taxes are voted cannot be left in parol; and if the records does not disclose the fact that the proper authority voted to raise money to defray the ex- penses of the township, taxes levied for that purpose by the supervisor would be illegal; and no presumption arises, in the absence of such vote appearing upon the record, that it was had or taken 8 . The refusal or neglect of the elec- tors to vote a tax must appear of record. See 115. No notice, however, is required to be given, of the annual meet- ing of the electors, the time for which is fixed by statute. In cases of special meetings, the electors are to have notice of the purpose for which they are called 9 . The provision 8. Williams v. Mears, 61 Mich. 86. 89. In Moser v. White, 29 Mich. 59, 60, it is held that every essential proceeding in the course of a levy of a tax must appear in some written and permanent form in the records of the bodies authorized to act upon them. Such a thing as a parol levy of taxes is not legally possible under our laws. In Mich., etc., Iron Co. v. La Anse Twp., 63 Mich. 700, it is held that a highway tax can- not be levied upon the verbal re- port of the highway commission- er ; but it is held otherwise, under the law of 1885, in Turnbull v. Alpena Twp., 74 Mich. 621, 631. In Auditor General v. Longyear, 110 Mich. 223, where a record bearing date of the township meeting, showed that a tax was voted by some one, it will be pre- sumed to have been the action of the electors at a township meet- ing. In Tweed v. Metcalf, 4 Mirh. 579, where the roll showed one sum and a tabular statement of the board another, the roll was presumed to be correct. Mills v. Richland Twp.. 72 Mich. 100; Rogers v. White. fS Mich. 10. 9. Smith v. Crittenden, 16 Mich. 152. 156. 117 THE LAW OF TAXATION 158 of C. L. 3443, permitting municipalities to raise one-half of one per cent tax, upon the assessed valuations, for keep- ing highways in good repair, does not require that the records show a prior determination of this necessity, or that this tax be separated from the rest of the highway tax. The necessity will be presumed, upon the principle that the municipality, whether represented by its people or by its official board, has acted wisely and well upon all matters of policy and of discretion which have been sub- mitted to it, and that the conclusion was warranted by the facts and circumstances which were the basis of its action. The courts have no power to review their action so long as they have kept within the limits of their authority 10 . 117. Levy. Township Board. The authority of the township board to raise a town- ship tax depends upon the action of the electors in either refusing or neglecting to raise such tax; and these facts must appear of record to justify the township board in its action 11 . I Statutory Provisions. C. L., '97, 2269, provides: "The inhabitants of any township shall have the power, at any legal meet- ing, by a vote of the qualified electors thereof, to grant and vote sums of money, not exceeding such amounts as are or may be limited by law, as they shall deem 10. Diamond Match Co. v. 11. Lacey v. Davis, 4 Mich. Ontonagon, 140 Mich. 183, 186, 140. 157. In Mich., etc.. Land Co. where the village council haa v. La Anse Twp., 63 Mich. 700, it ordered a highway tax of V\ of is held that the board could not 1%, the limit of the regular tax levy a highway tax based upon being *A of 1%, without the the verbal report of the highway record giving any reason there- commissioner, for. l.V.i TOWNSHIP TAXI .S necessary for defraying all proper charges and ex- penses arising in such township; but they shall not vote or raise by tax, in any one year, for contingent or ordinary expenses of the township, to exceed the sum of one thousand dollars. * * *" C. L. '97, 2349, provides : "Whenever the quali- fied electors of -any township, at the annual township meeting, shall neglect or refuse to vote such sums of money as may be necessary to defray the ordinary township expenses, the township board of any such township is hereby authorized, at any regular meet- ing, to vote such sum or sums as may be necessary for that purpose, not exceeding in any one year the sum of one thousand dollars." It would seem, however, that the record of the meet- ing of the electors need not specifically state that they neglected or refused to vote money, if the record of the board ordering the tax raised shows affirmatively that the question of raising this money was actually submitted to the electors. The township board may then order such money raised at any regular meeting. The earlier cases seemed to indicate that a mere silence of the record as to the action of the electors was sufficient to authorize the board to act 12 , but such is not the holding of the later cases 18 . 12. Peninsular Iron Co. v. Crystal Falls Twp., 60 Mich. 510, 519. 13. Newaygo Mfg. Co. v. Eichtcnaw. 81 Mich. 416, 422; Gamble v. Stevens. 78 Mich. 302; Mills v. fcichland T\vp.. 72 Mich. 100. 106; F. & F. Lumber Co. v. Thompson, 139 Mich. 698. In Harding v. Bader, 75 Mich. 31 r>. where the electors voted a certain sum, it is held that the record must affirmatively show the neg- lect to vote more. In Tillotson v. Weher. 96 Mich. 145, 154. it is held that the township hoard can- pot raise money unless the record shows that the items were sub- mitted to the electors first. In this case, the electors did vote certain items. In Savidge v. Spring Lake. 112 Mich. 92. it is S 117 THE LAW OF TAXATION 160 The authority of the board is limited to raising money for the ordinary expenses of the township. It cannot in- clude less than the necessary expenses incurred in adminis- tering- the government of the township, under the statutes creating and relating thereto, in such manner as will best promote the convenience, peace, health, prosperity and hap- piness of the people residing therein. This would include payment of indebtedness, a contingent fund to meet such exigencies as cannot be forseen, a poor tax, but it would not include money to build a town hall or establish lost cor- ners 14 . It is not necessary, however, to show a neglect or refusal to vote money to pay debts or fixed charges 15 . In the case of a city acting through its council, the charters generally require that the vote of each member upon a proposition to raise money, be entered upon its records. A failure to observe this rule will render the local taxes, over which the council has any discretion as to raising, invalid. Such defective record cannot be amended by a subsequent council composed of less than a majority of the old mem- held that the village council, in ditor General v. Sparrow, 116 the absence of a vote of the elec- Mich. 574 ; but a highway tax tors, cannot put in a system of need not have been submitted, water works for fire protection. while a school tax must have In Weston Lumber Co. v. Munis- been. In Weston Lumber Co. v. ing. 123 Mich. 138, poor tax is Munising Twp., 123 Mich. 133, it held an ordinary expense. In is held sufficient to authorize the Sawyer-Goodman Co. v. Crystal tax that the record of the board Falls Twp., 56 Mich. 597, provid- ordering the same recites that the ing for a contingent fund is held attention of the electors was providing for an ordinary ex- called to the same, and that they pense. refused to vote a tax. The board. 14. Wisner v. Davenport, 5 however, cannot raise a debt pre- Mich. 501. In Auditor General viously provided for without v. Duluth, etc., R. Co., 116 Mich. showing that the debt was not 122, it is held that the electors paid. cannot be held to have neglected 15. Wisner v. Davenport. 5 or refused to vote a tax unless it Mich. 501; Newaygo County Mfg. was submitted to them. The fore- Co. v. Eichtenaw, 81 Mich. 416. going holding is affirmed in Au- |)\\ N SI 1 1 1- TAX MS bers 18 . The court will presume, when the charter requires it, that the council made an estimate of the general expendi- tures before ordering the levy of a city tax, notwitstanding such estimates do not appear upon its records 17 . Levy. Specifying and Limiting Accounts. The body which orders the raising of the taxes must specify the amounts for each fund. This designation lies at the foundation of the authority to impose the tax. The evident purpose of this requirement is to protect the in- dividual against excessive levies, as well as to enable credi- tors and citizens to see that the payment of the public debt and interest thereon is provided for 18 . It is a sufficient designation of the amount to order a certain percentage raised upon the taxable property 19 . Where the amount to pay a judgment has been ordered raised, but was com- mingled with other taxes on the role, the treasurer cannot refuse to pay the judgment 20 . The fact that a municipality has raised the limit of its taxation provided by statue does not bar an action against it for bonded indebtedness. Poverty is no more a defense against just debts in a munici- pal corporation than in any other corporation or individual. The validity of a contract made by a municipality corporation necessarily involves the right to raise by taxation the 16. Pontiac v. Ax ford. 49 Mich. 69. In Steckert v. East Saginaw. 2ii Mich. 104. it is held insufficient for the record to state that a resolution was adopted "on rail," the names not appearing. Where the charter did not, in ex- press terms, require the aye and nay vote, a recital that an ordi- nance was adopted by a majority vote," will he construed to mean a n :ifirity of the entire corp.- 1, 9 out of 10 being present ; Mc- Cormick v. Bay City. 21 Mich. 457, 4C3. 17. Auditor General v. Hutch- 113 Mich. 245. mson IS. 397. 19. 490. 20. v. Scriher. 149 Mich. 701. Fay v. Wood. 65 Mich. 391, Boyce v. Peterson. 84 Mich. Montnelier Savings Bank 118 THE LAW OF TAXATION amount which it has agreed to pay. The right of contract must be limited by the right to tax, if, in the given case, no tax can be lawfully levied to pay the debt, the contract is void for want of authority to levy it. If the contract is valid, the only method by which it can be paid is by taxation. Execution cannot issue against the municipality. The pro- ceeding by the writ of mandamus to pay compel the pay- ment of the judgment, or the bonds without a judgment, is in the nature of an execution and the only remedy open to the creditor. When, however, the limitation upon taxation is contained in the statute itself, which authorizes the issue of the bonds, such limitations must control 21 . So, also, will constitutional limitations as to the limit of taxa- tion, control 22 . The municipality cannot avoid its legal obligations by the reduction of its valuation, and the making of its run- ning expenses equal the limit of taxation. Even if the leg- islature passed an act designed to aid the municipality in avoiding its legal obligations, courts would not hesitate to declare it inoperative and void, as impairing the obliga- tion of contracts. The state itself may so far sympathize with a debtor municipality as to aid it in its obstructive methods to prevent collection ; and it may seek to do this by so limiting the municipal power to tax that it shall be impossible for it to pay its debts by taxes raised within the legal limit. Where such obstruction has been attempted, however, it has been judicially determined that the limita- tion of the power to tax under such circumstances was an impairment of the obligation of contracts, and there- 21. Hammond v. Place. 116 582; Shippey v. Mason, 90 Mich. Mich. 628 ; Citizens, etc., Co. v. 45, as to compelling levy of judg- Topeka, 20 Wall. 655 ; Watkins v. ment. Macon Co. Court, 68 Mo. 29; U. 22. Sherman City v. Smith. 12 S. v. Macon County. 99 U. S. Tex. Civ. App. 580. TOWNSHIP TAXES fore inoperative. The state, in conferring upon its munici- palities the power to contract debts and t< levy taxes for their satisfaction, impliedly contracts with those who be- come creditors in reliance upon the power, that such power shall not, while their demands remain unpaid, be so limited, impaired or hampered, as to preclude the municipality pro- viding for and satisfying such demands according to their terms. Any subsequent legislation which could deprive creditors of the resource of taxation will be treated as inop- erative and void, and a levy of taxes may be compelled under such circumstances 23 . 119. Notice of Board Meetings. No meeting of the township board can be legal which was not attended by all of the members, unless it appear that the meeting was duly called and the members notified. The mere attendance "of a quorum does not make a legal meeting; every member has a right to be present and par- ticipate in its action 24 . While there should be proper writ- ten evidence on file or of record showing that the requisite statutory preliminary requirements of a legal meeting had been complied with, and showing that such meeting had been held, and the proceedings thereof, courts should bear in mind that, either from a lack of experience or otherwise, it frequently happens that the persons whose duty it is to give notice of, and keep a record of, such meetings, fail to keep the files and records of their office in a clear and in- telligible manner, and that to require the utmost strict- ness in this respect would result in many cases in rendering void the proceedings of such quasi corporations. Their 23. Hammond v. Pine-, 110 ?. Braver Creek Twp. v. Mirh. 20. fi33, quoting Judge Hastings. S2 Mich. 528. Cooley. S 120 THE LAW OF TAXATION proceedings, therefore, should be liberally construed, and all the proper intendments made in favor of their regu- larity- 15 . The statute does not prescribe what notice, or how, notice shall be given. It makes no provision for the recording of papers filed in the office of the township clerk regarding business of this nature. Unless required by statute, proof of notice is not usually recorded, but is filed away, and when so filed in a public office, constitutes a part of the records of that office and may be resorted to to supply any omission in the record. The township clerk is clerk of the township board. His office is the depository of the town- ship papers and records. In the absence of proof to the contrary, the proofs of service of notice of the meetings will be presumed to be in the clerk's office 26 . 120. Lighting Plants and Water Works. The city and village charters generally provide for the purchase of water works, when sanctioned by a vote of the electors. The council have no authority to entail this lia- bility, under the guise of fire protection, without a vote of the people. Should the council attempt to do so, an in- junction will lie to restrain such expenditure at the instance of any citizen whose interest is sufficient to confer juris- 25. Taymouth Twp. v. Koch- neither of these cases intended to ler, 35 Mich. 22, 25 ; Boyce v. Au- limit the proof to the jourral of ditor General, 90 Mich. 314, 3$5. the board. In Newaygo County 26. Boyce v. Auditor General, Mfg. Co. v. Eichtenaw, 81 Mich. 90 Mich. 314, 324; Auditor Gen- 416, it was presumed that th? eral v. Sparrow, 116 Mich. 574, board was properly constituted; 595. In Harding v. Bader, 75 Lewick v. Glazier, 116 Mich. 495. Mich. 321, and in Auditor Gen- In Auditor General v. Hutchin- eral v. McArthur, 87 Mich. 457, son, 113 Mich. 245, it is held that 464, it is held that the records if the records show that all mem- must show proof of service of bers were present, there was no notice of the meeting brt, as ex- necessity for proofs of service of plained in 116 Mich. 574 supra, notice of the meeting. H:."t TOWNSHIP TAXES ? 1-1 diction 27 . The legislature has generally fixed the total amount which a city council can order raised by taxation; and in such cases, it is held that the municipality cannot incur a greater liability, though to be paid in subsequent years, than they would have had the power to raise in one year 28 . In cities of the fourth class, the charter is so con- strued as to permit the council to make a ten year contract with a water company for a water supply, provided the annual payments do not exceed the amount the city is authorized to raise each year 2 *. The employment of a workman by the month is an appropriation of money which requires a two-thirds vote of the council 30 . 121. General Highway Tax. As long as roads are used and treated as highways, with the consent or without any objection from the persons in- terested in the land over which the roads pass, the tax can be legally used for the purpose of improving and keep- ing them in repair. Highways can be acquired by user as well as proceedings under the statute. It would be a sin- gular rule to establish that no highway funds could be used to work, a road not legally laid out under the statute, when no land owner makes any complaint, or puts any obstacle in the way of the public passage over his prem- ises. It would prevent the very user which the law pro- 27. Savidge v. Spring Lake Co. v. Eichtenaw. 81 Mich 41 f>. Village. 112 Mich. 91; Farr v. 20. Monroe Water Co. v. Grard Ranids, 112 Mich. 99. The Heath, 115 Mich 277; see 11R. municipality has no power to levy supra. Ludington Water Supply special assessments for these pur- Co. v. Ludington. 119 Mich. 480. poses. See 418, post. holding that such a contract is 28. Putnam v. Grand Ranids. not the incurring of an indehted- 58 Mich. 416: Trump Mfg. Co. v. ness since the services are to b Buchanan Village, 116 Mich. 113: rendered in the future. Niles Water Co. v. Niles. 59 30. Bishop v. Lambert, 114 Mich 311; Newaygo County Mfg. Mich. 110. THE LAW OF TAXATION vides may be substituted, by sufficient time of such use, for the statutory proceedings to acquire title to a high- way 31 . It is immaterial that the highways upon which it is proposed to expend the tax are not yet laid out, or that it is proposed to expend the money raised upon the whole township, in a part of the township, if the authorities act in good faith in levying the tax 32 . The labor tax cannot be assessed upon incorporated villages; but the township may maintain its highways by the labor tax, and raise an additional money tax if the labor does not turn out or is insufficient. The money tax is to be assessed upon all the property in the township, including that within the limits of an incorporated village. It is competent for the legis- lature to provide that all of the taxable property of a village shall be assessed for repairs and improvements in the high- ways, though such highways are wholly outside of such village 38 . 122. Highway Tax. Future Use. As before pointed out, a highway tax is not invalid be- cause the contemplated highways are not opened up; but a highway labor tax, or its cash equivalent, will be void when assessed in road districts where there are no highways and none in contemplation. It is not lawful to raise taxes for the remote future where the roads and necessities are both contingent. It is not only important to avoid useless burdens, but the practice leads to carelessness in handling funds, and to complications when changes are made in dis- tricts and other territorial divisions. All reasonable pre- 31. Peninsular Iron Co. v. 33. Perrigo v. Stephenson Crystal Falls Twp., 60 Mich. 510, Twt>.. 141 Mich. 167; Ryerson v. 523. T.aketon Twp.. 52 Mich. 509; Au- 32. Sawyer-Goodman Co. v. ditor Gen. v Duluth, etc., R. Co., Crystal Falls Twp.. 56 Mich. 50n. 11ft Mich. 122. TOWNSHIP TAXES 123 sumptions may be made in favor of the necessities of a new region, but no presumption can stand when overthrown by facts 34 . 123. Highway Tax Estimates. These estimates must be furnished in writing, signed by the commissioner and filed with the township clerk. A record which discloses that the commissioner, clerk and supervisor met, and that a motion to assess certain highway tax carried, is of no value. It meant that a majority of the three were in favor of the tax; and such minutes are of no value as a record because it was not required to be made. When the commissioner assesses highway taxes, it is done by separate lists, prepared and signed by himself, for the separate districts and delivered by the commissioner to the over-seers; and an authority to levy a money tax must appear of record. There can be no tax levied by the commissioner or under his direction, by parol 35 . This estimate, however, is unnecessary when the electors them- selves vote the highway tax 36 . Before the township board can authorize the raising of a regular highway tax, the estimates of the commissioner must have been submitted to the electors, and there must have been a refusal or 34. Mich. Land, etc., Co. v. La eral. 72 Mich. 415, it is held that Anse Twp., 63 Mich. 700, 703. the lahor and money tax author- Same principle in Midland Twp. izcd hy H. S. 1327, is only in- v. Roscommon Twp., 39 Mich. tended to meet ordinary expenses. 424. The right of the commissioner 35. See 115. supra, as to ac- under H. S. 1379, 1380. C. L. tion of the electors. Mich Land, '97, 4129, 4130, to expend $1,000 etc.. Co. v. La Anse Twp., 63 in bridging, and certify the same Mich. 700. to the supervisor, is not affected 36. Turnbull v. Alpena Twp., by the vote of money and labor 74 Mich. 621 ; Lake Superior Ship tax under the first mentioned Canal Co. v. Thompson. 56 Mich. sections. 493. In Longyear v. Auditor Gen- THE LAW OF TAXATION neglect to vote the same 37 . The highway labor tax may be imposed, however, without submitting the same to the electors 38 . Although the commissioner orders an excessive labor tax, yet in the absence of the rolls, it will not be presumed to have been levied 39 . Under C. L. '97, 3443, a municipality will be presumed to have raised any excess of highway tax for the purpose of keeping its streets in reasonable repair. The statute does not require that the records show that such a necessity existed 40 . 124. Return of Highway Labor Tax. The holding of the court with respect to the return of this labor tax has varied with the 'different statutes and methods of enforcing the collection of taxes. Under the old system of selling lands delinquent for taxes by adver- tisement, the necessity of a verified return by the over-seer was uniformly held mandatory and jurisdictional, not waived or cured by the healing acts 41 . Since the change 37 In Peninsular Savings Sparrow, 116 Mich. 574, it is held Bank v. Ward, 118 Mich. 87, it is that the highway tax under 3 H. held that electors could not vote S. 1356, C. L. 4106 (highway a highway tax of 1 per cent; the labor), may be raised by the court would not presume that l / 2 township board where the elec- per cent was regular highway tax tors failed to vote for the same, and l / 2 per cent labor tax, nor, being different from the tax un- because laid before the board of der 3 H. S. 1354-5, C. L. '97. supervisors, would it be presumed Same principle in Auditor Gen- that any part was for highways eral v. Duluth, etc., Ry, 116 Mich. and bridges under H. S. 483, C. 122. L. '97 ..... Thayer Lumber Co. 39. Hoffman v. Lynburn. 104 v. Soringwells Twp., 131 Mich. Mich. 494. 12; Weston Lumber Co. v. Mu- 40. Diamond Match Co. v. nising Twp., 123 Mich. 13; Har- Ontonagon. 140 Mich J83. ding v. Bnder, 75 Mich. 316; Au- 41. Lake Superior, etc., Co. v. ditor General v. Duluth, etc., Ry., Thompson, 56 Mich. 493 ; Hogels- 116 Mich. 122; Tillotson v. Web- kamp v. Weeks. 37 Mich 422; Up- ber, 96 Mich. 144, 154; see Audi- ton v. Kennedy, 36 Mich. 215; tor General v. Sparrow, 116 Mich. Seymour v. Peters, 67 Mich. 415 ; 574. N'owkirk v. Fisher. 72 Mich. 113; 38. In Auditor General v. Caledonia Twp. v. Rose, 94 Mich. iC'J TOWNSHIP TAXES > 1'.'"' in the methods of enforcing the collection of delinquent taxes by first providing a hearing in equity, the omission of this return is held not to be jurisdictional, and to be covered by the healing acts 42 . 125. Highway Tax. Miscellaneous. A special highway tax, not voted by the electors, and exceeding the amount allowed by law, is void 43 . The money tax for highway purposes should be spread accord- ing to the assessed valuations of the preceding year 44 . Taxes assessed to pay orders drawn by the township clerk for repairing bridges, are illegal when the record fails to show any authority for such expenditure 45 . Where an in- corporated village is within a township, and a highway money tax is ordered raised, it should be spread over all of the township, including the village, though it will all be expended without the village 46 . When the question be- fore the electors is whether they shall raise highway money by a tax or by a loan, they must decide upon one method; they cannot adopt both methods 47 . Highway monies raised by road districts as a special fund for a state road, are not county funds though in the hands of the county treasurer; and the board of supervisors cannot control their disposi- 2l(\: Mich Land, etc, Co. v. La the taxes. In Auditor General v. Anse Twp. f>3 Mich. 700, holding Longyear, 110 Mich. 223. it is held that 4 of Chap. 2 of Act 10 of to come within the healing act, 3 Public Acts of 1882. did rot re- H. S. 1424, C. L. 4179. quire this return, but that section 43. Flint, etc., Ry. v. Auditor was repealed. General. 41 Mich. 635. 42. In Hamilton, etc., Co. v. 44. C. L. 4073. 4074 ; Mills v. La Anse Twp., 107 Mich. 419, it Richland Twp., 72 Mich. 100. was held, in a bill to quiet title, 45. Rogers v. White. fiS Mich, that such omission was jurisdic- 10. tional and that the healing act din 46. Ryerson v. Laketon Twp. not apply : but nevertheless, it was 52 Mich. 509. a proceeding in equity and the 47. Loomis v. Rogers Two.. 53 cloud would be removed only on Mich. 135. condition that complainant pay $ 125 THE LAW OF TAXATION 170 tion 48 . A return of highway labor tax by the over-seers is not a pre-requisite to placing this tax provisionally upon the roll. It can be marked off on presenting receipts showing that the tax has been paid in labor 49 . An entry in the records showing that a tax was levied for the succeeding year renders that tax void. Parol proof is inadmissible to show what year was intended 50 . A statute authorizing money raised in one surveyed township to be expended in another surveyed township, is unconstitutional as violating the rule of uniformity 51 . Upon a similar principle, the township cannot levy a special town tax to pay void dis- trict orders, though the township originally used the road district money 52 . The statute provides that the highway commissioner may purchase road machines upon a petition signed by a majority of the owners, in interest, of the taxable prop- erty in the road districts interested. The township is not Where there is a failure of payment the remedy is not by primarily liable for the purchase price of these machines, assumpsit, but by mandamus to compel the proper officers to spread the tax, or pay it when collected 53 . 48. Alcona Co. v. White, 54 tracts to be made with townships ; Mich. 503. that in the second (C. L. 4194) 49. Lake Superior, etc., Co. v. the legislature, in providing a Thompson Twp., 56 Mich. 493. means whereby road districts in a 50. Mich. Land, etc., Co. v. Re- township might purchase a road public Twp., 65 Mich. 628. machine, recognized that such 51. Manistee Lumber Co. v. districts were not municipalities Springfield Twp., 92 Mich. 277, which could assume obligations, construing Local Act No. 294 of and sue and be sued, and provid- Laws of 1891. ed a way of payment for this im- 52. McFarlan v. Cedar Creek plement necessary in the construc- Twp., 93 Mich. 559. tion and maintenance of highways 53. Pape v. Fenton Twp., 140 through the provisions of the Mich. 165, 172: The court says: statute. No proceeding is neces- "It is evident from a reading of sary to determine the amount of the two sections that the first (C. such indebtedness. The amount is L. 4193) provides for these con- fixed by the proper township of- 171 TOWNSHIP TAXES > I- 1 ' The fact that the signatures of petitioners to purchase such a machine were procured by fraud will be sufficient ground to refuse a mandamus to compel the levy of the tax even though part of the purchase price of the machine has been paid. The tax payers have a right to presume that any tax levied therefor is for a legal and binding con- tract, and they will *not be estopped from contesting a future installment because they paid the first installment 54 . 126. Highway Tax. Action of Supervisors. The action of the board of supervisors in voting such a tax will be presumed to be warranted by statute. To ren- der such a tax unlawful it must affirmatively appear that the money was to be used for purposes not allowed 1 y law 55 . They have no authority to raise a tax to be expended upon a territorial road under a direction of their commit- tee. The duty of repairing these roads is upon the town- ships, and the law does not seem to have ever required or permitted counties to keep them up. They are state roads and not county roads; and the state has not imposed the duty of maintaining them upon counties, though it did allow the counties to construct them 56 . Taxes and loans, when authorized to be raised by any public body, must be raised under the implied condition that they are to be applied to the public uses under the control or care of that body. They cannot be raised for the purposes or uses of others ficers, who certify to the board of v. Keeney, 147 Mich. 1-1 supervisors. The contract fixes 55. Stockle v. Silsbee, 41 Mich, the purchase price. Payment can 615. be made only through official 56. Peninsular Savings Bank channels." v. Ward, 118 Mich. 87, 91. 54. Indiana Road Machine Co. 126 THE LAW OF TAXATION 172 unless such a power is plainly given, and such a power can- not be given for all purposes 57 . Certain highways and roads are put under the control of the supervisors by the constitution, not absolutely, but under legal restrictions. Those legal restrictions have confined them to state and territorial roads. Other roads are put under other officers, to avoid a clashing of jurisdictions. The county board can have no occasion to raise money for other than its own roads, and must exercise its own judg- ment in expending it. It cannot raise money to be paid over to the town officers, without any definition of pur- poses, to be spent under the direction of a town officer 88 . Neither has the board any authority to grant a bonus to a contractor upon a state road, the statute having provided that the contractors pay should be in swamp lands 59 . The limit which they can authorize a township to raise or bor- row in any year for repairing roads, is $1000.00. Any other construction of this statute would permit the town- ship to exhaust its power to raise money for years to come, and leave it thereafter powerless to raise a single dollar 60 . The board of supervisors have power to apportion the expense of a bridge upon the town line between adjoining townships; and the fact that such bridge will cost more than $1000.00 is immaterial. The constitutional limitation only applies to sums to be raised by the entire county. The statutory provision that townships shall not raise more than 57. Attorney General v. Bay C. L. 4050 et seq. Frenchtown County Board, 34 Mich. 46, 48 ; Twp. v. Monroe Board, 89 Mich. In Goldsmith v. Nankin, 15 Mich. 204. 347, the power of the board was 59. Davis v. Ontonogon Board, held limited to state and terri- 64 Mich. 404. torial roads ; Sage v. Stevens, 72 60. Newaygo County Mfg. Co. Mich. 638; Boyce v. Auditor Gen- v. Eichtenaw, 81 Mich." 416; H. S. eral. 90 Mich. 314. 483, sub. 15 ; C. L. '97, 2484. See 58. Act No. 62 of Public Acts Lighting and Water Works, of 1889; 3 H. S. 1310 et seq. 173 TOWNSHIP T.\\ ^ i-.'; $2000.00 for building or repairing any bridge unless the question shall be submitted to a vote of the electors, does not apply to bridges upon the town line, authorized by Act No. 62 of Public Acts of 1889, C. L. '07, i !:. 1 ,/ .*l Dist. v. School that where the board of education Dist. 63 Mich. 51. had not authorized it. the town- 130 THE LAW OF TAXATION 176 tax is assessed upon the valuations fixed by the board of review, and not upon the equalized valuation fixed by the board of supervisors 73 . 130. School Taxes. Miscellaneous. It has been the policy of the Michigan schoool laws that a primary school district should not contain more than nine sections of land; and this cannot be enlarged from un- organized territory, though it may be from other organized districts. Where lands are unlawfully included the school tax is void 74 . Where two rolls are required, one for city taxes and one 'for state and county, the placing of school taxes upon the state and county roll renders them invalid 75 . School taxes, not assessed one year because not prop- erly certified to the clerk in time to be placed upon the roll, may be assessed the succeeding year 76 . The graded schools, or high school districts, are not limited in territory to the seize of a primary district and may include land for taxation more than two and one-half miles distant from the school house 77 . The school tax must be spread upon all of the taxable property within the district; and where a portion of the district is omitted, the school tax is void 78 . At common law, the township was not liable for the de- falcations of its officers 79 ; but under the statute, the entire township must make good the loss of a school tax occas- sioned by the defalcation of its treasurer. Mandamus will 73. Deerfield Twp. v. Harper, 4704. 115 Mich. 678. 77. H. S. 5052; C. L. '07, 74. Simpkins v. Ward, 45 4665; Keweenaw Ass'n. v. Mich. 559 ; Coulter v. School In- School Dist.. 98 Mich. 437. spectors. 59 Mich. 391. 78. Auditor General v. Mo- 75. Folkerts v. Power, 42 Arthur. 87 Mich. 457, 465. Mich. 283. 79. Hart Twp. v. Oceana Co. 76. Wilcox v. Eagle Twp, 81 44 Mich. 417. Mich. 271 ; H. S. 5090 ; C. L. '67, 177 TOWNSHIP TAX be to compel the supervisor to spread such loss upon the tax roll. If the treasurer's bond is good, the township suffers no loss. If poor, it is the fault of the supervisor, the authorized agent or the township 80 . 131. Surveyor's Tax. The statute authorizes a levy to be made in some cases, on particular parcels of land, to meet the cost of their sur- vey. Presumptively, this tax is valid 81 . 132. Dog Tax. This tax is not a burden, charge, or imposition, for pub- lic uses within the constitution. This tax is a regulative expedient favoring repression of private mischief and promoting the redfess of private injuries. It is a species of legislation which pertains to another department of power, and when the state in pursuing its duty to accommo- date as far as practicable the desire and the right to keep dogs, to the more beneficial right of breeding and keep- ing sheep, has seen fit to apply the method of the statute. This act is an exertion of the police power, and no reason is perceived for denying its validity 82 . It is immaterial that the tax may be laid in cities where sheep are not bred or raised. In consequence of the well known liability of dogs to break through all discipline, and because also of their liability to madness, it has been customary always to make dogs the subject of special and particular 80. Smith v. Jones, 136 Mich. Horn v. People, 46 Mich. 183; 532. Blair v. Forehand, 100 Mass. 136; 81. Silsbee v. Stoeckle, 44 Carter v. Dow, 16 Wis. 298; Mich. 561; C. L. 1871, 5595; C. L. Tenney v. Lenz, 16 Wis. 56 ; '97. 52594. Mitchell v. Williams. 27 Ind. 62; 82. Act 198 of Public Acts of Morey v. Brown, 42 N. H. 373: 1877; Act 214 of Public Acts ot Wolf v. Chalkers. 31 Conn. 121: 1S89; 3 H. S. 552132a-2132e ; Van Hendrie v. Kalthoff, 48 Mich. 30. (12) 133, 134 THE LAW OF TAXATION 178 regulations. Under the police power, the legislature has, since the organization of the state, from time to time placed restrictions upon the keeping of dogs, and by legislative enactment provided regulations for their keeping for the safety of individuals and sheep breeders in the care of their flocks 83 . 133. Fence Viewer's Tax. At common law no obligation to build or maintain a fence for the convenience of an adjoining owner or pro- prietor existed. The statute, being in derogation of the common law, must be strictly construed. By its express terms, it applies only to lands inclosed by fences. If a land owner chooses not to occupy that portion of his land adjoining his neighbor, or does not care to inclose it for his own purpose, the law does not compel him to do it for another 84 . 134. Agricultural Society Tax. The statutory requirements must be strictly followed. A condition precedent to raising this tax is the filing of proof with the board that the society has raised $100.00 85 . The certificate required under this law requires a certificate signed not only by the secretary of the company, but also by its president 86 . A general township tax for improving fair grounds is illegal, but so far as it is paid in it should be applied to the purposes for which it was raised when debts had been incurred upon the strength of the tax 87 . 83. Longyear v. Buck, 83 Mich. 85. C. L. 1871, 1687 ; Hall v. 236, 240. Kellogg,. 16 Mich. 135; Harding 84. H. S. 797 ; C. L. '97, v. Bader, 75 Mich. 316. 2416 ; Lantis v. Reithmiller, 95 86. Hogelskarrip v. Weeks, 37 Mich. 45; Bechtel v. Neilson, 1!> Mich. 22. Wis. 59; Bills v. Belknap, 38 la. 87. French v. South Arm 225; Bland v. Hixenhaugh, 39 Ta. T W |>.. 122 Mich. 593. 536. i;: TOWNSHIP TAXES 135 135. Bounty Tax. Under Act 86 of Laws of 1865, the various townships were authorized to levy a tax to pay the bounties which had been offered to encourage enlistments in the Federal army. The purpose of this tax was legal and patriotic and the Act is constitutional 88 . The Act of 1865 did not cover advances made by individuals upon their own ac- count; and not upon the credit or authority of the muni- cipalities 89 . A prior act, legalizing bounties already voted is held valid, though there was no provision at the time the vote was taken as to giving notice, and the regular notice of special meetings of electors was not given 90 . 88. Smith v. Crittenden, 16 2^4. Mich. 152. 90. Laws of 1863, pp. 92-95; 89. Miller v. Grandy, 13 Mich. Crittenden v. Robertson, 13 Mich. 590; Gale v. Supervisor, 16 Mich. 58, 62. CHAPTER VIII. THE ROLL. 136. Determining Amount of County Tax. 137 Misappropriation of Money. 138. Certifying Taxes. 139. Certificate from Board. 140. Collector's Roll. 141. Extension of Taxes. 142. Excess of Taxes. CROSS-REFERENCES. Certificate of Special Assessment, 356. Confirmation of Special Assessment, 357. Description of Property in, 81-93. Description, In Re Drains, 283. Presumptions from, 238-241. Roll for Drain. 289. Roll for Special Assessment, 349-351. Signing, 236. 136. Determining Amount. The designation of a percentage on a definite sum is just as certain if it were calculated and stated in figures, and leaves nothing to be done to make it known except a simple calculation 1 . The board of supervisors cannot raise money to be turned over to the townships, without stating the pur- pcse thereof 2 , nor can it raise money for highways other than state and territorial roads 3 . The board may adopt the report of the finance committee as to sums necessary to be raised; and such action is valid 4 . The board cannot 1. C. L. '97, 3860, Tax Law, 3. Boyce v. Auditor General, 37. Hubbard v. Winsor, 15 90 Mich. 314; Sage v. Stevens, 72 Mich. 146, 154 ; Boyce v. Auditor Mich. 638 ; Gamble v. Stephens, 78 General, 90 Mich. 314. Mich. 302. 2. Attorney General v. Bay 4. Silsbee v. Stoeckle, 44 Mich. County, 34 Mich. 46. 181 THE ROLL > I'M levy a tax to pay a sheriff a salary in lieu of his legal fees. It is essential to public safety that the administration of criminal justice be kept as far as possible free from any extraneous meddling or interference; and if the supervisors or any other body can have a voice in the payment of the sheriff's charges, it is evident that his subservience to them is invited, if not compelled, and that they can have a good deal to do with the pursuit or exemption of criminals. If the principle is once admitted that any deviation can be had from the statutory allowances, the temptation is directly offered to the sheriff to make himself agreeable to the board on the one hand, and to shirk unprofitable duties on the other 5 . The board may direct the raising of the county tax in one gross sum, though it might be more satisfactory were the items of their estimate set forth in their resolu- tion 8 . The raising of the county tax, and apportionment of state and county taxes, must appear of record. It will not be sufficient for the clerk of the board to certify to such taxes 7 . After the board have fixed the amounts to be raised, and equalized the various townships, the work of apportionment is purely ministerial 8 . The board cannot authorize the construction of a public building, or make a valid contract for the erection of a public building with- out the concurrence of two-thirds of the supervisors elect 8 . 137. Misappropriation of Money. The mere allowance of illegal demands by the board of supervisors the preceding year will not invalidate the levy 561 ; Boyce v. Auditor General, 7. Boyce v. Sebring, 66 Mich. 90 Mich. 314. 210. 5. Hewitt v. White, 78 Mich. 8. Fay v. Wood, f>."> Mich. .193. 117; Collins v. Rea, 127 Mich. 273. 9. Wayne Co. v. Circuit Judge. 6. Weston Lumber Co. v. ill Mich. 33. Munising Twp., 123 Mich. 138. 138 THE LAW OF TAXATION 182 of a subsequent year unless it appear that such illegal de- mands were included within the levy. Should the subse- quent tax levy be rendered illegal because the board of a preceding year, had rendered it necessary to raise a larger amount the subsequent year, it is obvious that the county, by a single misappropriation of money, would lose all power to levy and collect taxes thereafter 10 . Where it appears from the records of the board, however, or can be proved, that part of the tax ordered raised is for an illegal purpose, as a bonus, the township supervisors will not be obliged to spread such tax 11 . While the board may borrow money for cer- tain specified purposes, it cannot borrow money to defray the current expenses and charges of the county. Money for this purpose must be raised by taxation only 12 . 138. Certifying Township Taxes. Although the statute required all state, county and town- ship taxes to be certified by the clerk of the board to each supervisor, yet the neglect so to do is a formal defect, healed by the statute 13 . Where a sum of money has been lawfully voted for township purposes the failure of the board to direct its levy will not invalidate such tax 14 ; but the 10. Wright v. Dunham, 13 38. Pillsbury v. Auditor Gen- Mich. 414; Peninsular Iron Co. eral, 26 Mich. 245, v. Crystal Falls Twp., 60 Mich. 14. Upton v. Kennedy, 36 510; Boyce v. Auditor General, Mich. 215; Auditor General v. 90 Mich. 314 ; Clee v. Trenton, 108 McArthur, 87 Mich. 457 ; Robbins Mich. 29.3. v. Barron, 33 Mich. 124; Boyce 11. Supervisors v. Mentor v. Sebring, 66 Mich. 210, 218; Twp., 94 Mich. 386; Wager >. Alvord v. Collins, 20 Pick. 418; Brandow, 104 Mich. 39. In Boyce Hunt v. Chapin, 42 Mich. 24; v. Sebring, 66 Mich. 210, 215. a Auditor General v. Hill, 98 Mich, resolution granting illegal salaries, 327. In Post v. Harris, 95 Mich, passed after the county levy had 321, it is held that a township been properly estimated, is held drain tax stands upon a different not to invalidate the county tax. footing from general taxes (3 12. Supervisors v. Warren, 98 H. S., 1740f4,) and cannot be Mich. 144. assessed unless ordered by the 13. C. L. '97, 3861, Tax Law, Board. 183 THE ROLL 139 board cannot order the levy of a township tax unless it has been properly certified to them 15 . The late decisions hold that the supervisor cannot question the legality of taxes certified to him from the board of supervisors, but must spread them as certified 16 ; but in an extreme case where the board attempted to grant a bonus, a supervisor was held justified in refusing to spread such tax 17 . It is not necessary that the board make an examination of the papers and certificates submitted to them by the townships show- ing the amount to be raised therein, or that it heard and considered all objections made thereto by persons affected thereby. The board has nothing to do with the ordering of township taxes. While it has authority to examine the returns and hear disaffected parties, it is with a view to having the proceedings perfected, if irregular. The failure to do this is an irregularity at most 18 . 139. Certificate From Board. Collectors Roll. The certificate from the clerk of the board of supervisors to the supervisor forms no part of the assessment roll, and therefore is not required to be copied into the collectors roll 19 . Therefore, it will not be presumed that because the collector's roll has no such certificate attached that it was missing on the original roll 20 , nor will the copy, if any, on the* collector's roll, be evidence of the original upon the 15. Boyce v. uditor General. tor Twp., 94 Mich. 386. 90 Mich. 314. In Boyce v. Sebring, 18. Auditor General v. Hill, 98 66 Mich. 210, it is held that evi- Mich. 327. dencc of the levy of state and 19. See Extension of Taxes county taxes must he shown other 8141, Post. Tweed v. Metcalf. 4 than by the certificate of the clerk. Mich. 579, 597 ; Boyce v. Sebring. 16. C. L. '97, 3860. Union 56 Mich. 210. School Dist. v. Parris, 97 Mich. 20. Bird v. Perkins, 33 Mich. 593. 28. 17. Cheboygan Board v. Men- 140 THE LAW OF TAXATION 184 supervisors roll 21 . Neither is the collectors roll evidence of any endorsements upon the original roll 22 . 140. Collector's Roll. The taxes assessed should be extended upon the corrected assessment roll which the supervisor receives from the board of supervisors, after its authentication. No other roll is brought to the attention of the board, and this alone re- ceives the sanction of the board. With this before him, and the requisite certificates and statements in regard to the taxes to be levied, and their destination, the supervisor is required to proceed to assess ''according and in propor- tion to the individual and particular estimate and valuation specified in the assessment roll." He is next to make the collection roll in his office. As this correspondence is in- dispensable in the first instance, its continuance is equally indespensable. The symmetry of the proceedings, the con- sistency of the records, and the dependence of the collec- tion roll upon the first roll and their legal connection, alike require it. As the first is to -remain in the supervisors office as a public record or memorial, so the collection roll is to go ultimately to the county treasurer's office, to be kept for the same purpose. The entire theory of the system and all the regulations, contemplate that these documents shall be and continue substantially alike, and in all essential particulars speak the same language when referred to. No lawful change can be made in the collection roll unless warranted by the state of the roll having the sanction of the board of super- visors; and consequently, the collection roll cannot legally 21. Hecock v. Van Dusan. 80 22. Putnam v. Fife Lake Twp., Mich. 359; Redding v. Lamb, 81 45 Mich. 125. Mich. 318. 185 THK ROLL ? 1 1" be changed so as to be in substantial disagreement with the other. This provision relative to the correspondence of the original and copy of the assessment rolls is enacted for the benefit and protection of the tax payer, as well as for the protection of the public. It was designed to protect the tax payer against unauthorized meddling with the amount of taxes assessed against him, after the roll has passed from the hands of the supervisor. It is also designed to protect the township against the loss or destruction of the collec- tion roll, and to afford means for the collection of the taxes assessed 23 . Statutory Provisions. C. L. '97, 3862, after providing that the super- visor shall assess the taxes in proportion to the valua- tions on the roll, continues: "For the purpose of avoiding fractions in computation, the assessor may add to the amount of the several taxes to be raised not more than one per cent; said excess shall belong to the contingent fund of the township; such taxes shall be entered in separate columns, as follows: All school taxes and the one mill tax in one column, high- way taxes in another, township taxes in another, county taxes in another, and the state taxes in an- other column ; and if other taxes are at any time re- quired to be raised, they shall be placed in separate columns. The total of all the taxes assessed against any one valuation or parcel of property shall be added and carried out in the last column upon the right hand side of such roll." 23. Ferton v. Fuller, 33 Mich. 203; Seymour v. Peters. 67 Mich. 415, 417. 141, 142 THE LAW OF TAXATION 186 When there is a failure of duty on the part of the super- visor to extend the taxes at all upon the original roll, but he does extend them upon the collectors roll to which he attaches his warrant, such failure will not vitiate the tax unless it appear that the tax payer is prejudiced by such action 24 . 141. Extension of Taxes. Under the statute, the several taxes levied shall be assessed in separate columns; all school taxes and the one mill tax in one column, highway taxes in another, state taxes in another, county taxes in another, and any other taxes, if levied, in separate columns 26 . Where the taxes are not distinguished, or several taxes required to be separately extended are blended in one aggregate under one heading, only that portion of the tax will be valid which should have been separately assessed under the name of the heading of the column 26 . A fund for building or repairing bridges is distinct and separate from the high- way tax 27 . 142. Excess of Taxes. Prior to judicial determination of the legality of the taxes levied, a tax payer might pursue one of several 24. Ludington v. Escanaba, 115 section. Mich. 288, 290. In West Michigan 26. In Case v. Dean. 16 Mich. Lumber Co. v. Dean, 73 Mich. 12, 31, it is held that there is no 459, it is held that the fact that presumption that the one mill tax the collector used the original roll was included in an excessive town to collect from, instead of a copy, or state tax. Stockle v. Silsbee, 44 cannot be complained of by the Mich. 561 ; Tillotson v. Weber, 96 tax payer. There is a similar Mich. 145, 155. (Highway and holding in Auditor General v. township tax blended.) Hutchinson, 113 Mich. 245. 27. Quinlan v. Manistique, 85 25. C. L. '97 3862. in prio> Mich. 23. 187 THE ROLL 142 methods to avoid the payment of the illegal excess. He could pay the entire tax under protest and recover back the excess ; or, upon real estate, he could file a bill in equity to quiet title upon tendering the taxes legally chargeable upon the land; or he could allow his premises to be sold for taxes and either file a bill in equity to remove the cloud or he could avoid the tax deed when assailed in ejectment or in an action at law. The rule "ilc iniiiintis non cnrt.it lex" does not apply in these proceedings. The authority to tax is fixed by statute and must be strictly pursued. The supervisor has no authority to tax at his own discretion, but can only assess such taxes as are properly certified to him for that purpose, and such as the law makes it his own immediate duty to assess without such certificate. Any material excess, therefore, in state, county, or township tax, will render all of the taxes in that column void on a tax sale. Though the excess is small, it cannot be dis- regarded and would avoid a tax deed under the old tax laws 28 . The assessment by the supervisor of one per cent 28. Case v. Dean, 16 Mich. 12, Detroit, 41 Mich. 128. In Herrick 32. The excess was 6 cents. Lake v. Big Rapids, 53 Mich. 554, it is Superior Ship Canal Co. v. held that when the assessment Thompson, 56 Mich. 493, 498; upon any particular class of pfop- Stockle v. Silsbee, 44 Mich. 561 ; erty is clearly separable and Lacey v. Davis, 4 Mich. 140 ; identified upon the roll, as a tax Buell v. Irwin, 24 Mich. 145 ; on an unpaid legacy, the norv Wattles v. Lapeer, 40 Mich. 624. liability of such property to tax- In Rogers v. White, 68 Mich. 10, ation can be shown in assumpsit the excess was $25.00 upon the to recover back the tax. In Bor- township. Sinclair v. Lamed, 51 roughs v. Goff. 64 Mich. 464. the Mich. 335 ; Hall v. Kellogg. 16 excess was 5 or 6 cents. Williams Mich. 135; Tillotson v. Webber, v. Mears, 61 Mich. 86. In Boyce 90 Mich. 145, 153; Seymour v. v. Sebring, 66 Mich. 210. the ex- Perers, 67 Mich. 416. The excess cess was $3.10. in Bailey v. Hay- was 45 cents. In Edwards v. wood, 70 Mich. 188, the excess Taliafero. 34 Mich. 13, $12,000.00 upon the township was $59.65. In was illegally upon the tax rolls of Gamble v. Stevens, 78 Mich. 303, the city of Detroit; Hammontree the excess was $1000.00 upon the v. Lott, 40 Mich. 190; Connors v. county. In Wager v. Bowley. 109 142 THE LAW OF TAXATION 188 additional to avoid fractions, .and his directions in relation thereto in his warrant, do not invalidate the tax**. Mich. 388, the excess was $200.00 29. Grand Rapids v. Wellman, upon the county. Wager v. Bow- 85 Mich. 234. ley, 104 Mich. 38. CHAPTER IX. COLLECTIONS OF LIEN FOR AND LIABILITY FOR TAX. 8 143. Lien for Taxes Upon Real Estate. 5144. Lien Upon State Swamp Lands. 145. Lien for Drain Tax. 5 146. Lien for Tax Upon Personal Property. 147. Enforcement of Lien upon Personal Property. 148. Chancery Sale. 149. Warrant. 150. Warrant, Extension of 151. Collector. 152. Bond of Collector. 153. Liabilty of Collector. 154. Liability for Tax. 155. Payment. 156. Certificates as Payment. 157. Voluntary Payment. 158. Involuntary Payment. 159. Common Law Protest. 160. Statutory Protest. 161. Demand for Tax. 162. Tax Receipts. 163. Levy. 5 164. Levy Upon Railroad Property. 165. Sale Under Levy. CROSS-REFERENCES. Equitable Actions In Re. 430-440. Foreclosure of Tax Lien. 377-404. Lien of Void Tax Title Holder, 211. Redemption, 199. Refunding of Taxes, 200, 212. State Tax Lands, 197. 143. Lien for Taxes Upon Real Estate. Up to the time fixed by the statute for delivering the roll to the collector, there is no tax which can be paid by or to any one, nor up to this time could the amounts upon the several parcels be ascertained, and the land is just as clear 143 THE LAW OF TAXATION 190 from any charge or lien on account of the current year as it is for any future year. The tax cannot, therefore, in the nature of things, constitute before that time, an in- cumbrance upon the land. There is simply a liability to future taxation, a liability which always exists, and it can make no difference in principle, so far as relates to the question of incumbrance, whether it is liable to be taxed one month or year or ten years hence. The provision mak- ing the tax a charge against the owner the second Monday in May, is for the benefit of the state, and enables the col- lector to levy upon the personal property of the then owner, and was intended to apply to non-residents and bring them on a parity with the resident owners. As between a vendor and a vendee, it is the duty of the vendee to pay the tax if he acquired the property any time before the lien attached 1 . Statutory Provisions. C. L. '97, 3863, Tax law, 40: "The taxes thus assessed shall become at once a debt to the township, ward or city from the persons to whom they are assessed, and the amounts assessed on any interest in real property shall, on the first day of December, be- come a lien upon such real property, and the lien for such amounts, and for all interest and charges thereon, shall continue until payment thereof. And all per- sonal taxes shall also be a lien on all personal prop- 1. C. L. '97, 3363: See 203, the grantor was liable to the post, as to lien of mortgagee. grantee therefor, the deed to the Harrington v. Hillard, 27 Mich. property having passed on that 271; Jacobs v. Union Trust Co. day. In Detroit v. Patten, 143 15 L. N. 913. In Eaton v. Mich. 243, it is held that the tax Cheesebrongh, 82 Mich. 214, it is becomes a personal charge against held that the Detroit City taxes the owner on Apr. 1st, and he will become a lien on July 1st, when be liable though he remove from the collector receives the roll, and the city on Apr. 2nd. 11>1 COLLECTION OF LIEN FOR AND LIABILITY FOR TAX 111 erty of such persons so assessed from and after the first day of December in each year, and shall take pre- cedence of any sale, assignment or chattel mortgage, levy or other lien, on such personal property, executed or made after said first day of December, except where such property is actually sold in the regular course of trade." C. L. '97, 3837, Sub. 8, provides for a lien upon property in transit where the tax is paid by the person chargeable therewith, not being the owner, and also provides for recovering such sum so paid by suit in attachment or garnishment. C. L. '97, 3882, Tax law, 59, provides that the expense of advertising delinquent tax lands for sale shall be a lien upon such lands from the 1st day of October preceding the sale. C. L. '97, 3892, Tax law, 69, provides that the withholding lands of incompetents under guardianship from sale shall not prejudice the lien of the state. C. L. '97, 3883, Tax law 60, provides that the lien of the state for unpaid taxes upon lands returned delinquent shall be a first or preferred claim upon such lands, not to be set aside or annulled except for the causes specified by statute. C. L. '97, 3890, Tax law 67, provides that pay- ment of the amount decreed against the land shall be a discharge of the lien. The lien for unpaid legal taxes still remains, though for some reason the collection could not be enforced. It is within the power of the legislature to subsequently provide for the enforcement of this lien. Thus, under the tax law of 1882, an assessment could be made, but could not be en- 143 THE LAW OF TAXATION U)2 forced, but the lien was enforced under the law of 1887 2 . The lien also continues in favor of the state as to the legal taxes paid, although the tax deed, or sale, is held void 3 . In other words, this lien is purely statutory, and can only be enforced by virtue of a statute authorizing it. It does not enure to the benefit of a purchaser at an irregular or illegal tax sale unless expressly provided by statute; and without such statutory provision, the tax purchaser has no remedy for the money paid for the tax deed or taxes where the tax sale is set aside 4 . The lien for taxes for years prior to those for which the land was sold, is extinguished when the state gives a tax deed, although such taxes have not been paid. The purchaser takes all of the title of the state; and the land cannot thereafter be made chargeable with unpaid back taxes 5 . At one time, a lien existed in favor of the pur- chaser at an invalid tax sale, but no such lien is provided for in the tax law of 1893 6 . By virtue of the lien for taxes, the township may institute suit to recover unpaid taxes 7 . Where property is sold for taxes and bid in by 2. Croskery v. Busch, 116 Miss. 681 ; People v. Henckler, Mich. 288; Sage v. Auditor Gen- 137 111. 580. In West Mich. Lum- eral, 72 Mich. 638; Humphrey v. her Co. v. Dean, 73 Mich. 459, it Auditor General, 70 Mich. 292. is held that the lien attached as 3. Auditor General v. Patter- soon as the supervisor extended son, 122 Mich. 38 ; Auditor Gen- the taxes upon his original roll, eral v. Sherman, 136 Mich. 157 ; When the statute authorizes it, Auditor General v. Carpenter, 138 the lien enures to the benefit of Mich. 669 ; Auditor General v. the tax title purchaser ; Peet v. Newman, 135 Mich. 288. Obrien, 5 Neb. 360; Bryant v. 4. Bangor Twp. v. Smith Estabrook, 16 Neb. 222; Hunt v. Transportation Co., 112 Mich. Currey, 37 Ark. 104; Flinn v. 601 ; Muskegon City v. Muskegon Persons. 60 Ind. 573 ; Fairbanks County, 123 Mich. 272, 275. v. Williams, 24 Kans. 19; Russell 5. Auditor General v. Clifford, v. Hudson, 28 Kans. 10"0; Thomp- 143 Mich. 626. son v. Savage, 47 la. 524. , 6. Croskery v. Busch, 116 7. It existed in laws of 1869 Mich. 288; Stephensoh v. Martin, and 1885, 1 H. S.. 1167; 3 H. S.,. 84 Ind. 161 ; Cogburn v. Hunt, 57 1169w7. 193 COLLECTION ni- I.IKN I-OR AM) I.IABIUTY FOR TAX 144 the municipality, the lien for the tax is merged in the title acquired. There will be no contingent tax lien thereafter 8 . The purchaser of state homestead lands, where the title fails, cannot set up the purchase price as a lien against the land 9 . One who has been subrogated to a mortgage on land, which he has paid and who is in possession Claiming title, will have no lien for taxes paid on the failure of his title. Such taxes so paid can, however, be set off, in an accounting, against the use of the place 10 . 144. Lien Upon State Swamp Lands. These lands, when partly paid, are assessable for taxes though the title is still in the state. The state, in respect to these lands, has been acting in two distinct and quite dissimilar capacities; as a proprietor in selling them, and as a sovereign in taxing them. In the first capacity, it treats with a purchaser precisely as any other proprietor might, offering, agreeing upon, and accepting terms, and entering into stipulations from which it is not at liberty to depart, and to which it cannot add in the smallest par- ticular except with the assent of the person with whom it is dealing. The contract it makes must stand, and the other contracting party is entitled to all suitable remedies upon it. The state, as a sovereign, cannot deal with it otherwise than as it might with a contract between two private citi- zens. But the state, as a sovereign, may subject the in- terest acquired by the contract to the taxing power and the police power, precisely as it might the interest acquired 8. Schneider v. Detroit, 135 143 Mich. 810. Mich. 570; Cass Farm Co., Lt. 10. Taylor v. Roniger, 1 17 v. Detroit, 139 Mich. 318. Mich. 100. 9. Morse v. Auditor General. (13) 145 THE LAW OF TAXATION 194 under any contract between two individuals, and not other- wise. Though a part paid interest is taxed as personal property, yet, if that tax is not paid, the state may issue a deed on payment of the purchase price and hold a lien upon the land for the unpaid taxes 11 . The taxation of the in- terest in a certificate of part paid swamp land was not authorized until 1858 ; and a purchaser from the state prior thereto was entitled to a patent on payment of the purchase price without paying the subsequent taxes 1 la ' Setting aside the tax sale does not necessarily set aside the lien for the tax 12 . 145. Liens for Drain Tax. A drain tax becomes a lien upon the land when the roll is delivered to the treasurer 13 . Statutory Provision. C. L. 4359 provides: "* * * All taxes levied under the provisions of this Act or of Act number two hundred and sixty-nine of the Session Laws of 1881, with all lawful costs, interest and charges, shall be and remain a perpetual lien upon the lands upon which they are assessed, and a personal claim against the owner or owners of such lands until they are paid." The holder of a void patent has a lien on the land for taxes paid. In the case of a drain tax paid, the lien is the value of the improvement and the tax paid 14 . 11. Robertson v. Land Com'r, 13. Frost v. Leatherman, 55 44 Mich. 274, 278. Mich. 33; Lindsay v. Eastwood, lla. Attorney General v. A. P. 72 Mich. 336. Cook Co., 122 Mich. 453. 14. Sherman v. A. P. Cooke 12. Walker v Detroit, 138 Co.. 98 Mich. 61. Mich. 538; see 437. COI.I.KCTION OK I.IKN FOR AND LIABILITY FOB TAX J; 146 146. Lien for Taxes Upon Personal Property. It is competent for the legislature to provide a lien upon personal property to secure or enforce the collection of the tax 15 . Statutory Provision. C. L. 3863, provides : "* * * And all personal ta^es shall also be a lien on all personal property of such persons so assessed from and after the first day of December in each year, and shall take precedence of any sale, assignment or chattel mortgage, levy or other lien, on such personal property executed or made after said first day of December, except where such property is actually sold in the regular course of i trade." These liens are statutory, and the means provided for their enforcement must be followed. There is no presump- tion as to enforcing a tax lien as to how it shall be done, except, in the absence of other provisions, there is an im- plied power to bring an action at law 16 . Under the law of 1899, a stranger to the tax took them free from the tax lien if he purchased prior to Dec. 1st 17 . Under the charter of Detroit, the lien does not attach to a chattel mortgage which was transferred before the assessment was made 11 . 15 St. Johns National Bank v. 136; Berrien Cotinty Treasurer v. Bingham Twp., 113 Mich. 203, Burberry, 45 Mich. 79, 34. holding that the lien did not 17. Tously v. Post. 91 Mich, attach to hank stock sold prior 631. to that date, and that the bank 18. Lucking v. Ballentyne. 132 was not liable therefor. In Mich. 584. construing Act 472 of Auditor General v. Lake George Local Acts of 1901. which pro- etc., Rv., 82 Mich. 426, it is held vided that "all city taxes shall he that the state may foreclose a ard remain a lien thereon until claim for specific taxes in equity. paid, and no transfer of the rrd follow the personal property personal property .>>< <-n-<] -shall upon which it was a lien. onerate to divest or destroy such 1C.. F.ncke v. Lange. 104 Mich. lien." 2fi ; Srpcrvisor v. Stimson. 4 Hill, 147 THE LAW OF TAXATION IDG 147. Enforcement of Lien on Personal Property. A statute, acting retrospectively, cannot create a lien for a tax that shall take precedence over existing liens 19 . Where goods of an insolvent have been turned over to an assignee for the benefit of creditors, the state stands in no better position than any other creditdr as to a personal tax owing from such insolvent 20 . A purchaser of bank stock, prior to Dec. 1st, takes it free from the lien for taxes; and when the bank is the purchaser prior to such date, it can- not be made to pay these taxes where it cannot reimburse itself 21 . Similarly, a bona fide purchaser of personal prop- erty prior to Dec. 1st, takes it free from a tax lien 22 ; but if purchased after Dec. 1st the lien attaches 23 . A lien once attached upon personal property continues until paid. Purchasers of such property have no right to act upon the presumption that the officers charged with the duty of collection have exhausted all of the remedies provided for such collection, and secured payment. There is no presumption that taxes have been paid any more than that other debts have been paid. The statute nowhere fixes a time for the expiration of the lien, nor within which the auditor general must act. The state cannot be deprived of its rights by the neglect of its officers where their acts are not made precedent to the creation or continuance of 19. Act 228 of Public Acts of New Orleans v. Houston, 119 1875, imposing a lien for unpaid U. S. 265. liquor tax. Finn v. Haynes, 37 22. C. L. 3840 provides: "No Mich. 63. change of location or sale of any 20. Lyon v. Harris, 52 Mich. personal property, after the first 272, holding that the charter of day of May in any one year shall Detroit, 22, Ch. 5. Sub. 64, did affect the assessment made in not intend to impose a lien upon such year. * * *" Chippewa personal property. Hardware Co. v. Atwood, 127 21. St. Johns National Bank v. Mich. 338. Bingham Twp., 113 Mich. 203; 23. Northwestern Lumber Co. Boston v. Beal, 51 Fed. R. 306; v. Scott, 123 Mich. 357, 359. 1!'7 COLLECTION OF LIEN FOR AND LIABILITY FOR TAX 148 such rights, and no time is specified within which they must act. It would be a violation of principle to hold that a public right shall be lost by mere delay or neglect of the public agents to enforce it, in the absence of any law ex- pressly limiting the time in which it may be done 84 . A lien does not attach because of an illegal purchase of a state tax bid, as where the subsequent taxes are not paid, and this state tax bid is latter regularly purchased by the owner 25 . 148. Chancery Sale. It has frequently been held that without a good and valid warrant, the treasurer has no authority to collect a tax, and that he is a trespasser if he seizes property for the purpose of making his tax. Under the laws directing the sale of property by advertisement merely, for the collection of taxes, an invalid warrant would defeat the tax title. Since the radical change in the laws by which the en- forcement of delinquent taxes is sought through the judi- cial branch of the government, the proceedings and prin- ciples involved are quite different from the old methods. The law proceeds upon the theory of the existence of a claim upon behalf of the state against the property owner for taxes which have not been paid, and cites him into court to answer a bill to enforce this claim against the property taxed. It is not a sufficient answer to show that the treasurer would have been a trespasser had he collected this tax, or that he had not demanded payment: the fact 24. Auditor General v. Lake on such personal property as had George, etc., Ry., 82 Mich. 426, been destroyed or converted, holding that a tax Hen over nine United States v. Railway Co., 118 years old could be foreclosed, and U. S. 125. that the purchasers of the personal 25. Miller v. Meilstrup, 144 property were liable for the lien Mich. 643. 1411 THE LAW OF TAXATION 198 would remain that the tax was still due and unpaid. Hence, the tax payer must show some defect wherein he is in- jured, and not a mere irregularity which does not prejudice property rights. A lack of a warrant on the roll does not prejudice the tax payer in a court of equity* 6 . 149. Warrant. A warrant properly signed may be identified from the fact of its being annexed to the proper tax roll, where it is not addressed to any particular person 27 . Statutory Provision. C. L. 3865, provides : "The supervisor shall there- upon prepare a copy of the said assessment roll, with the taxes assessed as hereinbefore provided, and annex thereto a warrant signed by him, commanding the township or city treasurer to collect the several sums mentioned in the last column of such roll and to re- tain in his hands the amounts receivable by law into the township treasury for the purposes therein speci- fied, and to pay over to the county treasurer the amounts which shall have been collected for state and county purposes up to and including the tenth day of January next following, within three days thereafter, and the remainder of the amounts therein specified for said purposes, and account in full for all moneys re- ceived on or before the first day of March next follow- ing; and the said warrant shall authorize and com- 26. Auditor General v. Spar- Lumber Co. v. Hagar, 118 Mich, row, 116 Mich. 574. 452, and Auditor General v. Stiles, 27. St. Joseph Bank v. St. 83 Mich. 460. In Westbrook v. Joseph Twp., 46 Mich. 526; the Miller, 64 Mich. 129, an unsigned warrant need not contain the and undated warrant is held to treasurer's name, Loud & Sons vitiate the tax deed. 199 COLLECTION OF LIEN FOR AND LIABILITY FOR TAX 150 mand the treasurer in case any person named in the assessment roll shall neglect or refuse to pay his tax, to levy the same by distress and sale of goods and chattels of such person. The supervisor may make a new roll and warrant in case of the loss of the one originally given to the township treasurer; the copy of the roll with the warrant annexed, shall be known as "The tax roll." The warrant may be signed and placed upon the roll after the time fixed therefor by statute 28 , or it may be placed thereon before the meeting of the board of review-" 1 . The warrant need not run in the name of the People of the State of Michigan, as the provision of the Constitu- tion in respect to process applies only to processes issued by courts of record ; but the warrant must be signed 30 . It may direct the collection of one per cent more than speci- fied in the roll, being the amount authorized to avoid frac- tions 31 . 150. Warrant. Extension of, The warrant, or proper authority, may be renewed with- in the limits provided by statute; and such renewal will be valid though not made until after a former renewal has expired. Unless the action is against the collecting officer, a clerical mistake in dating the warrant may be shown**. 28. Hubbard v. Winsor, 15 4% extra is held void under 87 Mich. 146. of Act 96 of Laws of 1844. 20. Dickison v. Reynolds, 48 32. Gratwick, etc., Lumber Co. Mich. 159. v. Oscoda. 97, Mich. 221 : Minoi 30. Tweed v. Metcalf, 4 Mich. Lumber Co. v. Alpena, 07 Mich. 579, 593; Wisner v. Davenport, 5 499. In Philips v. New Buffalo Mich. 501. Twp.. 68 Mich. 217, a renewal 31. Grand Rapids v. Wellman, under Act No. 8 of Public Acts 85 Mich. 234. In Buell v. Irwin, of 1885, was held void because 24 Mich. 145, a direction to collect made before the act took effect. 150 THE LAW OF TAXATION 200 The renewal may also be made before the old warrant ex- pires 33 . When the renewal is authorized by a city council, such authorization need not be endorsed upon the old war- rant, nor is any formal notification to the collector neces- sary 34 . The extension will not be vitiated because the records do not show that a temporary secretary qualified, the presumption being that he did 35 . The collector may make his return before the extension expires, since the ex- tension is for his benefit rather than the tac payers, who may thereafter pay their taxes at any time to the county treasurer 36 . Statutory Provisions. C. L. 3879, provides: "* * * The county treasurer shall give the township or city treasurer a statement of all the personal taxes which remain un- collected, taken from the returns of the latter, with a warrant authorizing him or his successor to collect them according to law, and thereafter such treasurer or his successor shall have the same power to collect such taxes as under the original warrant." C. L. 2847, with respect to special assessment rolls in villages, provides : "Said warrant may be renewed from time to time by the clerk, if the council shall so direct, and for such time as they shall determine, and during the time of such renewal the warrant shall have the same force, and the treasurer shall perform the same duties and make the like returns as above pro- vided." 33. Bird v. Perkins, 33 Mich. 35. St. Joseph National Bank 28. v. St. Joseph Twp.. 46 Mich. 526. 34. Griswold v. School Dist., 36. Drennan v. Beierlein, 49 24 Mich. 262. Mich. 272. 201 COLLECTION OF LIEN Ink AND UA1UI.ITY HW TAX 1 .", 1 With respect to general taxes, C. L. 2866, provides : * * * T ne president may renew said warrant from time to time, by order of the council, and for such time as the council shall direct : Provided, That the time shall not be extended later than the third Monday of October in any year." C. L. 3329 provides that the city supervisor shall deliver the roll with his warrant attached, to the city treasurer. C. L. 3219, provides a lien for special assessments in cities. C. L. 3384 provides that the county treasurer may issue new warrants to the city treasurer for the col- lection of taxes in the same manner, and in the same cases, and with Rke effect as when new warrants are issued to township treasurers. C. L. 3216 provides that the city clerk shall issue his warrant to the city treasurer to collect special assessment. C L. 3219 provides that the city clerk, on the direction of the city council, renew the warrant upon a special assessment roll, from time to time. 151. Collector. The legality of the election or appointment of a collect- ing officer cannot be inquired into by a third person as a defense for not paying a tax. It is sufficient for the col- lector to show that he is performing the functions of his office 37 . A township treasurer, when authorized by the 37. See "De facto Officers." 28; Stockle v. Silsbce. 41 Mirh. 1284. Bird v. Perkins, 33 Mich. 15. 152 THE LAW OF TAXATION 202 supervisor, may bring suit to collect a tax on personal property 38 . 152. Bond of Collector. The collector is required to give a bond to account for the monies collected by him; but this is for the protection of the public. Therefore, the time within which a bond may be given is directory 39 . The township board cannoi release the bond or sureties 40 . This bond covers all tax monies coming into the collectors hands whether or not the tax be legal. He receives such money in payment of taxes as money belonging to the public 41 . The county has a right of action against the bond of a defaulting township treasurer, for state and county monies lost; or it may pro- ceed by mandamus to compel the township to make the loss good 42 . Where a sheriff acts as a collector of taxes, his bondsmen for him as sheriff will not be liable for tax money collected by him. When the obligation on the bond is created, the parties, unless they express themselves very clearly to the contrary, must be understood as referring to the kind of duties which are fairly appropriate to the office as it then exists, distinct from others. In case some- 38. Ovid Twp. v. Haire, 133 Finn 572; Mason v. School Dist.. Mich. 353 ; Bangor Twp. v. Trans- 34 Mich. 228 ; Clark v. Freder- portation Co., 112 Mich. 601. burg. 43 Mich. 263; Marquette Co. 39. See "De facto officers." v. Ward, 50 Mich. 174, involving 2S4. Hubbard v. Winsor, 15 a liquor tax ; Cheyboygan Co. v. Mich.^146, 154; Stockle v. Silsbee, Erratt. 110 Mich. 156; Boehmer v. 41 Mich. 615; Attorney General Schuylkill Co. 46 Pa. St. 452. In v. St. Clair Supervisors, 30 Mich. Rice v. Sidney Twp., 44 Mich. 37, 388. it is held that the sareties are not 40. Otsego Lake Twp. v. bound by a false statement of Keisten, 72 Mich. 1. account ; same in Boardman Twp. 41. Berrien Co. Treasurer v. v. Flagg, 70 Mich. 372. Bunbury, 45 Mich. 79, 85; King 42. Hart v. Osceana Co., 44 v. United States, 99 U. S. 229; Mich. 417. Gwynne v. Burrell, 7 Clark & 203 COLLECTION OF LIEN FOR AND LIABILITY FOR TAX 152 thing beyond is meant to be provided for, the provision should be made so plain as to leave no reasonable grounds for the sureties to allege failure to understand it. The law will not intend that duties not yet existing and not germane to the office, were within the contemplation of the sureties or within the proper scope of their undertaking 43 . Where a bond recites that a collector is to hold office until his suc- cessor is elected and qualified, the sureties thereon are hold- ing for an incumbency during a second term where there was no reappointment 44 . The sureties will not be held upon a bond not signed by the principal. The contract is incomplete until all the parties contemplated to join in its execution affix their names to it. The law presumes tint the party signing did so upon the condition that the other obligors named in the instrument should also sign it; and their failure to comply with their agreement gives him a right to retract 46 . A surety, however, who signs a bond in blank, on a promise that other parties will sign as co- sureties, will be estopped, after the delivery of the bond, from objecting because such other parties did not sign 4 *. Failure of a municipal body to periodically examine the accounts of the treasurer, as may be required by statute, will not exonerate or release the sureties 47 . Neither will 43. White v. East Saginaw, 43 39 Mich. 187. 189; Wells v. Dill. Mich. 567, 569; Gaussen v. United 1 Mart, (La.) 592. States, 98 U. S. 584; Converse v. 46. McCormick v. Bay City, 23 United States, 21 How. 403 ; Com- Mirh. 457 ; Crystal Lake Twp. v. monwealth v. Holmes, 25 Gratt. Hill. 109 Mich. 246. 771; St. Louis v. Sickles, 51 Mo. 47. Detroit v. Webber, 26 122. Mich. 284 ; United States v. Kirk- 44. Laurium Village v. Mills, patrick, 9 Wheat. 720; Dox v. 129 Mich. 536; Grand Haven v. Postmaster General. 1 Peters. Guaranty Co., 128 Mich. 108; 317; State v. Atherton. 40 Mo. Paw Paw Twp. v. Eggleston, 25 29 ; F.x parte Christian, 23 Ark. Mich. 36; Porter v. Stanley, 47 641; Detroit v. Weber, 29 Mich. Me. 515. 24. 45. Johnson v. Kimhall Twp., 153 THE LAW OF TAXATION 204 the sureties be released because a council neglcts to formally approve a bond. To permit such a defense is against pub- lic policy. Moreover, a bond not required by the statute to be given, if given voluntarily, is valid 48 . 153. Liability of Collectors. Where the collector fails to collect the tax from a per- son having known property subject to levy, but makes a return of nulla bow, he will become liable to a person in- jured thereby, as a lien holder upon real estate, who is obliged to pay such tax to protect his lien. The principle involved is, that a public office having ministerial duties to perform, in which a private individual has a special and direct interest, is liable to such individual for any injury sustained by him in consequence of the failure to perform such duties. It is immaterial that the duty is one pri- marily imposed on public grounds and therefore a duty primarily owing to the public; the right of action springs from the fact that the private individual receives a special and peculiar injury from the neglect in performance, which it is the purpose of the law to protect him against. It is immaterial that a failure to comply with the law is made a penal offense 49 . When lands are assessed as non-resident, and the tax is not paid, it is the collector's duty to return such lands, as he has no jurisdiction to levy 50 . The col- lector is liable for the monies he collects, but is not guilty 48. Evart v. Postal, S6 Mich. 21 Mass. 392; Bolton v. William- 325. In O'Marrow v. Port Huron, son, 1 Brev. 181. In Raynesford 47 Mich. 535, a virtual refusal to v. Phelps, 49 Mich. 315, it is held accept a bond is held to release that the collector can show in the sureties. defense that the tax was void 49. Raynesford v. Phelps, 43 and the resulting tax title of no Mich. 342 ; Amy v. Supervisors, effect. 11 Wall. 136; Tracy v. Swarthout, 50. Tweed v. Metcalf, 4 Mich. 10 Peters. 80; Brown v. Lester, 579. 205 COLLECTION <>! I.IKN FOR AND l.IAIUUTY FOR TAX 1 .M of embezzlement because the bank fails in which he had deposited the money 01 . The loss of public money by theft, robbery or otherwise, is the loss of the treasurer; and it is beyond the power of the legislature to provide for his reimbursement 52 . Upon the default of the township treas- urer, a statute providing that the county treasurer should issue his warrant against such delinquent collector, and deliver the same to the sheriff for collection, is held not to apply to a defaulting ward collector 88 . The warrant upon the tax roll, if fair upon its face, pro- tects the collector against any personal liability because of its enforcement 54 , unless he levies for a tax upon property not subject to general taxation and improperly upon the roll 55 ; as a tax levied under a void law, since the collector is bound to know the law 58 . The tax roll is itself as com- plete and adequate as an execution on a judgment would be, if there are goods and chattels within the collector's jurisdiction 57 . The collecting officer will be held liable for defects appearing upon the face of the warrant 58 . 154. Liability for Tax. It is the duty of the tenant for life to pay the taxes 5 *. 51. People v. Wadsworth, 63 57 Staley v. Columbus Twp.. Mich. 500. 36 Mich. 38. 52. Bristol v. Johnson, 34 58. Atwell v. Zeliff, 26 Mich. Mich. 123. 118. 53. James v. Howard, 4 Mich. 59. Smith v. Blindbury, 65 446. construing 62, p. 148 of laws Mich. 319, 323; Jones v. Wright, of 1853. 34 Mich. 371; Rea v. Rea. 6H 54. See Replevin and Trover. Mich. 257, 268; Jenks v. Horton, Bird v. Perkins, 33 Mich. 28; 96 Mich. 13; jeffcrs v. Sydham, Moses v. Cummings, 44 Mich. 129 Mich. 440; Defreese v. Lake, 359; Byles v. Genung, 52 Mich. 109 Mich. 415; Patrick v. Sher- 504; Curtiss v. Witt, 110 Mich. wood. 4 Blatchf. 112; Fleet v. 131; Wood v. Thomas, 38 Mich. Dorlard. 11 How. Pr. 480; 686. Kearney v. Kearney. 17 \. T. Kn. 55. Leroy v. East Saginaw, 18 504; Wilson v. Edmunds. :.' N* Mich. 233. H. 517. See "Lew" 163. post. 56. Mogg v. Hall, 83 Mich. 576. 154 THE LAW OF TAXATION 206 Statutory Provisions. C. L. 2841 provides that special assessments in villages shall, from the date of their confirmation, con- stitute a lien upon the respective lots or parcels of land assessed, and shall be a charge against the persons assessed until paid. C. L. 2859 provides that the village assessor shall make his roll, except as otherwise directed, in the same manner as directed by the general laws of the state. C L. 3207 provides for a lien for special taxes in cities, and the person assessed liable until the tax is paid. C. L. 3318 makes the assessment and liability for general taxes in cities the same as in townships. C. L. 3863 provides that taxes shall at once become a debt to the township, ward or city from all persons to whom they are assessed, and shall become a lien on the property on the first day of December. C. L. 3867 provides that a tenant of lands shall be liable for the tax, after the delivery of the roll to the collector, but not for more of the tax than the rental would amount to after the roll is in the col- lector's hands. C. L. 4359 provides that drain taxes, with all law- ful costs, interest and charges, shall remain a per- petual lien upon the lands upon which they are as- sessed, and a personal claim against the owner or owners of such lands until they are paid. A purchaser of a half interest in timber lands is liable for half of the tax thereafter assessed 60 . One who sells 60. Thompson v. Ward, 108 Mich. 26. 207 COLLECTION OF LIEN FOR AND LIABILITY FOR TAX 154 timber, to be delivered after it is sawed and paid for, is liable for the tax thereon 61 . Where a vendee was to pay all taxes "assessed" on certain timber lands, except such as had been assessed after the timber had been removed or released, the term "assessed" is held to include all of the steps necessary to be taken, including the action of the board of supervisors. The mere listing of the land by the supervisor is not a completed assessment 82 . An executor is personally liable for a tax on property in his hands, and suit may be brought against him though he has distributed the estate' 3 . A receiver cannot give unpaid taxes a preference over creditors; and an agreement with a municipality to forbear collection of taxes is a considera- tion to support a promise of their full payment later, and enforceable 84 . A conveyance of land to a non-resident for the sole purpose of assessment, is a fraud; and the col- lector can levy on the goods of the real owner 85 . An as- sessment of personal property to the agent having the con- trol thereof, makes such agent personally liable for the tax; and property of the principal cannot be seized to pay it 66 . An agreement prior to 1891 that a mortgagor should pay all taxes assessed on the land mortgaged, does not bind him, as between himself and the mortgagee, to pay the taxes assessed upon the mortgage under the law of 1891 87 . But where the mortgage contains a covenant to pay all taxes assessed upon the mortgage or the debt secured thereby, the mortgagor is liable for the personal 61. Grand Rapids Bark, etc, 113 Mich. 478. Co. v. Inland Twp. 136 Mich. Ml. fi.v Loud & Sons Lumber Co. 62. Rothschild v. Begole, 105 v. Fltner Twp.. 123 Mich. 61. Mich 388. r,fi. Pioneer Fuel Co. v. M alloy. 63 Orion Twp. v. Ax ford, 112 KM Mich. 466. Mich. 179. -.:. Fuller v. Kane. 110 Mich. 64. Union Trust Co. v. Mahly, 540. 155 THE LAW OF TAXATION 208 tax assessed upon the mortgage debt. Such a contract is not usurious unless the parties knew that the interest pro- vided in the mortgage, with the tax, would exceed the maximum legal rate. In any event, the mortgagor will not be obliged to pay more than the maximum rate provided by statute 68 . Land contracts and mortgages, i.eing an in- terest in real estate, though owned by non-residents of the state, are subject to the inheritance tax 69 . Under the charter of the City of Detroit, the tax becomes a personal charge on April 2nd of each year 70 . But when a tax h not a. personal charge when assessed, it cannot thereafter be so made by the legislature 71 . 155. Payment. Payment of a tax can only be made in legal tender. Taxes are due to the public and not to the tax collector individually, and claims against him are not a legal tender for, or an off-set against such taxes 72 . A note taken for a tax is void as against public policy 73 . Therefore, the giv- ing of a note for a tax will not support a statutory protest made at the time though the note be afterwards paid. The money must be actually paid at the time the protest is made. If any other rule should be adopted, then the treasurer might take the note of each person appearing upon his tax 68. Green v. Grant, 134 Mich. 71. Detroit v. Patten, 143 462. Mich. 243. 69. Gd. Rapids v. L. S. & M. S. 72. Elliott v. Miller, 8 Mich. R., 130 Mich. 238. In Union Trust 132 ; People v. Seeley, 117 Mich. Co. v. Grant, 148 Mich. 501, it is 263. held that the time specified for 73. Doran v. Phillips, 47 Mich, declaring a mortgage due for 228. In Hatch v. Ried, 112 Mich, default in paying taxes does not 430, it is held that the note in the begin to run until the mortgagee hands of the treasurer is good has paid the tax. when the treasurer actually 70. In re Stanton Est., 142 advanced the money to pay the Mich. 491. liquor tax. 209 COLLECTION OF LIEN FOR AND LIABILITY HiR TAX ji 1 .'..*, roll, payable at a time beyond the life of the roll, and the only remedy the township would have would l>e an action upon these notes, or look to the bond of the township treasurer. The giving of a note cannot release the party from his tax, and, although a note is given, the public- would have the right to the enforcement of the collection of the tax, by a levy and sale under the terms of the war- rant attached to the roll, at any time within the life of the warrant. The collector has no power to exempt the party from its payment, and all persons are bound at their peril to know the power and authority of such a public officer 74 . If a land owner, in good faith, applies to the proper officer for the purpose of paying his taxes, and is prevented by the mistake, wrong or fault of the officer, such attempt to pay is equivalent to payment 75 . While a collecting officer is not bound to accept anything but the money, yet, if he should accept a draft or check, the land owner cannot com- plain. The cashing of the paper will make the payment relate back to the time the draft or check was delivered 76 . As between the party paying and the collecting officer, a 74. Turnbull v. Alpena Twp., Maneka, 126 Mich. 550. In Gray 74 Mich. 621, 626; sec. 158, v. Detroit, 113 Mich. 657, it is Chapman v. Remington, 80 Mich. held not to be within the scope of 552 ; such a note is good in the power of the Detroit City treas- hands of an innocent purchaser. urer to issue tax statements, and 75. Kneeland v. Wood, 117 that an erroneous statement by Mich. 174 ; Kneeland v. Auditor him does not relieve the tax General, 113 Mich. 63; Breisch payer, or avoid a sale for taxes. v. Coxe, 81 Pa. St. 336; Gould v. In Kent v. Auditor General. 138 Sullivan, 84 Wis. 659 ; Edwards v. Mich. 605, the local treasurer Upham, 93 Wis. 455 ; Loomis v. applied the money sent him on the Pingree. 43 Me. 299 ; Forest v. wrong description of land. Henry, 33 Minn. 434 ; Kinsworth 76. Act No. 228, Laws of 1899 : v. Austin, 23 Ark. 375; Hand Hubbard v. Auditor General. 120 v. Auditor General, 112 Mich. Mich. 505 ; Estabrook v. Prit- 597; Houghton v. Auditor Gen- chard, 19 Mich. 470; Mich. eral. 116 Mich. 663; Mann v. Car- Sanitarium, etc. v. Battle Creek. son, 120 Mich. 631 ; Carpenter v. 138 Mich. 676. Jones, 117 Mich. 91 ; Northup v. (H) S 155 THE LAW OF TAXATION 210 check or draft or note is not a payment until the money i:- realized. A tax collector has no authority to receive any- thing in payment of taxes but such money as at the time is legal tender, or at least passes current. A bank check i only a conditional payment, and the tax will remain in force if the check is dishonored 77 . A deposit, or draft, not specifying the lands to be redeemed or bid in, is not a pay- ment 78 . A payment of a tax in void township orders, which the collector accepts and which are allowed as cash by the township board on a settlement with the collector, discharges the tax; and the township cannot thereafter maintain a suit against the tax payer 79 . A payment takes effect from the time it is received by the collecting officer, and not from the time it may have been mailed at a post office 80 . One whose duty it is to pay taxes cannot obtain a tax title separate and distinct from the original title. Such a purchase is only one method of paying taxes and performing the duty owed to the state 81 . Where the owner of lands sends the amount of taxes due to the township treasurer, who by mistake applies the money to the pay- ment of taxes in which the owner has no interest, the sale of the owners land will be cancelled and the tax dis- charged 82 . A tax payer has no right to pay his tax in 77. Moore v. Auditor General, a contractor interested in that 122 Mich. 509, 603, quoting from fund to which the payment would Judge Cooley; Kahl v. Love, 37 go if the tax was legal. N. J. Law 5; Alkan v. Bean, 8 78. Paine v. Boynton, 124 Biss. 83; Koones v. Dist. of Mich. 194. Columbia, 4 Mackey, 339. In Geb- 79. Staley v. Columbus Twp., hardt v. East Saginaw, 40 Mich. 36 Mich. 88. 336, a check deposited with the 80. Paine v. Bpynton, 124 treasurer to abide the event of a Mich. 194. suit to test the legality of taxes, 81. Clippinger v. Auditor Gen- is held only a conditional payment eral, 135 .Mich. 1. at the most, and on the taxes . 82. Kent v. Auditor General, being set aside the treasurer has 138 Mich. 605, holding that C. L. no right to cash the same to pay 3921, does not apply. 211 COLLECTION OF LIEN FOR AND LIABILITY FOR TAX 155 installments, but he may pay the portion which he deems valid, receiving a receipt therefor, and contest the remain- der. The same steps would be taken to collect the remain- der as though more had been paid 83 . A purchase of state tax land by the owner of the original title is in effect *a payment and redemption of the tax. The original owner has the right to become a purchaser, and therefore, in effect, the right to redeem under these circumstances, though this right to redeem from the original sale to the state had expired and only, by this re-offering for sale, again comes into existence. Where, in such a case, the selling officer does not inform such owner and purchaser of the existence of prior unpaid taxes, which it is his duty to do, and the deed issued is void because of the non-payment of such prior taxes, the purchase by such owner will not be with- out effect, but will be deemed a payment and redemption of the tax on his land for which the land was offered for sale; and the failure of such selling officer to inform him of such prior taxes will have the effect of a payment so far as cancelling a sale for such prior taxes made subsequently to such owner's purchase or payment 84 . Where the local treasurer applies money sent to pay a particular tax to a different tax, and the land such money was sent to pay the taxes on is returned and sold, the court will order a can- cellation of the deed without requiring the owner to again pay the tax 86 . When, however, an owner pays upon a wrong description of land, which he supposes is his own. and which mistake would have appeared had he examined 83. Chapin Mining Co. v. era]. 138 Mich. 689, 691. Uddenburg, 126 Mich. 375. C. L. 85. Kent v. Auditor General, 13876. 138 Mich. 605. M. Hoffman v. Auditor Gen- 156 THE LAW OF TAXATION 212 the records, such an erroneous payment will be deemed voluntary and cannot be recovered 86 . 156. Certificates, Etc., As Payment. The court will treat a certificate of payment of taxes, or a certificate that no taxes are due, or returned, given by an officer acting within the scope of his power, as a pay- ment for the purpose of cancelling a tax sale, even though the tax, in fact, may not have been paid. As a general rule, such a certificate, while sufficient to cancel the tax sale, leaves the owner to pay the tax, if it is still unpaid, with interest to the date of the certificate. As broadly stated, the rule is that if a land owner in good faith, ap- plies to the proper officer for the purpose of paying his tax, and is prevented by the mistake, fraud, wrong, or fault of the officer, such attempt to pay is equivalent to payment 87 . The wrong information may be given by let- ter 88 ; or it may be given verbally by the collector or treas- urer 89 . Such a certificate, to be available, must be made before the sale for taxes, and while there exists a right of payment to the officer making it. A certificate of the county treasurer will not apply to taxes which have been returned to the auditor general and the land bid in to the state, though such sale be set aside, if for reasons not affecting the validity of the taxes 90 . A certificate that taxes are 86. Bateson v. Detroit, 143 112 Mich. 597; Kneeland v. Mich. 582. Hyman, 118 Mich. 56. 87. Kneeland v. Wood, 117 89. Hoffman v. Auditor Gen- Mich. 174, 176; Hoffman v. eral, 136 Mich. 689; Hough v. Auditor General, 136 Mich. 689, Auditor General, 116 Mich. 663; 692 ; Hayward v. O'Connor, 142 Kneeland v. Wood, 117 Mich. 174. Mich. 230; Wood v. Bigelow, 90. Shulte v. Auditor General, 115 Mich. 123, where the tax had 131 Mich. 676; holding that the been paid and the land erroneous- right to pay under "58. 59, ly returned. ceased on the original sale to the 88. Hand v. Auditor General, state. :.M: COLLECTION OF LJEN FOR AND LIABILITY FOR TAX 156 paid relates only to such instruments or records as arc properly kept by the officer making the certificate 91 , and a certificate made by a county treasurer, purporting to relate to records in the office of the auditor general, is without force, and will not affect the sum to be paid on a redemp- tion of the land 92 . The certificate required to be furnished by the county treasurer, for the purpose of registering deeds, certifying that there are no unpaid taxes, or tax liens, on the premises, is not such a certificate as is con- templated by 70 and 98 of the tax law, and will not avoid a sale where the land had been bid in to the state. Moreover, erroneous information given by the county treas- urer to a land owner seeking to avoid a tax, not to pay it, will not afford grounds for setting aside a tax sale 93 . A certificate of the city treasurer of Detroit as to the amount due the city on lands bid in to the city is not a certificate that he is bound to make, and will not protect a subsequent mortgagee from having to pay a larger sum 94 . Where a tax for one year was ordered reassessed the next year, and then the first levy was returned delinquent and the land sold, the owner was held entitled to rely upon the assump- tion that the second levy would be enforced, and have the sale based upon the first levy set aside. 98 . After notice of tax purchase, a bona fide payment to the register of the court within the six months, will protect the owner against the loss of his property, where the auditor general had deeded the same land twice by mistake, though payment 91. Van Husan v. Heames, 98 142 Mich. 122; Wclevcr v. Auditor Mich. 504. General, 143 Mich. 311. 92. Shulte v. Auditor General, 94. Gray v. Detroit, 113 Mich. 131 Mich. 676; Blondin v. Griffin, 657. 133 Mich. 647. 95. Youngs v. Auditor Gen- 93. Bullock v. Auditor General. eral, 118 Mich. 550. 156 THE LAW OF TAXATION was made to the holder of the void tax deed. In such a case, however, the owner will be obliged to pay to the holder of the legal tax deed the purchase price and the penalties 96 . 157. Payment. Voluntary. Statutory Provision. Act No. 8 of Public Acts of 1909, amending 98a, of the Tax laws, provides : "When taxes have been actually paid to the officer authorized by the provisions of this act to receive the same, and the entry of such payment was not made upon the tax roll, the person thereafter applying for a certifi- cate of error or a cancellation of the taxes shall present to the auditor general the certificate of the proper county treasurer that such taxes were paid on the day of (giving date,) as appears from copy or receipt therefor on file in his office. The county treasurer shall make a certified copy of receipts so presented to him and file the same in his office, and shall return to the person entitled thereto the original receipt. It shall be the duty of the county treasurer to immediately notify the person or officer receiving such payment of the pro- duction of such receipt and require payment to be made forthwith to him, the said county treasurer, of the amount not discharged by entry upon the tax roll at the time of payment. And in case of failure of said delinquent treasurer to pay said amount, as requested, within thirty days of the receipt of said notice, it shall be the duty of the county treasurer so notifying to in- stitute suit against delinquent treasurer and his bonds- 96. Miller v. Steele, 146 Mich. 123. 215 COLLECTION OF LIEN FOR AND LIABILITY FOR TAX 157 men for the recovery of said amount. Upon the receipt of such money so paid to him, the county treasurer shall at once pay the same over to the proper township or other officer or fund entitled to the same, and shall notify the board of supervisors at their annual sessi' .n in October of the several amounts thus collected and paid over." Where a payment of the tax is made upon the demand of the collector, but the payor knows at the time of pay- ment that the collector could not sell property for this tax, and did not intend so to do, the payment is voluntary. Even though the tax was void, it would not be a payment made under coercion 87 . When the parties do not stand upon an equal footing, as where one person has the goods of another and refuses to deliver them except upon the payment of an illegal exaction, or where the payment is made to release personal property from seizure, actual or threatened, when the person making the threat has the present ability to make his threat good, or when a sale of the real estate assessed would constitute a cloud upon the title, the payment is not voluntary. When, however, no property is held by the party making the demand, and no seizure is made or threatened, and there is no way of com- pelling payment except by the sale of the property assessed, which, if carried out could injure no one but the purchaser, the payment is voluntary. This rule has been carried so far as to hold that a payment of taxes assessed under an unconstitutional law, is voluntary, upon the principle that every person is presumed to know a void law, and conse- 97. Cox v. Welcher, 68 Mich. 263. S 157 THE LAW OF TAXATION 216 quently to know that payment could not be enforced. Un- der these circumstances, a protest has no effect 98 . Unless there is immediate pressure, or the tax has become a lien upon the land, a payment, though made under protest, will be deemed voluntary unless expressly authorized by statute. Where property is not assessed to the real owner, his property, in the absence of any estoppel, cannot be levied upon ; and the owner will not be deemed under pres- sure to pay the tax in the absence of an actual levy". In cases where the property of a stranger is seized for the tax of another, any payment made before the actual taking possession o'f the property will be deemed voluntary, even though an actual levy has been made and the property is in the constructive possession of the collecting officer. The act of the collecting officer is ultra vires, and the remedy of the owner is replevin. The distinction between voluntary and involuntary payment in such cases seems to be the im- mediate and urgent necessity for the payment, which neces- sity will not be deemed to exist unless the officer is in actual possession of the property and there is not ample time in which to bring replevin 1 . Where an unfounded or illegal demand is made upon a person, and the law furnishes him adequate protection against it, or gives him an adequate 98. Minor Lumber Co. v. The City, 2 Sandf. 475; Lott v. Alpena, 97 Mich. 499, 501. In Sweezy, 29 Barb. 87 ; Union Bank Detroit v. Martin, 34 Mich. 170, v. New York, 51 Barb. 159; 174, it is held that a tax void on Preston v. Boston, 12 Pick. 13 ; its face, does not create a cloud Lee v. Inhabitants, etc., 13 Gray, on title, nor would a sale of the 479. land therefor ; and that a pay- 99. Curry v. Tawas Twp., 81 ment of such a tax under threat- Mich. 355. ened levy is voluntary. Whitney 1. Betts v. Reading, 93 Mich, v. Port Huron, 88 Mich. 270 ; 77 ; neither can a liquor tax paid Sheldon v. School Dist., 24 Conn, under a void ordinance be deemed 91 ; Bulkley v. Stewart, 1 Day voluntary. Eslow v. Albion, 153 (Conn.) 133; Forest v. Mayor, Mich. 720. etc., 13 Abbott 351; Fleetwood v. ,' 1 ; COLLECTION OF LIEN FOR AM) LIABILITY FOR TAX ? 1 "M remedy in the premises, if he pay what is demanded, in- stead of taking the protection the law gives him or the remedy it furnishes, he is to be deemed to have made the payment voluntarily, and he must abide by it. There is a class of cases where, although there be a legal remedy, his situation, or the situation of his property, is such that the legal remedy would not be adequate to protect him from irreparable prejudice, where the circumstances and the necessity to protect himself or his property otherwise than by resort to legal remedy may operate as a stress or coercion upon him to comply with the illegal demand. In such cases his act will be deemed to have been done under legal duress, and not of his free will 2 . Any payment of taxes to the county treasurer will be deemed voluntary, since he has no power to levy*. A payment of tax upon the wrong piece of land, not assessed to such payor, made through the erroneous or fraudulent misrepresentations of the collector, may be recovered 4 ; but when the party paying makes the 2. Louden v. East Saginaw. is held that, "If the demand is 41 Mich. 18. 23; Baker v. Big illegal and the party can save Rapids, 65 Mich. 76; Babcock v. himself and his property no other Beaver Creek Twp., 65 Mich. 479. way. he may pay under protest In Loud & Sons Lumber Co. v. and recover it back; but if other Vienna Twp., 120 Mich. 382, the means are open to him by which collector levied upon personal he may prevent the sale of his property and offered it for sale. property, if a day in court is The owners agent bid in the accorded to him, he must resort property, and sent the collector to such means. Thus, the seizure into another township to the of a man's goods under a land- owner, to get his pay. Held, that lord's warrant for rent that is not this was a voluntary payment, and due. or for more than is due, that no protest would be good in would seem to be duress as much such case unless the reasons were as the seizure of property for assigned. taxes; yet. if the unlawful 3. Canfield Lumber Co. v. demand for rent be paid under Manistee Twp.. 100 Mich. 4M, protest, it cannot be recovered 468, 472. back, for the reasons above stated. 4. De Graff v. Ramsey Co., 46 that the tenant can replevin the Minn. 319. 320. In De La Cuenta goods, and try the issue of no v. Ins. Co., 136 Pa. St. Z, 30, It rent in arrear before a jury." In 158 THE LAW OF TAXATION 218 mistake, alone, the payment will be deemed voluntary and cannot be recovered 6 . A liquor tax paid before the appro- val of the bond, cannot be recovered back even though the party does not engage in business; and all persons who would authorize such payment would be personally liable to the municipality 6 . Neither can a liquor tax, paid under threat of prosecution, be recovered back, though the ordi- nance under which it was levied was void 7 . 158. Payment. Involuntary. A demand of payment by an officer having a warrant involves an implication that payment will be enforced if not made ; and the authorities do not require an actual levy, Knibbs v. Hall, 1 Esp. 84, it is held that a threat of distress for rent is not duress because the party may replevin the goods dis- trained, and try the question of liability at law. In Mfg. Co. V. Amesbury, 17 Mass. 461, and in Preston v. Boston, 12 Pick- 14, it is held that when a party not liable to taxation is called upon peremptorily to pay upon a tax warrant, and he can save himself and his property in no other way than by paying the illegal demand, he may give notice and, by show- ing that he is not liable, recover it back as money had and re- ceived. In Glass Co. v. Boston, 4 Mete. 181, 187, the rule is stated as follows : "If a party, with full knowledge of all of the facts of the case, voluntarily pays money in satisfaction or discharge of a demand unjustly made on him, he cannot afterwards allege such payment to have been made on compulsion, and recover back the money, even though he should protest at the time of such pay- ment that he was not legally bound to pay the same. The reason of the rule, and its pro- priety, are quite obvious when applied to cases of payment upon a mere demand for money, un- accompanied by any powers or authority to enforce such demand except by a suit at law." In Chicago v. Bank, 11 111. App. 165, it is held that the fact that the collector's warrant under the statute, was a lien upon the prop- erty taxed, does not constitute duress or its equivalent. In Merrill v. Austin, 53 Cal. 379, payment is held voluntary because the collector was not then in a position to enforce collection by a sale of plaintiff's property. 5. Weston v. Luce Co., 102 Mich. 528; but there is a con- trary holding in State v. Nelson, 41 Minn. 25, which the Michigan Court refuses to follow. 6. Kent v. Auditor General, 138 Mich. 605. 7. Bateson v. Detroit 143 Mich. 582; Bateson v. Phelps, 145 Mich. 805. 219 COLLECTION OF LIEN FOR AND LIABILITY FOR TAX 158 or require proof that a levy could be made on tangible property. If a party yields to the legal menace, it cannot be presumed, in favor of the exactor of payment, that there were no means of enforcement. A payment under such circumstances is involuntary; and in an action to recover the tax the party will not be limited to the reasons speci- fied in his protest 8 , nor to thirty days in which to bring suit*. There must, however, be compulsion, actual, present and potential, in inducing the payment by force of process available for instant seizure of person or property 10 . The payment is not rendered voluntary because the owner points out the property upon which to levy 11 . In an action against the municipality to recover money paid under pro- test, it will be presumed, in the absence of proof to the contrary, that the money was paid over to the treasurer. In cases of special assessments, excepting drain taxes, the municipality will be liable the same as for general taxes 13 . Where an extension of time is granted a tax payer, under 8. See Voluntary payment. City v. Packet Co., 45 la. 185. In Babcock v. Beaver Creek Twp., Mays v. Gncinnati, 1 Ohio St. 84 Mich. 601 ; Lyons v. Harris, 5* 268, it is held that to make tae Mich. 272. In First National payment of an illegal demand in- Bank v. Watkins, 21 Mich. 483. voluntary, it must be made to 489, an officer collecting a void appear that it was made to release specific tax under threat of levy the person or property of the is held liable Jn assumpsit. The party from detention, or to pre- payment of the money over to vent a seizure of either by the the state did not exonerate him. other party, having apparent Nicodemus v. East Saginaw, 25 authority to do so. Mich. 456; Woodmere Ass'n. v. 11. Roedel v. White Goud, Spring Wells Twp., 130 Mich. 108 Mich. 506; Barnhard v. White 466. Cloud, 108 Mich 508. 9. Pere Marquette Ry. v. Lud- 12. Nicodemus v. East Sag- ington, 133 Mich. 397. inaw, 25 Mich. 456; Grand Rapids 10. Harvey v. Bank. 119 Pa. v. Blakely, 40 Mich. 367. holding St. 212; Canfield Lumber Co. r. that interest is recoverable ; Grand Manistee Twp., 100 Mich. 468, Rapids v. Leonard, 40 Mich. 370: 471 ; Glass Co. v. Boston, 4 Mete. Gebhart v. East Saginaw, 40 181. 187; Wanbaunsee Co. v. Mich. 338. Walker, 8 Kans. 431 ; Mttscatine 159 THE LAW OF TAXATION 220 a provision to pay them, some courts hold that such exten- sion is a good consideration to enforce the payment of the tax, though it be illegal 13 ; but when the right to protest is reserved, the party so obtaining the extension, does not lose his right to contest the payment of the tax 14 . The Court does not recognize any distinction between taxes "volun- tarily paid under protest," and taxes "paid under duress of levy." In either case, the payment cannot be recovered for mere irregularities, but the tax itself must be illegal and void. The township will not be liable for illegal fees collected and retained by its collecting officer 15 . 159. Common Law Protests. When an officer demands a sum of money under a war- rant directing him to enforce it, the party of whom he demands it may fairly assume that, if he seeks to act under the process at all, he will make it effectual. The demand itself is equivalent to the service of a writ on the person. Any payment is to be regarded as involuntary which is made under a claim involving the use of force as an alter- native, as the party of whom it is demanded cannot be com- pelled or expected to await actual force, and cannot be held to expect that an officer will desist after once making a demand 18 . This is particularly true when the property is advertised for sale. The tax payer has a right to presume that the collecting officer will proceed with the sale. The fact that the sale would have conveyed no title on account 13. Cachet v. McCall, 50 Ala. 16. Atwell v. Zeliff, 26 Mich. 307. 118; First National Bank v. 14. Battle Creek Sanitarium Watkins, 21 Mich. 483; Thomp- etc. v. Battle Creek, 138 Mich, son v. Detroit, 114 Mich. 502, 507 ; 676. Nicodemus v. East Saginaw, 25 15. Godkin v. Doyle Twp., 143 Mich. 456. Mich. 236. 221 COLLECTION OF LIEN FOR AND LIABILITY FOR TAX 160 of the illegality of the tax, or that the cloud upon title caused by such sale could be removed by legal proceed- ings, has no bearing upon the right to pay under protest and thereby stop the sale. Nor is it any the less an involun- tary payment under the law. If the citizens 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 under protest, and such payment will not be con- sidered voluntary 17 . The protest specified need not specify the reasons for the illegality of the tax, but information, generally, that the tax payer considers the tax illegal and that he pays them unwillingly, is sufficient. The statutory protest did not originally apply to a tax on personal prop- erty so that the only protest there available was the com- mon law protest 18 . The statute has since been amended to include it. 160. Statutory Protest. Most, if not all, city and village charters, provide that before bringing suit against the municipality, a claim should be presented to the council, who should have a reasonable 17. Whitney v. Port Huron, 88 cause the tax payer has no Mich. 270. This question was dis- remedy by injunction to prevent cussed but not decided in 21 Mich. the sale ; but in Nicodemus v. 483, supra. The statement in De- East Saginaw, 25 Mich. 458. it is troit v. Martin, 34 Mich. 170, that held that the Michigan authorities where a sale of real estate do not compel the remedy by in- assessed would not constitute a junction. cloud upon title, the payment 18. In Lyons v. Harris, 52 made to relieve it of the tax Mich. 272, the collector demanded would be voluntary, is a dictum, the tax and threatened to levy, and contrary to the above cases. The law then in force. H. S. p. In Weston v. Luce Co., 102 Mich. 1277, 9 42, did not apply to per- 533. the question was not decided. sonal property. Babcock v. Beaver In Insurance Co. v. Allegheny. Creek Twp.. 64 Mich. 601 ; Bab- 101 Pa. St. 2.*ifi. a payment to rork v. Beaver Creek Twp.. 65 prevent sale is held vountary be- Mich. 479. 160 THE LAW OF TAXATION 222 opportunity to investigate the same. This provision ap- plies to money paid for taxes under protest, and is a con- dition precedent to bringing suit 19 . Statutory Provision. C. L. 3876, as amended by Act 130 of the Public Acts of 1901, is as follows : "Any one may pay the taxes, or any one of the several taxes, on any par- cel or descriptio'n of land, or on any undivided share thereof, and the treasurer shall note across the face of the receipt in ink any portion of the taxes remaining unpaid. He may pay any tax, whether levied on per- sonal or real property, under protest, to the treasurer, specifying at the time in writing, signed by him, the grounds of such protest, and such treasurer shall minute the fact of such protest on the tax roll and in the receipt given. The person paying under such protest may, within thirty days and. not afterwards, sue the township for the amount paid, and recover, if the tax is shown to be illegal for the reason shown in such protest." In an action brought to recover taxes paid under the statutory protest, the assessment cannot be shown to be invalid for any reasons not specified in the protest 20 . Where money is paid before the collector 19. Crittenden v. Mt. Clemens, inaw, 41 Mich. 18. 86 Mich. 221, 227. In Babcock v. 20. Aurora Iron Mining Co. v. Beaver Creek Twp., 64 Mich. 601, Ironwood, 119 Mich. 325; Pen- where property is actually seized insular Iron Co. v. Crystal Falls upon a levy, and a protest filed, Twp., 60 Mich. 510 ; Peninsular the tax payer is not limited to the Iron Co. v. Crystal Falls Twp., 80 reasons specified in his protest Mich. 79 ; any protest before the 'filed, for contesting the levy 5 officer can levy, must be the Mead v. Lansing, 56 Mich. 601; statutory protest, and specific. Detroit v. Mich. Paving Co., 58 Mills v. Richland Twp., 72 Mich. Mich. 601 ; Louden v. East Sag- 100. 223 COLLECTION OF LIEN FOR AND LIABILITY FOR TAX 160 can levy to satisfy the tax, the protest must be specific and distinctly set forth the reasons why the tax is illegal. A general protest is of no avail under such cir- cumsta*nces 21 . In other words, where there is no threat or demand of payment, a specific statutory protest gives a right of action when the payment might otherwise be volun- tary 22 . The statutory protest is available only when the tax itself is illegal, and for the specific reasons specified therein. This protest, consequently, is not available whert the tax is valid, but the collector levies upon the property of a stranger to satisfy the tax. In such case, the aggrieved party is left to his common law remedies ; he cannot pay the tax to the collector under protest and recover it back 23 . The statutory protest, moreover, does not apply to a drain special assessment because the municipality is not liable for the drain tax 24 . It did not originally apply to taxes upon per- sonal property; but the statute as now amended applies to taxes upon both real and personal property 25 . The statutory protest does not apply to taxes paid to the county treasurer. This officer cannot enforce the tax by levy, and such a payment to him is voluntary 26 . The statutory pro- test may be made in the case of drain taxes at any time when the tax can be paid; and where it is impossible to 21. Louden v. East Saginaw, Twp., 72 Mich. 100; Gage v. 41 Mich. 18 ; Peninsular Iron Co. Saginaw, 128 Mich. 682. v. Crystal Falls Twp., 60 Mich. 79 23. Canfield Lumber Co. v. and 510 ; McFarlan v. Cedar Creek Manistee Twp., 100 Mich. 466~. Twp., 93 Mich. 558. In Mich. 467. Land Co. v. Republic Twp.. 6!> 24. Atwell v. Zeliff, 26 Mich. Mich. 628, it is held that the pro- 118. test could accompany the draft 25. Lyons v. Receiver of which paid the taxes, and could Taxes, 52 Mich. 271; Weston v. be proven by copy. Luce Co., 102 Mich. 528. 22. White v. Millbrook Twp., 26. Weston v. Luce Co.. 10S 60 Mich. 532 ; Cox v. Welcher, 68 Mich. 528. Mich. 263; Mills v. Richland 161 THE LAW OF TAXATION 224 operate the legal from the illegal tax, the entire sum paid may be recovered 27 . The right to sue in these cases is not limited to the owner who pays under protest; but the person owning the land may assign his right of action to a third person, who may bring the action. This statute does not interfere with, or limit, the operation of the general statute regulating the assignment of rights of action and suits by the assignees thereof 28 . An interested stockholder of a corporation may pay the tax of the corporation under protest and being action in his own name to recover the money back. Over- valuation a 'favoritism in fixing values by the board of re- view is good grounds under C. L. 3899, for setting aside the tax. The entry of the time of payment of the tax upon the treasurers books is not conclusive of the time payment was made 28 . When a tax payer simply protests against payment, without assigning any reasons therefor, the pay- ment is voluntary in the absence of some kind of duress 30 . 161. Demand for Tax. The statute requires a personal demand upon resident owners of property for' the tax, but if this provision should be mandatory, it will at least be presumed that such demand was made, in the absence of a contrary showing 31 . Statutory Provision. C. L. 3869 provides : "For the purpose of collect- ing the taxes remaining unpaid on the Tenth day of 27. Laing v. Forest Twp., 139 142 Mich. 194. Mich. 159. 30. Traverse Beach Ass'n v. 28. Williams v. Merritt, 152 Elmwood Twp., 142 Mich. 78. Mich. 621. 31. Dickinson v. Reynolds, 48 29. Lingle v. Elmwood Twp., Mich. 159. 226 COLLECTION OF LIEN FOR AND LIABILITY FOR TAX ^ 1'..' January, the said treasurer shall, thereafter during that month, call personally upon each person liable to pay such taxes, if a resident of such township, or at his usual place of residence or business therein, and demand payment of the taxes charged against him." This section further provides for demand of tax from non-residents by mail and for demand upon the cashier of a bank for the tax upon the capital stock of the bank. Whatever necessity there may have been under the old system of the collection of taxes and tax sales, a lack of demand is not such an excuse as will vacate a decree of sale, or a sale, in the chancery court 3 *. 162. Tax Receipts. A tax receipt is prima facie evidence of the payment of the tax. It does not fall within the rule which excludes hearsay evidence nor does it rest upon the principle which admits entries made by third persons against their interests, or in the ordinary course of business. The giving of a receipt for taxes by the township treasurer is an official act which the statute requires him to perform. The manifest purpose of the statute was to furnish the tax payer with written evidence of payment. The action of the treasurer in reference to the payment, receipts and returns for the taxes, are a part of the res gestac or proceedings upon which the tax deed depends. The receipt is therefore origin.il evidence, not conclusive, but sufficient until invalidated by proof 88 . 32. Auditor General v. Spar- Conley v. McMillan. 120 Midi row, 116 Mich. 574; Hughes v. 694. Jordan, 118 Mich. 27; Hooker >. 33. Johnstone v. Scott. 11 Bond. 118 Mich. 255; Shefferly v. Mich. 232, 144. Auditor General. 120 Mich. 455; (15) ^ Hi:] THE LAW OF TAXATION 226 Statutory Provision. Act 212 of Public Acts of 1905, 98a, provides, in cases of delinquent tax lands, that where a tax has been paid, and the payment was not entered upon the collector's roll, the owner shall file his receipt with the proper county treasurer, who shall furnish the owner a certified copy thereof, to be used in procuring a cancellation of the sale by the auditor general. The county treasurer is likewise required to collect this money back from the local treasurer. A tax receipt, however, is not of itself evidence to prove a lien on premises held under tax title for taxes paid; the lien is proven by the assessment rolls 34 . ^ 163. Levy. It is competent for the legislature to authorize a seizure and sale of any property in the possession of a delinquent tax payer. If the property belonged to some other person, such person may have his remedy against the delinquent tax-payer 35 . Statutory Provision. C. L 3870, as amended by Act 215 of Public Acts of 1899, provides: "If any person, firm or corporation shall neglect or refuse to pay any tax assessed to him or them, the township or city treasurer, as the case may be, shall collect the same by seizing the personal property of such person, firm or corporation, to an amount sufficient to pay such tax, fees and charges for subsequent sale, wherever the same may be found 34. Weitner v. Porter, 42 Mich. 35. Sears v. Cottrell, 5 Mich. 569. 274 ; see liability, 154, supra. i "II l.i I KI.\ OF I. UN Fo|< AND UAISII.FIY FOR TAX 1G3 in the State, and from which seizure no property shall be exempt. He may sell the property seized to an amount sufficient to pay the taxes and all charges, in the place where seized, or in the township or city of which he is treasurer, at public auction, on giving public notice of the same at least five days previous to the sale, by posting written or printed notices in three public places in the township, village or city where the sale is to be made, which sale may be adjourned from time to time if he shall deem the same necessary ; and in case property shall be seized and advertised as herein directed, during the life of the warrant, the sale may take place at any time within six days after the expiration thereof." This section further provides that any surplus on the sale shall be returned to the owner ; if the property cannot be sold for want of bidders, then the tax shall be returned unpaid. The township treasurer may also sue and garnishee for any tax on personal property. If any person having possession of the personal property of another, is obliged to pay the tax thereon, he may recover the same in assumpsit from the person for whose benefit the tax was paid. In case of a levy for taxes upon real estate, the levy shall be released if within ten days after levy the persons having title to the land shall convey the same to the State of Michigan, free of all mortgages and liens whatsoever. In such case, the board of state auditors shall pay the expenses of the township treas- urer in making such levy. If the officer levy upon a stranger's property to satisfy the tax. the owner cannot resist with force; if he does, he will be criminally liable for resisting an officer. If. how- 163 THE LAW OF TAXATION 228 ever, the officer attempted to take exempt property, the owner would be justified in offering a reasonable resistance. In such a case the act of the officer would be a trespass 3 *. The fact that the property is assessed to a co-partnership instead of a corporation will not defeat a levy against the corporation when it is the owner of the property taxed and the successor of the co-partnership 37 . The collector may seize and sell personal property by virtue of his warrant. If he holds the property an unreasonable length of time before sale, he does not become a trespasser ab initio, but the owner of the property may recover for an excessive charge for keeping the property 38 . Though a portion of the tax may be illegal, yet the levy will hold for the amount of unpaid legal taxes 39 . A levy cannot be made upon personal property in the hands of an assignee for the benefit of creditors until the ten days have expired for the filing of a bond by the assignee 40 . Neither, under the old statutes, could a levy be made for the tax assessed upon the lands of a non-resident 41 . A levy may be made upon the property of the real owner where he has conveyed his prop- erty for the sole purpose of avoiding payment of his tax 42 . Where, however, the sale is bona fide, as by one corporation to its successor, the stockholders not being identical in the two companies, the vendee will not be liable for the tax 36. People v. Smith, 131 Mich. 38. Bird v. Perkins, 33 Mich. 570, following principle of People 28. v. Clements, 68 Mich. 655. 39. Lake Superior Ship Canal 37. Petrie Lumber Co. v. Co. v. Thompson, 56 Mich. 493, Collins. 66 Mich. 64; Farnsworth 498. Co. v. Rand, Me. 65, 19. In Mich. 40. Act 198 of Laws of 1871, Dairy Co. v. McKinley. 70 Mich. 1; Lyons v. Harris, 52 Mich. 574, a levy was sustained upon 272, 279. corporate property for a tax 41. Tweed v. Metcalf, 4 Mich. assessed in the alternative to the 579, 601. corporation or its manager. 42. Gray v. Finn, 96 Mich. 62. .".".' O1 lit TION OK I.IKN FOR AND I.IAIUI.ITV FOR TAX assessed against the vendor 43 . A levy upon personal property by the collector is presumed to satisfy the tax, and until it affirmatively appears that the sale of the personal property would not satisfy the tax, a bill will not lie to quiet title 44 . An assignment of a mortgage owned by partners for the purpose of avoiding taxation, is not a fraud upon the members of the firm 45 . Under C. L. 3871, a levy may be made upon the personal property of a delinquent tax payer situated in another township from where the property is assessed. Under such circumstances, it is only necessary that the fair import of the local treasurers certificate comply with the statute, showing that the delinquent has no personal prop- erty in that township at that time ; it need not be worded in the language of the statute 46 . 164. Levy Upon Railroad Property. It cannot be supposed that the legislature, in authorizing the construction of a railroad, and granting peculiar fran- chises for its operation and use, ever intended that execu- tion creditors might levy upon parcels of it, and cut it up into sections, and destroy it as a great public thorough- fare 47 . The railroad, from one end to the other, is an 43. Chippewa Hardware Co. v. City Rv 76 Mich. 421, 427, it is Atwood, 127 Mich 338. held that a sale would have to be 44. Henry v. Gregory, 29 Mich. of the franchise as a whole, the 68. purchaser to collect the tolls for 45. Stradley v. Cargill Elevator a certain term of years. In Co., 135 Mich. 367. Auditor General v. Lake George 4f. Godkin v. Corliss, 146 etc., Ry., 82 Mich. 426, it is held Mich. 507. that under II. S. 3403, C. L. 6328 47. Georgia v. Ry. Co., 3 the claim for specific taxes is * Woods 434 ; L. S. & M. S. Ry. v. lien on all personal property ; but Grand Rapids, 102 Mich. 374; that the railroad company is en- Detroit v. Circuit Judge, 127 titled to possession until the state Mich. 604 ; Hackley v. Mack, 60 by proper action takes it. Mich. 591. In Detroit v. Detroit 164 THE LAW OF TAXATION 230 entirety, and as a whole, may be subject to taxation or coercive sale. Fragmentary taxations or sales might be unjustly vexatious and injurious to the owners, pervert the destination of the road, and disturb the public use and interest. To avoid such evils and absurdities, the law treats a railroad and all its appurtenances as one entire thing, not legally subject to coercive severance or dis- location 48 . The rule has generally been laid down that while the franchises and privileges of a railroad company, its lands, easements and things essential to the existence of a corporation, or necessary to the enjoyment of its franchise, could not be sold on execution to satisfy a judg- ment at law against it, yet the locomotives, cars and other personal property could be when not in actual use 49 . A railroad company can no more discharge its public duties without locomotives and passenger and freight cars than it can without a franchise, a track, or a depot ; and yet the existence of these great corporations with all the property, real and personal, essential or at least highly beneficial to their successful operation, entirely exempt from execution at law, would be insufferable. So comprehensive an exemp- tion will not now be sustained. So far as any general rule can be formulated upon the subject, it is this : That prop- erty of a corporation is not subject to execution which is not subject to voluntary transfer by the corporation. The mere right of franchise to be a corporation is never, in the absence of special statutory authority, subject to sale, whether voluntary or under execution 80 . The locomotives. 48. Applegate v. Ernst, 3 Bush etc., Ry. v. Boney, 117 Ind. 501 ; 643. Williams v. Ry. Co., 29 N. J. Eq. 49. Chicago, etc., Ry. v. -Ellson, 311. 113 Mich. 30, 35 approving the 50. Plymouth R. R. Co. v. statement of the text; Louisville Colwell, 39 Pa St. 337. -.'Jl 0)1.1. KCTION OF LIEN FOR AND I.IAIHI.Il V 1 < R TAX I i'.4 cars, machinery, etc., is either personal or real property. It must in the nature of things be one or the other. It cannot be both, nor can it for any legal purpose be said to partake of the nature of both. It has always heretofore been treated as personal property liable to seizure and sale on execution. To sell the rolling stock of a railroad would no more be a destruction of the road in legal contemplation than the sale of a farmer's teams, stock and farming utensils would be a destruction of his farm. In either case there would be a necessity of keeping the jiersonal prop- erty, arising out of the pecuniary inability oi the owner to replace it, and thus make the use of the other property, to which the personality was essential, profitable. But the law regards no such necessity as this for any purpose; and certainly not for the purpose of enabling a debtor to retain his property for his own emolument, and set his creditors, or any class of them, at defiance 51 . The court of New York, again, in discussing whether cars were personal property subject to taxation and levy sale for the tax, or real estate, holds, that if they were the former, no question can be made but that the collector had the right to levy on and sell them for the purpose of collect- ing the tax, being at the time in possession of the company against which the tax warrant was issued, irrespective of the lien or title of any other person by mortgage or other- wise. If the cars were a part of the real estate, it is equally clear that the collector had no right to levy upon or sell them. The question does not at all depend upon the length of the road, or whether the road of one company connects with that of others of the same gauge, and the companies so connecting, in the transaction of their busi- 51. Stevens v. Ry. Co.. 3t Karb. 590. > !'>"> THE LAW OF TAXATION 232 ness, are in the habit of running the cars of each over all of the roads so connecting, or whether the road has no connections, and consequently, in the transaction of its business, its cars do not run beyond its own track 52 . Upon the principles above stated, an exemption from levy does not apply to property not used for railroad purposes, as railroad grant lands after the title has become perfect in the company 53 , nor to personal property as coal stored for future use 54 . 165. Sale Under Levy. The same rule applies to a sale of property by a tax collector under his warrant, in relation to the amount of property sold, as to a judicial sale. The collector cannot sell an excessive amount of property, and where the prop- erty seized is susceptible of separate offerings, it must be sold separately 55 . In order to make the sale effectual and furnish any ground of action against the collector, the property must be taken from the possession of the owner, or taken so far as the nature of the property will permit. A sale of growing crops would be good because they cannot be removed, but a sale of goods in the possession of the owner, where the vendee does not attempt to take posses- sion, does not amount to a conversion 56 . 52. Randall v. Ellwell, 52 N. 53. Tucker v. Ferguson, 22 Y. 521, same principle in Beard- Wall. 527. sley v. Ontario Bank, 31 Barb. 54. Chicago, etc., Ry. v. Ellson, 619; Boston, etc., Ry. v. Gilmore, 113 Mich. 30. 37 N. H. 410; Coe v. Ry. Co., 10 55. Leaton v. Murphy, 78 Ohio St 372 ; Dubuque v. Ry. Co., Mich. 77 ; Starr v. Shepard, 145 39 la. 56; State Treasurer v. Mich. 362. Somerville, etc., Ry., 4 Dutch. 56. Mills v. Van Camp, 41 (la) 21. Mich. 645. CHAPTER X. ACCOUNTING WITH COLLECTOR. 166. Accounting with Collector. 167. Accounting between School District-. 168. Accounting with County Treasurer. 169. Accounting between Townships. 170. Accounting between Townships and County. 171. Accounting between State and County. 172. County Treasurer and State Taxes. 173. County Treasurer and Miscellaneous. 174. Collector's Return of Taxes. 175. Warrant of County Treasurer. 176. Certificate of County Clerk. 177. Return to Auditor Gcr.cral. 17s. Taxes. When Sale is Set Aside. 179. Right to Pay Delinquent Taxes. 166. Accounting With Collector. The county treasurer, in his official capacity, may main- tain an action against the township treasurer to recover state and county taxes collected by him. It will be no defense that such taxes were illegally assessed. He receives them in payment of taxes, and as money belonging to the public. Those who were assessed voluntarily pay it in satisfaction of their tax dues and in the discharge of their duty as citizens, and the treasurer receives it .as money of the public which it is his official duty and province to receive and take care of for the public benefit. It is not the col- lector's when paid and received and does not become liis afterwards. The equitable ownership of the money and the legal responsibility of the collector are the same. It is paid and received as tax money, and is covered by his duty 5 166 THE LAW OF TAXATION and his bond. The doctrine rests on policy, reason and authority 1 . Statutory Provisions. Act No. 8 of Public Acts of 1909 requires the county treasurer to bring suit against a collector where he has collected taxes and not marked them paid on the collect- ing roll. C. L. 3875, requires taxes collected to be paid out for the following purposes, in the order named, viz, school taxes, general township taxes, highway taxes, and taxes for special funds. Upon the same principle, any excess of the roll is a public fund and must be paid over to the township. Although the township board may have made a settlement with the collector and not charged him with such excess, yet, as the funds do not belong to the board, but to the public, such action would not stop the township from bring- ing an action on the bond for any balance found due 2 . Un- less the statute expressly so provides, a collector cannot sell property under his warrant for his fees, nor deduct his fees from the proceeds of property sold 3 . When the col- lector charges certain illegal fees for making a levy, the township will not be liable therefor 4 . A bill will lie by a township treasurer, against his predecessor in office, for an accounting of the moneys and funds turned over to him, and to cancel a receipt given by fraud or mistake 5 . 1. Berrien County Treasurer v. refuses to disturb a finding of fact Bunberry, 45 Mich. 79. 85; Ma- by a jury, as to a settlement. son v. School Dist. 34 Mich. 228 ; 3. Fuller v. Grand Rapids. 40 King v. United States. 99 U. S. Mich. 395. 229; Gwynne v Burnell. 7 Clark 4. Godkin v Doyle Twp.. 143 & Finn, 572. Mich. 236. 2. Boardman Twp. v. Flagg, 5. Beaton v. Inland Twp.. 149 70 Mich. 372. In Monroe Twp. v. Mich. 558. Whipple. 62 Mich. 560. the court 235 ACCOUNTING WITH COLLECTOR ^ 1'7. 1 'I s $167. Accounting Between School Districts. On the formation of a new district, an apportionment of valuation by the school inspectors, without notice, is void; and a bill in equity will lie at the instance of the old district to enjoin the collection of its share of a tax to build a union school for the benefit of both districts, authorized by the electors before the division of the district*. One district may file a bill against another district asking for an accounting of taxes which belonged to both districts 7 . At common law, the township was not liable for the defalca- tion of its officers, but it now is by statute. When a town- ship treasurer embezzles school monies, the supervisor will be compelled to spread the amount so lost, upon the gen- eral roll of the township 8 . 168. Accounting With County Treasurer. The county treasurer is not a state officer in such sense as to make his defalcations fall upon the state. The county will be liable therefor, the treasurer's bond being only cum- ulative security to the state 9 . Although, as in the case <>f a liquor tax, the money may not go to, or belong to the county, either in whole or in part, and the treasurer acts only as the agent of the municipalities in such collections, his bond covers such monies so received. Money received officially from any source whatsoever is apparently within the terms, and the treasurer is required to account not exclusively to the supervisors or the county, but to any person authorized by law to receive from him whatever he 6. School Dist. v. School Dist.. 8. Smith v. Jones, 136 Mich 63 Mich. :,1. .132. 7. School Dist. v. Dean, 17 0. Attorney General v. St. Gair Mich. 273. Supervisors. 30 Mich. 388. S 160 , THE LAW OF TAXATION 230 may hold officially in his custody. If the tax is provided for before the bond is executed, the sureties are liable 10 . 169. Accounting Between Townships. The right of a municipality to a tax becomes vested at the time the tax is to be paid; and if it is not then paid, the subsequent annexation of the territory to some other municipality before payment, does not transfer to the latter the right to the money 11 . Where the amount due from one township to another is liquidated, mandamus is the proper remedy to compel its payment. Where a duty exists in a township to pay a specific and ascertained charge, it would be unjust to both parties, debtor and creditor, to permit or require a suit at law, where the judgment cannot be col- lected by execution. The township ought not to be put to a useless expense by the fault of its officers, and the creditor ought not to be put to delay, or a double pursuit 12 . If, however, the amount is not stated and liquidated, assumpsit will lie 13 ; but the account may be referred to a referee, in mandamus proceedings, to determine the account 14 . In the case of special taxes, as for drainage, there is no liability on the part of the township for such taxes in its treasurer's hands. Any action must be brought against the treasurer 16 . On a decision of townships, afte'r a suit commenced against the old township, the new town- 10. Marquette County v. Ward, Cass Co. Board v. Porter Twp., 50 Mich. 174, 177. 18 Mich. 101; Comins Twp. v. 11. Springwells Twp. v. Wayne Harrisville Twp., 45 Mich. 4,4.2. Treasurer, 58 Mich. 240, involv- 13. Cummings Twp. v. Oge- ing payment of liquor tax ; Stam- maw Co., 93 Mich. 315. baugh Twp. v. County Treasurer, 14. Haines v. Saginaw Co., 87 153 Mich. 104. Mich. 237. 12. Marathon Twp. v. Oregon, 15. Anderson v. Hill, 54 Mich. 3 Mich. 372, 378 ; Dayton Twp. v. 477 : Dawson v. Aurelius Twp., 49 Rounds, 27 Mich. 8? : Anderson v. Mich. 470 ; Camp v. Algansee La Grange Twp.. 2 Mich. 18s. Twp.. 50 Mich. 4. ACCOUNTING WITH COLLECTOR ? K ' ' ships are bound by the judgment, and should pro-rate pay it. The uncollected taxes, when paid should be divided in the same manner as other cerdits 18 . Where a township voted certain money to pave a certain street, and this street was afterwards included in a new village corporation, it was competent for the legislature to provide that this money should be turned over to the village 17 . j-170. Accounting Between Township and County. By the principles of the common law the township in its corporate capacity cannot be subjected to liability to the county for the result of the township treasurer's misdoings. The general relation between the county and township in respect to the collection of county taxes, and their return to the county, would not afford any basis for it. In no exact sense can it be said that the township is agent for the county, and no common law obligation arises against the township to guarantee the integrity and responsibility of the treasurer. For simplicity and convenience of admin- istration the law makes use of the township officer to gather and pay over the county tax. But when it does so and goes no further, the implication is that the local officer is for such function the official agent of the county, and not of the township, and that the county must look elsewhere than to the township for indemnity in case of misconduct. The county may bring suit direct upon the treasurer's bond, or may charge the loss to the township and if necessary compel the spreading of this tax by mandamus the succeed- ing year. The action of assumpsit will not lie against the township 18 . Such a claim may be enforced by the county 16. Gladwin Twp. v. Bourrett Mich. 524. Twp.. 131 Mich. 353. 18. Hart Twp. v. Ocoana Co., 17. Page v. Gros. Pt. Twp., 134 44 Mich. 417. 170 THE LAW OF TAXATION at any time, since there is no outlawry between state and county, and county and township 19 . Money paid officially by the auditor general into the hands of the county treasurer is binding upon the county. Where the county treasurer defaults, the county is liable to the townships for their proportionate share of such money, since the county will be regarded as having received it as against all other parties than the treasurer himself. If the county compromises with such defaulting treasurer, it does not, in so doing, act as the agent of the township; and mandamus will lie to compel payment to the township of its monies so lost. Such an action may arise where a township is detached from one county and set off to another county, in which case it would stand no portion of the county tax to make good the loss 20 . The county treasurer, however, in the collection of special taxes, such as liquor tax, acts as the agent of the several municipalities ; and the county will not be liable to such municipalities for the default of its treasurer, nor can such municipalities set off, or retain any loss so occasioned, out of the valid county taxes. The county does not guarantee the integrity of its officers 21 . A township is liable to a county for returned township drain taxes for which it received credit from the county on their return, which were later charged back to the county by the auditor general 2 . When the account between the county and township has not been stated, and there is a dispute as to the amount due, the action of 19. Oceana Co. v. Hart Twp., years old were ordered paid. 48 Mich. 319. In Shiawassee Co. 20. Roscommon Twp. v. Mid- v. Hazelton Twp., 82 Mich. 440, land Co., 49 Mich. 454. on account of $8.97, 30 years old, 21. Marquette Co. v. Dillon, 4* was charged back to the township Mich. 244. with interest, amounting to $96.49. 22. Shiawassee Co. v. Hazelton In Auditor General v. Shiawassee Twp., 82 Mich. 440. Co., 74 Mich. 536, 550, claims 20 889 ACCOUNTING WITH COLLECTOR 171 assumpsit can be maintained against the county; the rights of the parties can be more properly and justly ascertained than in mandamus proceedings 23 . Inasmuch as only the local municipal officers can collect a tax on personal prop- erty, and such taxes at once become a debt to the township against the person to whom they are assessed, the county treasurers, by a practical construction of the statute extend- ing over thirty years, may withhold the state and county taxes assessed upon personal property from any township monies coming into his hands- 4 . Where a township board draws warrants on the county treasurer to be paid out of monies belonging to the township, such orders will be valid in a settlement between the township and county in so far as they have been paid without being countermanded. After countermand, they cannot be charged against the township 26 . 171. Accounting Between State and County. The action of the auditor general in stating an account between the county and state, cannot be examined upon certiorari 26 . Under the statute, counties may implead each other at law or in equity on any matter of variance, and therefore an action will lie by one county against another* 7 . 23. Cummings Twp. v. Ogc- unreturned in the hands of the maw Co., 93 Mich. 315; Muskegon city treasurer. This case is ex- City v. Muskegon Co., 123 Mich, plained in 123 Mich. 274, supra, 272, being assumpsit. the county treasurer admitting 24. Muskegon City v. Muske- that he was retaining city money, gon Co., 123 Mich. 272, 274. In 25. Cummings Twp. v. Oge- Muskegon City v. Soderberg, 111 maw Co., 100 Mich. 561. Mich. 559. it is held that the coun- 26. Midland Co . v. Auditor ty treasurer could not retain city General, 27 Mich. 165. money to offset such state and 27. H. S. 5463, C. L. 12465; county taxes on personal prop- Ontonogon Co. v. Gogebic Co., 74 erty while his warrant for the Mich. 721 ; Auditor General v. collection of such taxes was still Bay C., 106 Mich. 662, 669. jj l?'l THE LAW OF TAXATION Where one county has paid money for the use of another, payment cannot be enforced by mandamus, but must be by suit 28 . Claims of the state against a county may be en- forced by mandamus; and either mistake or fraud may be shown in the auditor general's account. The court will grant relief whether the mistake be one of law or fact 28 . The auditor general may keep all township monies received by him and apply them on the indebtedness of the county 30 . The county is liable to the state for interest on the annual balance found due, and for any default of the county treas- urer in paying over state taxes 31 , but not for the loss sustained by selling lands for less than the taxes due under the law of 18 69 32 . Moreover, where the county has once paid an illegal claim made by the state, it cannot there- after set up such illegal payment as a set-off to a valid claim 33 . The four per cent collection fee goes either to the county treasury or the state treasury, as the county treasurer or auditor general collects or receives the taxes 34 . The loss caused by refunding money paid for void tax sales, falls upon the county and state, the county standing 28. Bay Co. v. Arenac Co., Co., 76 Mich. 295; Auditor Gen- ii 1 Mich. 105, eral v. Shiawasee Co., 74 Mich. 29. Auditor General v. Sag- 536; Auditor General v. Saginaw inaw Co., 62 Mich. 579, 592 ; Audi- Co., 62 Mich. 579 ; Auditor Gen- tor General v. Ottawa Co., 76 eral v. Monroe Co., 36 Mich. 70; Mich. 295. Auditor General v. Midland Co., 30. Ottawa Co. v. Auditor 84 Mich. 121. General, 69 Mich. 1. 33 . See suits against state. 31. Auditor General v. Ottawa Auditor General v. Bay County, Co., 76 Mich. 295; Auditor Gen- 106 Mich. 662; Ambler v. Auditor eral v. Bay Co., 106 Mich. 662, General, 38 Mich., 746 Auditor 669 ; Auditor General v. Shiawas- General v. Van Tassell, 73 Mich, see Co., 74 Mich. 536, 554; Shia- 29; Auditor General v. Grand wassee Co. v. Hazelton Twp., 82 Traverse Co., 73 Mich. 182. Mich. 440; Attorney General v. 34. Auditor General v. Bay St. Clair Co., 30 Mich. 388. Co., 106 Mich. 662, 671. 32. Auditor General v. Ottawa ACCOUNTING WITH COLLECTOR the loss of all but the state tax, which is borne by the state* 8 . The state may charge the county with the cost of the state militia used to preserve peace in a county, and compel it* payment 30 , with the rejected taxes 37 and with the cost of collecting delinquent taxes 88 . Money paid by a city treas- urer to the county treasurer by mistake, in reality belonging to the city, may be compelled by mandamus to be refunded. Such a claim need not be presented to the board of super- visors 39 . So a township detached from a county may compel the payment to it of such of its monies as is held by the county treasurer 40 . The decree on the tax hearing, fixing the charges on delinquent tax lands, is conclusive between the state and the county. If the decree omits certain statutory charges, the loss occasioned by such omission cannot be charged back to the county 41 . The expense of advertising lands, when the tax was paid before the advertising was done, is chargeable to the county where the county treasurer neglected to make a report of such payment. It is the policy of the law to make losses, occurring through defective tax proceedings, chargeable to the state, county or municipality, through the default of whose officers the loss occurred 42 . 172. County Treasurer. In so far as the handling of state taxes is concerned, the treasurer acts for the state and for no other body. He 35. Auditor General v. Bay 39. Webster v. Wheeler, 119 Co., 106 Mich. 662, 675; Hough- Mich. 601. ton Co. v. Auditor General, 41 40. Roscommon Twp. v. Mid- Mich. 28. land Co.. 49 Mich. 454. 36. Auditor General v. Bay 41. Warren v. Auditor Gen- Co., 106 Mich. 662, 678. cral, 131 Mich. 263. 37. Auditor General v. Mon- 42. Oppenborn v. Auditor Gen- roe Co., 36 Mich. 70. cral, 140 Mich. 92, construing 559, 38. Auditor General v. Bolt, 91, 95, of the tax law. 124 Mich. 185, 172 THE LAW OF TAXATION cannot retain the state taxes to satisfy or off-set a former illegal demand paid by the county to the state. The super- visors have no more control over the money in his hands than if it were in the state treasury. It is a district trust fund, and can no more be stopped there, and devoted to county purposes, than it could be attached or garnisheed for the county, or for any one to whom the county is in- debted. There is no point of view in which this money can be allowed to be impounded or retained in his hands which does not involve every element of a suit against the state. It would be a very dangerous doctrine to allow the revenues of the public to be tampered with while in process of realization. If such considerations can prevail in any case, they must prevail in all cases where the treasurer should see fit to set them up. A defense which can be law- fully made, cannot be disposed of until the final hearing, and the final hearing must await the determination of issues of fact, and the lapse of time to dispose of them in the usual course of trial. The state would soon become bankrupt if any county officer can, at his will, raise questions concerning the balance of accounts, and keep the money until they are settled 43 . The treasurer may resist an illegal claim, in any action the state may bring ; but when once such claim is paid, he cannot afterwards set it up as an off-set against a valid claim 44 . While the county treas- urer may be liable on his bond for not making a seasonable return of delinquent taxes to the auditor general, it must 43. See Suits against state. 182. 407, post. Auditor General v. 44. Auditor General v. Shia- Van Tassell, 73 Mich. 29, 33; wassee Co., 74 Mich. 537; Audi- Auditor General v. Bay Co., 106 tor General v. Bay Co., 106 Mich. Mich. 662, 665; Auditor General 662, 666. v. Grand Traverse Co., 73 Mich. ACCOUNTING WITH CI. I. KCTOR i 1 < " appear affirmatively that the returns were made by the several collectors, and that the time of collecting- taxes had not been extended 45 . 173. County Treasurer. Miscellaneous. TIic county treasurer is not an agent of the state in con- ducting tax sales in the sense that the state is liable for his shortage. The county is liable therefor since R. S. 1846 48 . As a public officer it is his duty to collect the public monies and he may bring suit upon the bond of his predecessor for money not paid over 47 . His failure to file his bond in time does not avoid tax sales made by him 48 . Mandamus will lie to compel him to advertise and sell delinquent tax lands. His duty is ministerial 49 . For the same reason, he cannot pass upon the legality of the return of the taxes 50 . Neither can he refuse to make payments ordered by the board of supervisors 51 . Money coming into his hands remains public money; and interest on such funds belong to the county 52 . Under the law of 1893, the county treasurer was required to 'furnish certificates free to be attached to deeds to enable them to be recorded 53 . His certificate that there are no taxes assessed against property, or that they are paid, is equivalent to payment in so far as cancelling a tax sale 54 , but such certificate must be given while he has power to receive the money for the tax in question. He 45. Houghton Co. v. Rees, 34 50. Jackson v. Weinhold, 11? Mich. 481, 487. Mich. 305. 46. Attorney General v. St. 51. Friedman v. Horning, 128 dair Co., 30 Mich. 388. Mich. 606. 47. Berrien County Treasurer 52. Board of Supervisors of v. Bunhury, 47 Mich. 579. Kent Co. v. Verkerke, 128 Mich. 49. Stockle v. Silsbee, 41 Mich. 202. 515. 53. Backus v. County Treas- 49. Hudson Village v. Whit- urcr. 90 Mich. 218. ney, 53 Mich. 158. 54. Hough v. Auditor General, 174 THE LAW OF TAXATION 244 has no power to give such a certificate as to taxes for which the land has been sold, though such sale be set aside 55 . 174. Collector's Return of Taxes. The collecting officer is required to make a return, on oath, as to his uncollected taxes, and file this return with the county treasurer 56 . Statutory Provisions. C. L. 3878 provides: "If the township treasurer or other collecting officer shall be unable to collect any of the taxes on his roll, assessed on real property, he shall make a statement of the same with a full and perfect description of such property, as assessed upon said roll, with the several taxes assessed upon each parcel thereof, which statement shall be verified by the affidavit of such treasurer or collector that such taxes remain unpaid, and that he has not, upon diligent in- quiry, been able to discover any goods or chattels liable to pay such sums whereupon he could levy the same. The said treasurer or collector shall also make a state- ment showing the taxes upon personal property remaining unpaid, and the names of the persons against whom assessed, and the amount against each; * * *." This section further requires the treasurer to set 'forth, under oath, the moneys collected by him on account of taxes, and the sums unpaid as above 116 Mich. 663; Young v. Auditor 113 Mich. 657; Bloutin v. Griffin, General, 118 Mich. 550; Kneeland 133 Mich. 647; Bullock v. Audi- v. Hyman, 118 Mich. 156; Hotf- tor General, 142 Mich. 122; man v. Auditor General, 136 Welever v. Auditor General, 143 Mich. 689. Mich. 311. 55. Shulbe v. Auditor General, 56. Stockle v. Silsbee, 41 131 Mich. 676; Gray v. Detroit, Mich. 615. ACCOUNTING \MT1I inl.LECTOR $ \ ', \ required to be specified; that he has not, on diligent inquiry, been able to discover any goods or chattels belonging to the party liable whereon to levy. At this time, and no other, the county treasurer may re- ject any tax upon lahd which shall have been twice assessed, or upon any parcel so erroneously or defectively described as not to be correctly and easily ascertained. C. L. 3879 provides that the settlement of the county treasurer with the township treasurer shall dis- charge the treasurer and his sureties from their bond and obligation, unless such return is incorrect, when they shall be liable on such bond for all damages occasioned by an incorrect return. It further pro- vides : "The county treasurer shall give the township or city treasurer a statement of all personal taxes which remain uncollected, taken from the return of the latter, with a warrant authorizing him or his successor to collect them according to law, and thereafter such treasurer or his successor shall have the same power to collect such taxes as under the original warrant." The fact that this original return was sent to the auditor general instead of being retained in the treasurer's office will not invalidate a tax title 57 . The oath may be admin- istered by the deputy county treasurer 58 . The return of a de facto collector will not make such return illegal, although he was not, in fact, qualified to hold the office 59 . If the collector's return is in proper form it will he presumed that 57. Stockle v. Silsbee. 41 thereon. Mich. 615. In Seymour v. 58. Malonny v. Mahar, 1 Peters, 67 Mich. 415, it is held Mich. 26. that a failure to verify the re- 59. Auditor General v. Long- turn will avoid a tax title based year. 110 Mich. 223. 174 THE LAW OF TAXATION 246 he made a personal demand for the taxes 60 ; but there must be a return made 61 , and it must show that he found no property on which to levy 62 . Under the old tax proceed- ings, a premature return of delinquent taxes rendered a later tax sale void. The owner had the right to make the payment of his taxes to the township treasurer at any time before the latter was obliged to make his return, without being subject to additional charges 63 . But where the warrant was extended, the return could be made before the extension expired, since the extension was for the benefit of the collector and the tax payer would not be injured thereby 64 . Under the chancery proceedings, the failure of the collector to make a return on oath of the moneys collected will not vitiate a return of land for delinquent taxes. This statement of amount collected is for the pur- pose of accounting only 66 , but the collector could not in- stitute an action for the tax after his warrant had expired without such return and a new warrant from the county treasurer 66 . Since the change in the tax laws whereby a tax lien is foreclosed in chancery, the courts, so far as 60. Dickison v. Reynolds, 48 65. Tweed v. Metcalf, 4 Mich. 159. Mich. 579; Hood v. Judkins, 61 61. Newkirk v. Fisher, 72 Mich. 575; Boyce v. Stevens, 86 Mich. 15. In Upton v. Kennedy, Mich. 549. This case is dis- 36 Mich. 215, an unsigned, un- tinguished from 78 Mich. 235, verified return, is held to have below, in that the return here, no legal value. though defective, did state an 62. Tompkins v. Johnson, 75 inability to collect the tax, Mich. 181. which does not appear in the 63. Bailey v. Haywood, 70 case referred to. Mich. 188; Weir v. Kitchens, 52 66. Port Huron Twp. v. Miss. 74; Ronkendorf v. Taylor, Potts, 78 Mich. 435; C. L. 3879; 4 Peters 349; Hickman v. Northwestern Lumber Co. v. Kempner, 35 Ark. 505; Flint v. Scott, 123 Mich. 357, 358; Ban- Sawyer, 30 Me. 226. gor Twp. v. Smith Transporta- 64. Drennan v. Meierlein, 49 tion Co., 106 Mich. 223; Mus- Mich. 272; Shefferly v. Auditor kegon v. Martin Lumber Co., General, 120 Mich. 454. 86 Mich. 625. '-' \'i ACCOUNTING WITH COLLECTOR 175 irregularities go, will consider only the equities of the case and enforce a payment of the tax when the collector him- self could not have done so, or when the return would not have supported a sale under the old law 97 , as a premature return 08 . If the collector falsely returns "nulla bona," a lien holder upon the property who is thereby compelled to pay the tax to save his lien has a common law right of action against the collector. The principle involved is that a public officer having ministerial duties to perform in which a private individual has a special and direct interest, is liable to such person at common law, for such injury as may result from a failure to perform his duty 69 . The county treasurer cannot refuse to receive a collector's return of delinquent taxes because of alleged irregularities therein. The treasurer cannot pass upon the validity of taxes assessed 70 . 175. Warrant of County Treasurer. The county treasurer cannot issue his warrant for un- paid personal taxes until the local treasurer has made his return of such taxes; and if he prematurely issues his warrant it will be void 71 . While the seizure of property under a warrant not based upon the verified return of the local treasurer would be sufficient irregularity to permit the 67. Auditor General v. Spar- out, 10 Peters 80; Brown v. row, 116 Mich. 574; Auditor Lester, 21 Miss. 392; Auditor Genera] v. Hutchinson, 114 General v. Hutchinson, 113 Mich. 245. In Conley v. McMil- Mich. 245. Ian, 120 Mich. 694, no demand 70. Jackson City v. County for the tax was made, and the Treasurer, 117 Mich. 305. return was late. 71. C. L. 3S79 : sec. 174. note 68. Conley v. McMillan, 120 supra. Bangor Twp. v. Smith Mich. 694. Transportation Co., 106 Mich. 69. Raynesford v. Phelps, 43 223; Port Huron Twp. v. Potts. Mich. 343; Amy v. Supervisors, 78 Mich. 435: Muskc(?on v. Mar- 11 Wall. 136; Tracey v. Swarth- tin Lumber Co., 86 Mich. 625. 176, 177 THE LAW OF TAXATION 248 recovery back of the tax in an action at law. it will not support replevin 72 . Such warrant, if fair upon its face, will protect the officer executing it 73 . 176. Certificate of County Clerk. The county clerk does not certify the collector's return to the county treasurer. His duty applies only when the time for collecting taxes is extended, and to certifying to the accuracy of the transcript sent by the county treasurer to the auditor general 74 . 177. Return to Auditor General. It is the duty of the county treasurer to make his return to the auditor general not later than the month of May; and if he neglects his duty in this respect he will be liable on his bond 75 . Statutory Provision. C. L. 3880 provides: "When any county treas- urer shall receive from a township treasurer a state- ment of unpaid taxes, together with a list of the lands on which the same are delinquent, verified according to law, such county treasurer shall enter the same at length on the books in his office, provided for that purpose, and he shall make a transcript of all the descriptions of land returned as delinquent for un- paid taxes, except such as may have been rejected by 72. Northwestern Lumber required to make this transcript Co. v. Scott, 12.3 Mich. 357. nor was one then required as a 73. Wood v. Thomas, 38 basis for further proceedings. Mich. 686. Auditor General v. Keweenaw 74. C. L. 3880; Hunt v. Ass'n., 107 Mich. 405. Chapin, 42 Mich. 24. Under the 75. Houghton Countv v. Roes, law of 1891, the clerk was not 34 Mich. 481. Ml!' ACCor.N I 1\<; U 1111 ( <>ll. hi TOR .^ 1 I I him, with the several taxes assessed upon such descriptions respectively, which transcript shall be compared by the county clerk with the statement of the county treasurer, and if the county clerk finds it to be a true transcript thereof, he shall add to it a certificate that he has, upon careful examination, found it correct." This section further provides that such transcript shall be forwarded to the auditor general by the 1st of May next after such return is made, and that the auditor general may, in his judgment, extend the time in which this return may be made to him. Where the treasurer made his returns from the original lists, and did not keep a separate record of returned lands as required by statute, the tax payer is not injured thereby and cannot complain 78 . The return is not vitiated because the county treasurer forwarded the original returns instead of transcripts 77 . Where the auditor general has erroneously issued a statement that taxes are paid upon lands returned delinquent to him, he is justified in refusing to issue a tax deed thereon 78 . The auditor general cannot be compelled to receive returns of delinquent taxes after the time fixed by law therefor. Under our present system it is con- templated that there shall always be an opportunity to pay delinquent taxes at the auditor general's office: and \vlu ' parties own lands in different counties, the convenience in doing this is often of considerable importance. It would also be very likely to lead to mistakes and to losses of land in consequence, if parties who pay at the auditor's office, and who apply at a time all unpaid taxes should be iound there, and pay all that the records there show, were liable 76. Auditor General v. Ke- Mich. 615. weenaw Ass'n., 107 Mich. 405. 78. Hand v. Auditor General. 77. Stockle v. Silshee. 41 112 Mich. S97. $ 177 THE LAW OF TAXATION 250 afterwards to have delinquencies reported against them 70 . In any event, the auditor general, in the absence of statutory authority, could not receive delayed returns at a time when it was too late to offer them for sak at their proper time and year they should have been offered for sale. A power to receive delinquent taxes in the next or succeeding years after they should have been returned implies a power in the auditor general to adjourn the tax sales, which he cannot do. While the auditor general might, in his dis- cretion, receive any returns which were offered in time for the regular sales of the year, he has no more power indirectly to postpone a sale to a subsequent year, by post- poning the reception of the returns, than he can do by more direct action. Not only would the interests of the public be prejudiced by such action, but the interests of owners of lands are liable to be seriously prejudiced also. They have a right to suppose that the regular tax proceed- ings are taken, and to deal with the lands on that suppo- sition ; and a purchaser of lands who buys them, supposing they are free from taxes, except such as the regular returns would show, would be greatly wronged if they might sub- sequently be sold for a tax long since levied, but appearing when he bought only upon an unaccepted return which the auditor general then retained, subject to his future dis- cretion. It is a familiar principle that those provisions of tax laws, a departure from which would be prejudicial to the owners of property, cannot be held merely directory. There are some cases in which lands are, by statute, ex- pressly permitted to be sold in a year subsequent to the time when they should regularly have been. One of these 79. Houghton County v. Auditor General, 36 Mich. 271, 272. j:.l M cm MINI, WITH mi. i. ix TOR : is, when the lands were not sold at the proper time, by reason of error in advertising or other cause, not affecting the legality of the assessment, or require the rejection of the taxes thereon. C. L. 1871, 1044. But this con- templates a case where the lands are advertised for sale, and then by reason of error in the advertisement or other cause, cannot be or are not sold. The returns in such case are in any event on file with the auditor general. Another case is where the taxes are rejected for some informality, irregularity or defect in description, and reassessed 80 . 178. Taxes. When Sale is Set Aside. The auditor general is authorized, when lands were bid in to the state in contravention of any law, to set the sale aside. In such event, or where the court may have set the sale aside, he may proceed to collect such taxes as in the case of returned taxes. In these cases, if a land owner wishes to redeem, the taxes are payable to the auditor gen- eral and not to the county treasurer 81 . Statutory Provisions. Act 169 of Public Acts of 1899. amends 138, 139 of the Tax Law. 138 provides, "All lands which 80. Houghton County v. not enlarge the power of the Auditor General, 41 Mich. 28, 30. auditor general as to tin- 81. Schulte v. Auditor Gen- grounds upon which he could eral, 131 Mich. 676; Auditor cancel sales. This case is ap- General v. O'Connor, 83 Mich. proved in Adkin v. Pillcn, 136 464. In Auditor General v. Mich. 682, 684. The above pro- Sherman , 136 Mich. 157, the visions are held to furnish a court holds that a tax purchaser valid procedure for foreclosing is chargeable with notice of the tax liens which accrued prior to lien of the state for a tax where 1891, though no method of fore- the decree of sale had been can- closure was before provided; celed under the provisions of Auditor General v. Carpenter, 139, and that this section did 13* Mich. r>r,9, 672. In Schaaf Y. 1?'8 THE LAW OF TAXATION 252 have been returned to the auditor general as delinquent * * * and upon which the taxes are now or shall hereafter remain unpaid and which have not been sold for such taxes, and all lands so returned which have been heretofore sold for such delinquent taxes, and upon which the sale or sales so made shall have been or may hereafter be set aside by any court of com- petent jurisdiction, or shall have been or may here- after be canceled, as provided by law, shall be subject to disposition, sale and redemption for the enforce- ment and collection of such tax liens in the method and manner provided in this act for the disposition, sale and redemption of lands made subject to the pro- visions of this act by section sixty thereof:" The section further provides that this section shall not affect lands the sale of which has been set aside for any reason affecting the validity of the tax. It further provides that the court may enter a decree for the sale of land for taxes for any year prior to 1891 without making a charge for interest, in its discretion. It also provides that before sale, the auditor general shall accept any tax assessed in 1890 or prior years, with only collection fees and expenses added. 138 provides: "The auditor general may cause an examination to be made of the proceedings under which any lands bid to the state, and which have not been deeded by the auditor general, were sold for delinquent taxes and bid to the state under the pro- O'Connor, 146 Mich. 504, the purchase has expired, required court intimates that the power to be given by 143 of the tax of the Auditor General to can- law, (Act 128 of Public Acts of eel a tax deed is not lost even 1901). after the six months notice of 253 ACCOUNTING WITH COLLECTOR visions of any general tax law, and if he shall find that such sales or the decrees under and by virtue of which such sales were made were in contravention of any provision of the laws in force at the time such decree were entered or sales made, he may cancel such sales and proceed at any time to enforce the collection of such taxes under and in accordance with the pro- visions of this act, as in the case of lands returned or sold thereunder." 179. Right to Pay Delinquent Tax. Any person may pay any tax or an undivided portion of them, at any time before the land is sold. They must pay the statutory charges incurred, and interest as fixed by the statute. The legislature has the power to change the rate of interest and amount of charges after the land has been returned 82 . Statutory Provisions. C. L. 3876: "Any one may pay the taxes or any one of the several taxes or any part thereof on any parcel of land and the treasurer shall note across the face of the receipt in ink, any portion of the taxes remaining unpaid. He may pay any tax whether levied on personal or real property, under protest to the treasurer, specifying at the time in writing signed by him, the grounds of such protest, * * * Any person owning an undivided share, or other part or parcel of real property assessed in one description, 82. Webster v. Auditor Gen- protests do not apply to pro- era!, 121 Mich. 668. As pointed tests made to the county treas- out in Weston v. Luce County, urer. 102 Mich. 528, the statutory 179 THE LAW OF TAXATION 254 may pay on the part thus owned by paying an amount having the same relation to the whole tax as the part on which payment is made has to the whole parcel. The person making such payment shall accurately describe the part or share on which he makes payment, and the receipt given and the record of the receiving officer shall show such description, and by whom paid ; and in case of the sale of the remaining part or share for non-payment of taxes, he may purchase the same in like manner as any disinterested person could. Any person having a lien on property, may after thirty days from the time the tax is payable, pay the taxes thereon, and the same may be added to his lien and recovered with the rate of interest born by the lien. A tenant of real estate may pay the taxes thereon and deduct the same from his rent unless there be an agree- ment to the contrary. Such payment may be made to the township treasurer while the tax roll is in his hands, or afterwards to the county treasurer. The receipt given shall be evidence of such payment." C. L. 3881 provides for payment to the county treasurer, as provided in 3876, supra, after the return of the lands to him. C. L. 3882 provides for such payment with interest at the rate of one per cent a month from March 1st, together with a % collection fee; and on and after October 1st, preceeding the sale, a further charge of one dollar for expenses. C. L. 3897, as amended by Act 262 of Public Acts of 1899 provides: "Any person owning any of the lands sold as aforesaid, or any interest therein, may at any time before the first Tuesday in May in the 255 .uvnr.vn.v; WITH COLLECTOR i II'.' year following such sale, redeem any parcel of such lands or any part or interest in such lands, by showing to the satisfaction of the county treasurer or auditor general that he owns only that part or interest in the same which he proposes to redeem, by paying to the county treasurer or auditor general the amount of the sale of the parcel of land, or the portion thereof wished to be redeemed, and interest thereon from the date of such sale." The provisions in relation to the redemption of lands, or the payment of delinquent taxes, are subject to amend- ment by the legislature. The court held in reference to such amendment, that the amended section took the place of, and repealed the original one, and, being the only act in force providing for redemption, it must govern; that it must be assumed that such was the intention of the legis- lature, as the only alternative would be to infer an intention to cut off all redemption as to prior sales, which would not only be contrary to uniform state policy in that regard, and therefore not to be deduced by slight inference, but it would affect injuriously the rights of those who before were entitled to redeem 83 . 83. C. L. 1871, 1059, re- law affecting the remedy is in quired the payment of interest such cases subject to amend- at the rate of 50%; as amended ment, even though the time fixed by Act 17 of Laws of 1875, the for the sale or redemption be rate of interest was reduced to shortened." "It is evident that 25%. Flint & P. M. Ry. v. Sag- the provision for the sale of inaw County Treasurer, 32 state tax lands at private sale Mich. 260, 261. In Muirhead is not one for the benefit of the v. Sands, 111 Mich. 487, 491, it original owner, as the period of is held that the period of re- redemption fixed by the statute demption may -be shortened. is precisely the same whether The court says: "But the pro- the state or an individual be- ceeding is essentially in itivitum, comes the purchaser." See also and the proceeding on a sale 25 Am. & Eng. Enc. Law, 1st of land is a remedy for the de- Ed., 410; Baldwin v. Ely, 66 linquency of the tax payer. The Wis. 171. CHAPTER XI. THE SALE AND PURCHASERS. 180. Amount Sold. 181. Fraud in Sale. 182. Several Parcels Sold As One. 183. Who May Make Sale. 184. Purchasers in General. 185. Occupant as Purchaser. 186. Tenant in Common as Purchaser. 187. Life Tenant as Purchaser. 188. Purchaser Holding Land Contract. 189. Mortgagee as Purchaser. 190. Lessee as Purchaser. 191. Husband and Wife as Purchasers. 192. Public Officers as Purchasers. 193. Payment, etc. 194. Caveat Emptor. 195. Surplus. 196. State Tax Lands. 197. Purchase of State Tax Lands. 198. Period of Redemption. 199. Sale of Redemption for Less than Taxes Due. 200. Refunding of Taxes by Owner. 201. Cumulative Tax Titles. 180. Amount Sold. Unless specifically restricted by statute, there is no limit to the amount of land that could be sold to pay the tax 1 . No presumption of fraud arises because a large tract of land is sold for a small amount of taxes 2 . Except in cases of express statutory authority, the auditor general has no 1. 12 of Chap. VI of R. S. laws of 1842, p. 97. Sibley v. 1838 limited tax sales to tracts Smith, 2 Mich. 487, 498. containing not more than 40 2. Tweed v. Metcalf, 4 Mich, acres; but this was repealed, 579, 601. 257 THE SALE AND PURCHASERS ? 1 x 1 power or authority to adjourn a tax sale; and a sale so illegally held would be a nullity, and the county would not be entitled to any credits for lands so bid in by the state at such illegal sale 3 . The same rule is applied to sales of personal property to satisfy a delinquent tax as in judicial sales. The municipality can only sell sufficient to pay the tax due. It cannot offer in gross an unreasonable amount of separable personal property, the value of which is largely in excess of the tax, and a bill will lie to restain such action 4 . 181. Fraud in Sale. All combinations or collusion between bidders at a sale of lands for delinquent taxes, which has a tendency to pre- vent free and open competition, is fraudulent in law and renders a tax sale void as to any person in the combination. But a bidder at a tax sale is not affected by any agreement or understanding among others to which he was not a party. It is the policy of the law to encourage purchasers at tax sales, and under any other rule no person would be safe in making a bid 5 . The sale will be void when the sell- ing officer, by fraudulent misrepresentations, keeps the owner of property away from the tax sale 8 . The county treasurer or other selling officer cannot himself become the purchaser of land at a tax sale. It is contrary to every sound principle of equity to allow an agent who is 3. Houghton Co. v. Auditor chaser is the owner of one of General, 41 Mich. 28, 30. the parcels and in default for 4. Starr v. Shepard, 145 the taxes. Mich. 302, where the stock- 6. Christian v. Soderberg. holders of the company brought 118 Mich. 47: Taylor v. Snyder an injunction bill. Walk Ch. 490, holding that 5. Case v. Dean, 16 Mich. 12, fraudulent purchaser is not cn- 29. This case also holds that titled to a repayment of his a sale of several distinct parcels, money. jointly, is bad where the pur- 182 THE LAW OF TAXATION authorized to sell property, for the best price that can be obtained for it, to become the purchaser himself. It is immaterial whether the sale be public or private; whether the agent purchase in his own name or in that of another. The object is to secure fidelity on the part of the agent to the principal; and it is applicable to public agents as well as others, and should if anything, be enforced more rigidly against them as they have greater opportunities of abusing their trust. The respective duties of buyers and sellers at a tax sale are incompatible with each other, and no person, in whatever capacity he may undertake to act, can sustain both characters. The provision of the statute in requiring the tax to be made from the sale of as small a portion of the parcel of land as possible is in the interest of the tax payer. It is the duty of the treasurer to take care of that interest. He ought not to act for himself or any other purchaser because the two interests conflict 7 . In this respect, the sales of land for delinquent taxes are governed by the rules relating to judicial sales 8 . 182. Several Parcels Sold as One. The rule as to purchase by a cotenant also applies to an owner of one of several distinct parcels sold as one, upon the principle that one by his own default cannot acquire an advantage over another. Such an owner could have separated and paid his own tax had he so desired 9 . 7. Clute v. Barton, 2 Mich. Mich. 77: Hall v. Collins, 117 192. 195; Pierce v. Baughman. Mich. 617, 618. 14 Pick 356; Hall v. Collins, 117 9. Coley v. Waterman, 16 Mich. 617, 619. See also, Pur- Mich. 366; Roe v. Williston, 20 chasers, Public officers, post. Wis. 228. 8. Leaton v. Murphy, 78 TIIK SAI.K AND IM'KC HAM K- L83, 184 183. Who May Make Sale. The county treasurer, or his deputy in his absence, may conduct a tax sale 10 . Statutory Provision. C. L. 3893 provides for the sale of the lands mentioned by the decree, by the county treasurer, begining on the first Tuesday in May and continue the same from day to day, but making his report to the auditor general within twenty days after the com- mencement of the sale. They may also be made by the auditor general or his deputy, or in general by any officer authorized by law. A sale made by the county treasurer instead of the auditor general may be validated by the legislature 11 . The making of these sales is an official act and must be performed by an officer. While such officer may employ a clerk to assist him in conducting such sales, they must be made by him- self or his authorized deputy, or under his direction. He cannot delegate his power to a mere clerk 12 . 184. Purchasers in General. There are a great many cases in which parties standing in particular relations to the land, or to the owner or other person interested therein, are not suffered to acquire tax titles and rely upon them as against other claimants. Some of those are very plain and it is quite unnecessary to do more than name them. A tenant, who has covenanted to pay the taxes, cannot be suffered to neglect this duty, and 10. Hall v. Collins, 117 Mich. & Co., 123 Mich. 74. 617. 12. Hall v. ColliiK. 117 Mich. 11. Hoffman v. Pack, Woods 617, 618. 184 THE LAW OF TAXATION 260 then acquire a tax title which shall cut off the title of his landlord. Neither shall the purchaser in possession under an executory contract be allowed to cut off the rights of his vendor by a like purchase, nor a mortgagor that of his mortgagee. A tax purchase made while such a relation exists is made in wrong 13 . In general, any person may become the purchaser of a tax title who is not in default himself in allowing the premises to be sold, or who is under no duty, either with respect to himself or others to pay any portion of the tax, and who does not stand in the relation of a trustee to any party in interest. One who indemnifies a mortgagee against certain tax titles cannot thereafter purchase such titles and oppose them to the mortgage 14 . Where a grantor, in pursuance of his covenants of warranty, furnishes the money to one of several cotenants to clear up an outstanding tax title, a conveyance thereof insures to the benefit of all the cotenants; and the facts may be shown by parol even in an action at law 15 . A solicitor for a client in foreclosure proceedings, who bids in the mortgaged premises at a tax sale, will be presumed to have done so in 13. Brown v. Avery, 119 not use the same upon whfch Mich. 384, 387, quoting from to predicate a bar of the statute Conn. Mut. Life Ins. Co. v. of limitations against the plain- Bulte, 45 Mich. 113; also Avery tiff's title. To permit him 1o v. Judd, 21 Wis. 262; Washing- do so would be to sanction ton, etc., Trust Co. v. McKen- fraud. This tax title was paid zie, 64 Minn. 273. for by the grantor of Myron 14. Wyman v. Baer, 46 Mich. Richards, and belonged to hi? 418. estate in equity. This defend- 15. Richards v. Richards, 75 ant Simeon Richards well knew, Mich. 408, where a co-tenant and he will not be allowed, even acquired a tax title purchased in a court of law, to set up a with money paid in accordance claim of ownership, which could with a verbal contract with the not be in good faith, upon it, then deceased original owner. so as to set the statute of limi- The court says: "But whether tations in motion against its or not he went into possession rightful owners." See also De- under this tax title, and so freese v. Lake, 109 Mich. 415. 427. claimed to the world, he can- jt;i i UK 9 M i \M) IM K( ii \ the interest of his client 16 . A tax title purchased by the original owner, merges in the original title. In such case, it is immaterial whether the title purchased was valid or invalid 17 . One who obtain the record title to land by fraud cannot become the purchaser of a tax title. The tax title merges with the fee; and when the original title is divested tecause of the fraud, the tax title is not thereby revived 18 . The general principle applicable to these cases is, that a purchase made by one whose duty it was to pay the taxes shall operate as a payment only; he shall acquire no rights as against a third party, by neglect of the duty which he owed to such party. To preclude any person from making and relying upon a purchase of lands at a tax sale, there must be something in the circumstances of the case which imposes upon him a duty to the state to pay the tax, or something which renders it inequitable, as between himself and the holder of the existing title, that he should make the purchase. There can be no estoppel against one purchas- ing tax titles except against one who had a duty to pay the tax or remove the burden. Therefore, a parol agree- ment to purchase lands, the consideration being to assume the taxes and pay an agreed price in addition, l)eing void 16. Boardman v. Boozewin- statute; all others would have kel. 121 Mich. 320; in Sherman to pay such sums as the holder v. Fisher, 138 Mich. 391, the at- of the title choose to exact, torney was not held to have Burton had apparantly a valid purchased a tax title for his title of record, vested with the client in the absence of evidence statutory privilege of a recon- that it was charged to the client. veyance. As a matter of fact. 17. Clippinger v. Auditor his ownership was acquired by General. 135 Mich. 1. fraud and he was not entitled 18. Chandler v. Clark. 151 to a reconveyance. The con- Mich. 159, 183: "Only such veyance intended to restore to owners ("original owner, etc. "I a former owner the title which could call upon the state's gran- he has lost cannot be made the tee for a reconveyance hy pav- hai<; <^f an entirely distinct and inc the sums required In- the new title." 185 THE LAW OF TAXATION 262 under the statute of frauds, will not disqualify the person making such agreement from purchasing the lands at a tax sale; but where such would-be purchaser induces the owner to remain quiet under such an agreement, and then secretly purchases the land at a tax sale, the sale will be set aside 19 . 185. Occupant as Purchaser. Unless a duty has been neglected, or a trust relation exists, whereby it was the duty of the purchaser to protect the land, or part of it, from sale, any person may become the purchaser. To preclude any person from making or relying upon a purchase of lands at a tax sale, there must be something in the circumstances of the case which imposes upon him a duty to the state to pay the tax, or something which renders it inequitable, as between himself and the holder of the existing title, that he should make the pur- chase. If, however, the occupant goes into possession with the aid of the other tenants, or in recognition of their rights, he incurs duties which would be inconsistent with his holding a tax title 20 . Also, where the son of a tenant purchases the tax title and the tenant temporarily and fraudulently removes for the purpose of giving posses- 19. Ball v. Harpham, 140 clusively bar such occupant Mich. 661; in this case the writ from being a tax title pur- of assistance was stayed for chaser: and Sands v. Davis, 40 two months after a final dis- Mich. 14, holding that the position of the case, to finally owner of an undivided interest, issue if complainant defaulted in who enters as a stranger to his reimbursing the defendant. The co-tenants, is not estopped from court approves Blackwood v. setting up against them an ad- Van Vliet, 30 Mich. 118, where verse tax title that arose from it is held that the taking pos- his grantor's default prior to his session of land before a tax was own purchase, actually levied, but after the 20. Blackwood v. Van Vliet. duty to pay had become fixed 30 Mich. 118, 121 ; Simons v. on other shoulders, did not con- Rood, 129 Mich. 345, 348. TIIKSAI.K \\D ITUCHAM -:i<> i I-''- sion to the son, the period of limitation will not begin to run until the owner has had notice of such act 21 . An occupant of premises, being liable for the tax, cannot pur- chase his premises at a tax sale for taxes which were assessed subsequent to his occupancy; but he may become a purchaser for taxes assessed prior thereto because there was no duty resting upon him to pay such taxes. An occupant in possession of premises cannot strengthen his title without statutory permission, by purchasing tax titles, even though the tax was assessed l>efore he purchased or took possession. The reason for this rule is that a tax sale is a breaking up of all former titles, and operates not to support, but to destroy them 22 . Where an occupant would otherwise have a right to purchase except for a prior claim of ownership, he may waive such claim, as a devise, and hold under the tax title 23 . A grantor of premises, remaining in possession of premises, is a tenant at sufferance, and will be presumed to have purchased a tax title in the interest of his grantee. This presumption can only be over-thrown by circumstances tending to show a clear renunciation of the rights of the grantor, brought home to the knowledge of the grantee, and of a subsequent, adverse and exclusive possession under claim of superior right 24 . 186. Purchasers. Tenants in Common. A cotenant who purchases a tax title stands simply as 21. Williams v. Fox. 152 bona fide dispute as to title, the Mich. 215. occupant may allow his land to 22. Lacey v. Davis, 4 Mich. be sold and bid it in to 140, 153; Douglass v. Danger- strengthen his title. field, 10 Ohio 152; Ballance v. 23. Defreese v. Lake, 109 Forsyth, 12 How. 18; Veris v. Mich. 415. 427. Thomas. 12 111. 442. In Jeffery 24. Paldi v. Paldi. 84 Mich. v. Hursh, 4r> Mich. 59, the court 346, 350. intimates that where there is a 186 THE LAW OF TAXATION one who has paid under compulsion taxes assessed against the property held by him in common with others. The burden is cast upon all of the cotenants to pay the taxes assessed against the land. This each might have dis- charged, so far as his own interest was concerned, by pay- ing his aliquot proportion of the tax, and .thus relieve such interest from the lien of the tax which the law imposes upon it. Where all neglect to do this, and the state resorts to the coercive measure of a sale to compel it, one cotenant. by bidding in the property, can acquire no title against his other cotenants. The reason for this rule being, that being in default himself, his default as well as that of his co- tenants, occasioned the sale, and he cannot be permitted to take advantage of his own neglect to acquire the title of others. Such a purchase simply gives him a right to compel contribution from his cotenants 25 . The reason usually assigned for not permitting such a purchase is that the sale is based in part upon the pur- chasers own default, but it is also true that in a great pro- portion of such cases the parties stand to each other in confidential relations; and it may without much violence to the facts be assumed that they do so in all cases. No doubt, also, that the rule which precludes their speculating in each others defaults is grounded on sound policy. Still, the purchaser does not lose what he has paid beyond what is needful for discharging the lien upon his own interest: his cotenants must refund to him such portion as is found to be just. The purchaser is a trustee for the others, but 25. Page v. Webster, 8 Mich. ?8 111. 342: McConnel v. Kone- 263: Butler v. Porter, 13 Mich. nel. 46 111. 519; Dahlem v. Ab- 292; Sleight v. Roe, 125 Mich. bott, 146 Mich. 605; Richards v. 585, 588: Frentz v. Klotsch, 28 Richards, 75 Mich. 408. Wis. 312: Chickering v.. Faile. 265 Tin-. BALI AM i-i -KI HAS) ? : they must repay their proportion of his advances 26 . The cotenants, under such circumstances, will not stand in any better position, if he procure a stranger to bid in the land at a tax sale and purchase the title from him 27 . One tenant in common, however, may acquire a tax title against his cotenant when such cotenant has abandoned the premises, or where the tax title was not suffered to accrue through the default the purchasing tenant, or where the cotenants received their respective titles through different instruments, and no relationship of confidence or trust existed between them 2 *. Where the title of the purchaser was not derived from his cotenants, he owes them no duty. The propriety of applying the doctrines between lessor and lessee, to a vendor and vandee, may well be doubted. The vendee acquires the title for himself, and his faith is not pledged to maintain the title of the vendor. The rights of the vendor are in- tended to be extinguished by his sale, and he has no con- tinuing interest in the maintainance of his title unless he should be called upon in consequence of some warrant of covenant in his deed. The property having become by the sale the property of the vendee, he has a right to fortify that title by the purchase of any other which may protect him in the quiet enjoyment of the premises. No principle of morality restrains him from doing this; nor is either the letter or spirit of the contract violated. Under these principles, a cotenant could purchase, also, an outstanding tax title based upon taxes which were assessed either be- 20. Connecticut, etc., Ins. Co. Ahrens, 55 Mich. 111. In St. v. Bulle. -r> Mich. in. 121. Mary's Power Co. v. Chandler. 27. Dpbois v. Canipau, 24 133 Mich. 470, a co-tenant claim- Mich. 360, 368. intf adversely to his co-tenants. 28. Boynton v. Veldman, m is held capable of purchasing Mich. 555: Chamberlain v. and relying upon a tax title. >; IS?', Ibb. IbU THE LAW OF TAXATION 2G6 fore he purchased his interest, or before he took possession of the premises 29 . 187. Purchaser. Life Tenant. It is the duty of a tenant for life to pay the taxes, and therefore he cannot acquire a tax title to the exclusion of the remainderman. When there is a second life tenant whose term commences on the termination of the first, he is under no obligation to preserve the estate, not yet having come into its enjoyment. If, however, he chooses to do so that he might preserve his term or interest, he should be content to look to the occupant or owner of the first life estate for reimbursement, or to the remainderman, to whose benefit as well as his own, such payment inured 30 . 188. Purchaser Holding Land Contract. A purchaser of premises in possession under a land con- tract, cannot acquire a tax title as against his vendor. Although an outstanding title might be sufficient to defeat the contract, yet if the vendee voluntarily heals the defect by his own act, he cannot avail himself of the purchase to destroy the original contract. The same rule applies here that obtains between landlord and tenant 31 . 189. Purchaser. Mortgagee. A mortgagee is under no legal obligation, either to the owner of the land, or to another mortgagee, to pay the 29. Sands v. Davis, 40 Mich. same principle was applied to a 14, 19, questioned in Simons v. mortgage foreclosure. Reed. 129 Mich. 545; Blights 31. Curran v. Banks, 123 Lessee v. Rochester, 7 Wheat. Mich. 594; Murrell v. Goodyear. 548; reaffrmed in Olmstead v. \L De Gex, F. & J. 432: Hubbard Tracy, 145 Mich. 299. v. Shepard, 117 Mich. 25: Boyn- 30. Jeffers v. Sydham. 129 ton v. Veldman, 131 Mich. 555: Mich. 440: Defreese v. Lake, Bertram v. Cook, 32 Mich. 518: 109 Mich. 415, 427. In Brown Pringle v. Wagoner, 110 Mich, v. Brogan, 119 Mich. 218, the 612. See 199 supra. TI1K SAI.K AXD PURSIIASES 189 taxes upon the land. To the state, each of the three may he said to owe the duty to pay the taxes; and the state will sell the interest of all if none of the three shall pay. As between themselves, the primary duty is upon the mort- gagor; but if he makes default, either of the mortgagees may pay, and one of the two must pay, or the land be sold and the lien extinguished. But in such cases where each has the same right, payment by one is allowed to increase the amount of his incumbrance for in no other way could he have security for its repayment by the mortgagor, who ought to protect the security he has given. When, there- fore, each mortgagee has the same interest to do so. and the same means of compelling repayment, it may well be held that a purchase by one shall not be suffered to cut off the right of the other, because it is based as much upon his own default as upon that of a party whose lien he seeks to extinguish. It is as just and as politic here, as it is in the case of tenants in common, to hold that the purchase is only a payment of the tax 82 . Where a mortgagee, instead of making payment of the taxes, makes a purchase of the land at a tax sale, either in his own name or in the name of any other person who has his money for the purpose, there is no doubt of the right of the mortgagor to have the purchase treated as a payment, and to compel the cancel- ment of the certificates or deed, on refunding the amount paid with interest. But the right to treat the purchase as a payment is the right of the mortgagor only, and rests upon a principle of equity that is necessary for his pro- 32. Connecticut, etc., Ins. Co. ants claiming that the purchase v. Bulte, 45 Mich. 113, 112, of a tax title was a payment of where the time of redemption the tax. Horton v. Ingersol, 13 from a foreclosed mortgage was Mich. 409. held to be extended by defend- 1M> THE LAW OF TAXATION :J-'i s tection. Neither party to a mortgage can be suffered, against the will of the other, to buy at a tax sale and thereby cut off the other's interest. But either may bid, as a stranger to the title may, if the other makes no objection 33 . Where a mortgagee furnishes the money to pay or pur- chase a tax title in the name of a third person, having only the oral agreement of such person to convey, there is no resulting trust, and such payment cannot be added to the principal unless there is an actual conveyance of such title 34 . A mortgagee has no right to suppose that the taxes will be paid by the owner of the land, and where there is ample time, should notify such owner even before redeeming from a tax sale. If he pays prematurely his lien will not attach for such payment unless it is so specified in the mortgage 35 . Although the mortgage interest may be assessed to the mortgagee, and there was a legal duty upon the mortgagee to pay such tax under the statute, neither the mortgagor nor his wife could acquire a tax title against the holder of the mortgage, or of the mortgage interest in the land 38 . An execution purchaser of the equity of redemption owes to a prior mortgagee the duty of paying the taxes, and a purchase of a tax title by him will be deemed a payment of the tax 37 . A party in possession of land, claiming title, who is subrogated to a mortgage thereon which he has paid, cannot, if he has not title, hold a lien for taxes paid. 33. Maxfield v. Wiley, 6 a debt against the vendor with- Mich. 252, 255: Porter v. Corbin, out proof of the regularity of 124 Mich. 201. the tax. 34. Jones v. Wells, 30 Mich. 36. Chamberlain v . Forbes, 170. 126 Mich. 86; Vreeland v. Mon- 35. Pond v. Drake, 50 Mich. nier, 127 Mich. 304: Baker v. 302. In White v. Gibson, 14fi Union Trust Co.. 129 Mich. 581; Mich. 547, it is held that the Darenberg v. Ockerman, 130 payment of a delinquent tax by Mich. 23. the vendor after notice of a tax 37. Fells v. Barbour. 58 Mich, sale purchase will not establish 49, 53. I !!K SALE AND PURCHASERS $ 1 '.'>. I'.il The taxes paid may be set-off against an accounting for the use of the land 38 . 190. Purchaser. Lessee. A tenant who has covenanted to pay the taxes cannot be suffered to neglect this duty and then acquire a title which shall cut off the title of his landlord. A tax purchase made while such a relation exists is wrong; and the law, in circumvention of dishonesty, will conclusively presume that it was made in the performance of duty, and not in repudiation of it 89 . Where a licensee of premises is ex- cluded from any rights conveyed by a certain deed, he is not precluded from becoming a purchaser of a tax title of the premises from which he is excluded 10 . In general, a tenant in possession of the premises cannot acquire an out- standing title hostile to his landlord, and maintain any action thereon. He must wait until after he has sur- rendered the possession 41 . 191. Purchaser. Husband and Wife. The law does not permit the husband to acquire a tax title hostile to the title of his wife. Such a title would inure to her benefit just as much as though purchased in 38. Taylor v. Roniger, 147 who had agreed to pay the Mich. 100. taxes, allowed them to be re- 39. Connecticut, etc., Ins. Co. turned; and finally the land was v. Bulte, 45 Mich. 113, 120; Fells set over to the state as home- v. Barbour, 58 Mich. 49, 53. stead land and purchased by the 40. Munroe v. Winegar, 128 tenant. The entire sale and set- Mich. 309. tin>? over to the state was set 41. Ryerson v. Eldred, 18 aside, though more than six Mich. 12, 18; Nims v. Sherman, months had elapsed after the 43 Mich. 45; Williams v. Towle. land had been conveyed to the 65 Mich. 204. Lesser paid a land commissioner as home- ground rent. Tn Dixon v. Lud- stead land. ington, 130 Mich. 269. a tenant 192, 193 THE LAW OF TAXATION 270 her name. It could not be made the basis of an adverse possession during her life 42 . Purchaser. Public Officers. The county treasurer and his deputies have certain duties to perform for and in behalf of the public, which pre- cludes them from becoming purchasers at a tax sale. The records of sales are kept in the treasurer's office. They are to make the sales to the one who will take the least land and pay the tax. When the land is bid in to the state, and no one takes the state bid before the next annual sale, it is then his duty to offer the land to the highest bidder 48 . It is the treasurer's duty to keep an account of all lands sold from the list bid in by the state, and of all lands on which the taxes have been paid 44 . He and his deputies are always in a position to know the situation and con- dition of every piece of land in the county which has been returned delinquent 'for taxes, and may at any moment give wrong information in relation thereto. If one seeks to purchase a state bid, the treasurer or his deputy may step in ahead and make the purchase 45 . This rule does not prevent an applicant to purchase lands frpm handing an application and money to purchase certain lands to an employe in the office of the auditor general, with a request to file such application if the desired lands are not sold 48 . 193. Payment, Etc. The purchaser is bound to see that the law is complied 42. Ward v. Nestell, 113 45. Wait v. Gardiner. 12:5 Mich. 185; Chamberlain v. Mich. 236; Clute v. Barren, 2 Forbes. 126 Mich. 86; see 203. ^ f ich. 172: Hall v. Collins, 127 43. 79. Act 206 of Public Mich. 617. Acts of 1893: C. L. 3902. 46. Youngs v. Povey, 127 44. Act 161 of Public Acts of Mich. 297. 1895. 271 THE SALE AND PURCHASERS 194 \vith by the selling officers 47 . The applicant must deposit sufficient to pay for all descriptions applied for, or specifically designate on which descriptions the sums paid must be applied, or the sum offered will not be considered paid upon any description 48 . Payment is presumed to have been made at the date of the application and not at the date of the deed 49 . Where the land is sold at public sale by the county treasurer, the purchaser is not bound to pay all taxes assessed and a lien upon the premises: but if jt is sold at private sale by the auditor general such taxes must be paid or the tax title will be void 50 . 194. Caveat Emptor. The state does not lose its rights to lands, or estop itself from claiming them, by taxing them to an occupier and taking proceedings to enforce payment thereof. Our laws regarding the assessment and collection of taxes have usually had regard to the possession rather than to the ownership. The township officer who makes the assess- ment goes to no record to inquire into the title; he as- sumes, and has a right to assume, that the occupants owe a duty to the government, in respect to his possession, and he taxes him accordingly; and all of the subsequent pro- ceedings by county and state officers are based upon this assessment, and with no more question usually, regarding the title, than was made by the assessor. If the state sells for delinquent taxes, it warrants nothing and represents nothing. The purchaser takes the risk, not only of the 47. Jenkinson v. Auditor 120 Mich. 586; Wilkin v. Keith, General. 104 Mich. 34, 37. 121 Mich. 66; Youngs v. Povey, 48. Huhbard v. Auditor Gen- 127 Mich. 297. eral, 120 Mich. 505. 50. See State Tax Lands. 49. Eldridffe v. Richmond. 5197. S li>5, 11)6 THE LAW OF TAXATION 272 original authority to tax, but also of the regularity of all of the proceedings. To entitle a party to insist upon an estoppel, he must show that the other party has done some- thing or represented something, which has had the effect to mislead and deceive him; and which would render it inequitable for the right of such other party to be enforced against him. Taxing the land to an occupant affords no just ground for leading the occupant to suppose the land to be his own ; for taxation does not imply ownership in the person taxed. A tax deed gives no right but such as comes from the proceeding itself. The maxim caveat emptor ap- plies to these sales 51 . 195. Surplus. The owner of a certificate of sale, during the period of redemption, is but a lien holder, and is not entitled to any surplus money arising from a subsequent tax sale held before his certificate ripened into an absolute title by virtue of a tax deed. Such surplus belongs to the owner of the land who held the legal title at the time of the tax sale. This is a personal right and does not thereafter follow the title of the. land so sold 52 . 196. State Tax Lands. Lands, the sale of which are included in the decree of sale, become state tax lands even though not offered for sale by the county treasurer, and are thereafter subject to private sale 53 . When these lands have once been bid in by the state they cannot thereafter, while held by the state, be 51. Crane v. Reeder, 25 Mich. Doug. 276. 303, 320; Horton v. Sailing, 156 53. C. L. 3907; Mann v. Car- 15 L. N. 1114. son, 120 Mich. 631. 52. People v. Hammond, 1 I UK >ALE AND PURC11A I'.'i included in the auditor general's petition and sold fur ta returned after such prior sale to the state. Such a sale is void 54 ; but if they arc .so included, the decree cannot IK- at- tacked collaterally on account thereof 85 . If the deed is void, the lien to the state for such taxes still remains 66 . These lands need not be re-advertised at the subsequent annual tax sales, as the provision requiring such advertisement was not passed for the benefit of the original owners 57 . A tres- passer who has cut timber upon these lands and afterward purchased them, does not obtain title to the timber he formerly cut 68 . The state holds title to these lands for the state, county and township, in proportion to the several taxes due; and moneys collected for trespasses are to be divided in that proportion 69 . 197. Purchase of State Tax Lands. The purchaser of these lands is bound, before receiving his deed, to pay all taxes which had become a lien upon the premises; and deed issued by the auditor general without the payment of such taxes, is void 80 . :>4. Connecticut, etc.. Ins. Co. GO. See 198, post, as to Re- v. Wood, 155 Mich. 444; Aztec demption. Miller v. Meilstrip, Copper Co. v. Auditor General, 144 Mich. 643; Hughes v. Jor- 128 Mich. 615, 618. dan, 118 Mich. 27: Hall v. Mann, 55. Peninsular Savings Bank 122 Mich. 13; Hubbard v. Audi- v. Ward, 118 Mich. 87, 93; Hoff- tor General, 120 Mich. 505; Con- man v. Pack, Wood & Co., 123 ley v. Auditor General, 123 Mich. 74. Mich. 83; Detroit Ins. Co. v. 56. Auditor General v. New- Wood, 118 Mich. 31, 39; Citizen's man, 135 Mich. 288. Savings Bank v. Auditor Gen- 57. Youngs v. Povey, 127 eral, 123 Mich. 511; in Wilkin Mich. 297; Garner v. Wallace, v. Keith, 121 Mich. Gfi. 7:>. it is 118 Mich. 387, 391. held that a bill will lie against 58. Hickey v. Rutledge, 136 the tax purchaser and auditor Mich. 128; Blake v. Grondin, 141 general to set aside the deed. Mich. 104. In this case, the tax for the cur- 59. Alcona Board v. Auditor rent year had not yet been re- General, 13fi Mich. 130. turned to the county treasurer nun 197 THE LAW OF TAXATION 274 Statutory Provisions. C. L. 3901, as amended by Act 262 of Public Acts of 1899 : "All lands heretofore or that may be hereafter bid off to the state for taxes, which have not been redeemed or otherwise disposed of, shall be offered for sale by the county treasurer at the regular annual tax sale provided to be held under the provisions of this act. The auditor general shall furnish to the county treasurer in the month of April prior to the month of May, in the year in which such tax sales are held, as provided in this act, a statement of all lands in his county that may have been bid in for the state, then remaining unredeemed or not otherwise dis- charged. Such statement shall exhibit the aggregate amount of all sums due on each description of land, including interest thereon at the rate of twelve per cent per annum from the first day of the month in which the land was bid in to the state until the first day of the month in which said annual tax sale is to be held, as heretofore provided for by this act." C. L. 3907, as amended by Act 262 of Public Acts of 1899 : "Any person may purchase any state tax lands or any state bids, at any time except during the annual tax sale at the county treasurer's office, by pay- ing therefor to the auditor general the amount for which the same was bid off to the state, with interest on the same at the rate of one per cent per month or fraction thereof from the first day of the month in which such lands were bid off to the state, together with the other taxes which have been returned to the and it is held that the purchaser such tax. The payment of such must either pay such tax to the tax by the owner, after such local officers or deposit enough application to purchase, will not with his application to cover make the application good. 275 THE SALE AND PURCHASERS auditor general and remain a lien on such lands at the time of the purchase so made, with interest thereon at the rate provided in this act : Provided, That purchase may be made of any state bid within the period for redemption without payment of taxes for subsequent years as a condition of purchase, in case the land is not held by the state as state tax land; but for all taxes remaining unpaid the land shall be liable to sale as provided by section eighty-five of this act. Upon making payment as above such purchaser shall be en- titled to and receive a certificate, and a deed conveying all the right, title and interest of the state to such tax lands acquired or accrued by virtue of the original sale or sales to the state. All provisions of law relative to deeds executed by the auditor general on the sur- render of certificates of sale made by the several county treasurers shall be applicable in making deeds for such purchasers." A prior void state bid need not, however, be purchased 61 ; but the lien should be paid if the sale has been cancelled 82 . \Yhere a deed is issued by the auditor general for a less amount than is required to be paid under the statute, such deed is void even though the reason is a mistake in the computation made by the auditor general. The auditor general has no authority to sell and deed state lands ex- cept upon receiving the price prescribed by law; and this the purchaser is bound to know 68 . In case a deed issued I. Jennison v. Conklin, 114 subsequent tax titles were fully Mich. 9. paid for, but the state will hold c>2. Auditor General v. Sher- lien for the unpaid interest, man. i:t> Mich. 157. Hnrton v. Helenholtz 149 Mich. 63. Hoffman v. Silverthorn. "227. In Horton v. Sailing, 15 137 Mich. 60; but where the L. N 1114, the county treasurer county treasurer makes a mis- computes interest at 6% instead take in computing interest, the of 12%, it is held that the tax deed will not be void, where deed issued was void. A bill in $ 197 THE LAW OF TAXATION 276 to a purchaser is void for lack of payment of the tax liens, the holder of such deed may compel the auditor general to cancel such deed and refund the money, or he may pay such tax liens and compel the issuing of a new deed 64 . The accrued taxes need not be paid by the purchaser, however, when the lands are sold at public sale by the county treasurer under the provisions of 78 ; 84 does not then apply, as that has reference only to sales made by the auditor general, after the public sale held by the county treasurer 65 . Where these lands are sold at private sale, and the accrued taxes are not paid, a valid deed for subsequent taxes may still be given. The first deed, though void, cancels the lien for these taxes, which, however, is revived by setting the sale aside; moreover, such prior taxes may be reassessed 66 . A deposit of the full amount due upon certain lands, together with a payment of all accumulated taxes, entitles the payor to a deed; but when the deposit is insufficient, it will not be applied upon the list furnished as far as it will go with- out express authority from the payor so to do 67 . If a purchaser deposits sufficient to pay the taxes adjudged against the land, but does not tender the accrued taxes, it is not a legal offer to purchase ; and he may demand his money back rather than pay the accrued taxes. The county treasurer has no right to apply the money received to the payment of back taxes without instructions so to do 68 . A failure to pay the accrued taxes renders a deed void; but if such accrued taxes are paid subsequently by the tax equity is held the proper pro- 65. Berkey v. Burchard, 119 ceeding to cancel the tax deed Mich. 101; Munroe v. Winegar, (it being 12 years old) and to 128 Mich. 309. compel auditor general to issue 66. O'Conner v. Auditor a new deed to complainant. General, 127 Mich. 553. 64. Cockburn v. Auditor 67. Hubbard v. Auditor Gen- General, 120 Mich. 643: Conley eral, 120 Mich. 505. v. Auditor General, 123 Mich. 68. O'Donnel v. Perrin. 77 83, contains same principle. Mich. 173. 27 1 ! THE SALK AM) PURCHASERS purchaser, it seems that he might then have his deed treated as though issued at the date of the payment of such accrued taxes, subject to any laws then in force 69 . Where state tax land is sold by the state, or the county treasurer, and is also sold for the delinquent taxes at the same time, the entire sale is subject to redemption under C. L. 3894. The deed cannot pass until the usual period of redemption expires, and meantime the right to redeem continues at the auditor general's office. The state tax has seen fit to at- tach these conditions to the sale of its state tax lands, and the purchaser cannot complain 70 . In case of redemption, the purchaser is entitled to 100 f fi upon the purchase price paid to the state, and upon all accrued taxes paid by him at the time of the sale 71 . The deed will be void if issued before the period of redemption expires 72 . Until a purchaser at a tax sale obtains a deed, no title passes to him. He cannot maintain a bill to quiet title, based upon such certificate, or set it up as a defense against the original owner, though he may have been entitled to a deed on its presentation to the auditor general 73 . No title passes by virtue of the certificate until the deed issues thereon, even though the time of redemption has long passed 74 . A quit claim deed from the holder of a tax certificate acts only as an assignment thereof, and conveys no greater rights than those possessed by the grantor 75 . An error in a cer- tificate stating that the holder is entitled to a deed at an 69. Church v. Smith, 121 kel, 121 Mich. 320: People v. Mich. 97. Hammond, 1 Doupr. 276; Busch 70. Monahan v. Auditor Gen- v. Nester, 62 Mich. 381, 384. eral, 136 Mich. 247. 74. Irving v. Brownell, 11 71. Cheever v. Flint Land 111. 402: Hewitt v. Week, 59 Co. Lt., 134 Mich. 604. Wis. 444. 72. Grjffin v. Jackson. 145 75. Boardman v. Boozewin- Mich. 23. kel. 121 Mich. 320. 323; Nitz v. 73. Boardman v. Boozewin- Bolton, 71 Mich. 388. 198 THE LAW OF TAXATION 278 earlier date than that fixed by the statute, is harmless 76 . A certificate of sale is a cloud upon title, since the deed to which the purchaser would be entitled would presumptively convey a good title to the premises sold 77 . A certificate of sale issued to a grantee not then living or in existence, is a nullity 78 . Although, when land is bid off to the state, the title in the state becomes absolute, yet on a sale of the state interest, a right to redeem is again vested in the original owner until the statutory notice has been served. The six months thereafter has expired 79 . 198. Period of Redemption. It is competent for the legislature to shorten the period of time for sale or redemption from the time specified in the statute under which the taxes were assessed. The pro- ceeding is essentially in invitium against the delinquent tax- payer, between whom and the state there has been no agree- ment as to the period of redemption 80 . Statutory Provisions. C. L. 3897, as amended by Act 262 of Public Acts of 1899 : "Any person owning any of the lands sold as aforesaid, or any interest therein, may, at any time before the first Tuesday in May in the year following such sale, redeem any parcel of such lands, or any part or interest in such lands, by showing to the satisfaction of the county treasurer or auditor general that he owns 76. Muirhead v. Sands, 111 Mich. 352; Ackin v. Pillen, 136 Mich. 487. Mich. 682; Allen v. Cowley, 128 77. Stoddard v. Prescott, 58 Mich. 530; Hickey v. Rutledge, Mich. 542, 546. 136 Mich. 128. 78. Paine v. Boynton, 124 80. See 215, post, Muirhead Mich. 194; Skinner v. Grace v. Sands, 111 Mich. 487, 492; Church, 54 Mich. 143. Baldwin v. Ely, 66 Wis. 171; 79. Barcher v. Trembley, 140 Negus v. Yancey, 22 la. 57. . TIIK SAI I'. AM) ITHl II \~ !5 only that part or interest in the same which he pro- poses to redeem, by paying to the county treasurer or auditor general the amount of the sale of the parcel of land, or the portion thereof wished to be redeemed, and interest thereon from the date of such sale. Upon payment of the redemption money and interest thereon at one per cent per month or fraction thereof to the county treasurer as aforesaid, "a redemption certificate is issued." C. L. $tf'J59, as amended by Act :>()4 of Public Acts of 1899 ; Provides that no writ of assistance or other process for the possession of any land by virtue of a tax deed until six months after there shall have been filed with the county clerk proof of service of the notice of purchase upon the persons entitled thereto. C. L. 3960, as amended by Act 204 of the Public Acts of 1899; Provides, that any grantee or grantees of the last recorded deed or mortgage of the premises in question, or their assignees of record at the time of giving the notice, or any executor, administrator, heir, trustee or guardian of such grantee, mortgagee or assignee, as provided in 140, supra, shall be entitled to receive a conveyance of the property at any time within six months after service upon them in the man- ner provided by the act, of notice of such tax pur- chase, upon payment to the tax purchaser of the amount paid for such purchase, together with 100^ in addi- tion thereto, and the costs of giving such notice, ana the further sum of five dollars for each description. It further provides that a reconveyance to a mortgagee shall not operate to convey title, but that mortgagee shall have an additional lien for the amount so paid. There is no redemption at all under the charter of the > l'. THE LAW OF TAXATION 280 city of Detroit, after the year provided for has expired 81 . The state may sell its bids before the period of redemption expires, at private sale, as this is a matter in which the individual is not concerned 82 . Where state tax lands are sold for delinquent taxes and at the same time they are sold as state tax lands, the entire sale is subject to re- demption 83 . The purchaser, on redemption, is entitled to 100<# upon the purchase price to the state, and also the same percentage upon accrued taxes paid at the time of purchase 84 . While lands are held by the state upon its bid, they cannot again be offered for sale for taxes of subse- quent years ; but they may be if the state assigns its bid 85 . A purchase of state tax lands by the original owner is in effect a payment and redemption of the tax. This is, in effect, a revivor of the right to redeem which had once expired. Inasmuch as such a purchase is a redemption, it is immaterial whether or not the deed issued was legal ; the tax lien is destroyed and will not be revived by show"- ing that the sale was void, as for the non-payment of back taxes. The auditor general, therefore, would have no right to cancel such deed and again offer the property for sale. The reason for this holding is, that it was the selling officer's duty to have informed such owner and purchaser of these back taxes ; and that, the owner having been misled by this lack of the proper performance of the officer's duty, will be protected in his attempt to clear up the tax liens 86 . The auditor general is required to transmit to the several 81. Schneider v. Detroit, 135 of redemption valid. Mich. 570, construing 173, 179, 84. Cheever v. Flint Land 181 of the Charter of 1883. Co. Lt., 134 Mich. 604. 82. Muirhead v. Sands, 111 85. 61, Act 206, Public Acts Mich. 487, 493. of 1893; C. L. S3884 ; Connecti- 83. Monaghan v. Auditor cut, etc.. Ins. Co. v. Wood. 11. "i General, 136 Mich. 247: Reed v. Mich. 444. Auditor General. 146 Mich. 208. 86. Hoffman v. Auditor Gen- holding the six months period eral, 136 Mich. 689, 691. Till-: S.M.K AM) I'l K( IIASKKS c.unty treasurers a statement of all lands in his county still held by the state on its hid, and unredeemed. Th statute is directory, merely for the convenience of the county treasurers. It was not intended to give the land owner any greater rights 87 . Neither the lands IK Id mi st;' bids, nor the list of state tax lands, are required to be pub- lished 88 . Where two parcels are sold as one, though owned by different persons, it affords no ground for setting the sale aside; but either party may redeem his interest until the May 1st following the sale. Thereafter, but before the expiration of the six months notice given by the purchaser at the tax sale, he must redeem the entire parcel conveyed ; he cannot redeem the portion alone which he may have owned 89 . The period of redemption provided in 140. 141 of the Tax law, are contemporaneous and must be con- strued together ; therefore, an owner of land has six months after proof of the service of the statutory notice has been filed with the country clerk, in which to redeem 90 . A pay- ment takes effect at the time it is received by the county treasurer or auditor general, and not at the time it was mailed. Therefore, where a payment is mailed before the period of redemption expires, but is not received until after that period expires, it cannot be received 91 . When the necessary sum has been deposited with the register of the court, after notice of tax purchase, and such money is paid to the wrong holder of a deed, such erroneous payment will save the land from forfeiture to the holder of the legal tax deed. The owner, however, will be required so pay. the 87. C. L. 3901; Garner v. Mich. 414: Adkins v. Pillien. 13r> W.illacc, 118 Mich. 387. Mich. 682: Escanaha Timber 88. Garner v. Wallace. 11R Land Co. v. Rusch. 147 Mich. Mich. :ix7. 619; Holmes v. Loud. 149 Mich. 89. Kennedy v. Auditor 410. (M-iicral. 134 Mich. 534. 91. Paine v. Boynton. 124 !o. Pike v. Richardson, 13 Mich. 194. 197. 198 THE LAW OF TAXATION 282 valid tax deed holder his purchase price and the statutory penalties. The rights of the holder of the tax deed are based upon the provisions of a revenue statute, the general principle and purpose of which is to secure, by forced con- tributions, the funds required for the government. If these contributions are not made, the property of the citizen may be sold for their collection. Such a sale may be made in- effectual in the hands of the purchaser, after notice of pur- chase, by payment to the register, as provided by statute. It is the act of payment, in proper season, of a proper amount, to a designated officer, which operates to discharge the land 92 . The statute enumerates who may redeem from a tax purchase, viz. : "Any grantee or grantees under the last recorded deed in the regular chain of title, or under tax deeds to such lands, or any mortgagee or mortgagees named in all undischarged recorded mortgages, or any assignee thereof of record at the time of giving said notice, or any executor, administrator, heir, trustee or guardian of said grantee, mortgagee or assignee." It will be noticed that a number of interested persons are omitted from this list, such as vendees in land contracts, grantees and assignees not of record when the notice is given, and persons whose interest in the land sold is not of record and who do not derive their title through heirship. The court has several times intimated that any person having an ownership in the land was within the spirit of the statute and ought to be 92. Act 236 of Laws of 1903, holder of the illegal tax holder. 141; Miller v. Steele, 146 Mich. After the six months' notice had 123. In this case, the auditor expired, the holder of the legal general had erroneously sold tax deed filed his petition for a the same parcel twice, to differ- writ of assistance. The for- ent purchasers. Both gave the feiture was denied, but the statutory notice. The owner owner was compelled to pay paid the correct amount to the over again the purchase price register, who paid it over to the and penalties. 283 THE SALE AND PURCHASERS 199 entitled to redeem; but it has not directly passed upon the question 93 . 199. Sale or Redemption For Less Than Taxes Due. There have been several provisions allowing real estate returned delinquent for a series of years, to be sold for less than the accumulated taxes and charges. C. L. 1090, permitted such lands to be sold for what they would bring after being returned delinquent for five years. The loss was home by the state" 3 * It is immaterial that these taxes were reassessed; as in this respect they are to be treated as of the year they were first placed upon the roll 94 . It is competent for the legislature to allow redemption by the owner at a less penalty than was provided in the act under which the tax was assessed 95 . The legislature may shorten the time of redemption existing when the tax was levied. There is no contract existing between the state and the tax payer as to the time he may redeem. The proceeding t > 93. In Jackson v. Mason, 143 phrase, "chain of regular title," Mich. 355, the court raises a see 403, post, query as to whether or not the 93a. Auditor General v. Mn- vendee in a land contract, of roe Board, 36 Mich. 70; Auditor record, was not entitled to General v. Saginaw Co., 62 Mich, notice. In Jakabo.wski v. Audi- 579, holding Act 160 of Laws of tor General 144 Mich. 46, it is 1869 prospective, and the loss held that the six months limi- occasioned to he the loss of tations against assailing the tax the state; Haines v. Saginaw deed, after service of the statu- Co., 99 Mich. 32; Auditor Gen- tory notice, do not apply to the eral v. Ottawa Co., 7f Mich, holder of an unrecorded con- 295; Auditor General v. Shia- tract of sale, not served with wassee Co., 74 Mich. 536; Audi- such notice. In Griffin v. Jack- tor General v. Midland Co., 84 son, 145 Mich. 23, 27, in dis- Mich. 121. cussing who were entitled to 94. 95 of Act 195 of Public service, the court says: "We Acts of 1889. Auditor General do not mean to intimate that v. O'Conner, 83 Mich. 461. one in privitv with the person 95. Flint, etc., Ry. v. Sag- required to be served may not inaw Co. Treasurer, 32 Mich. have the right to repurchase." 260. As to the construction the 200 THE LAW OF TAXATION collect taxes is essentially in invitium, and the proceeding on the sale of the land is 'a remedy for the delinquency of the tax payer. The law affecting the remedy is in such cases subject to amendment, even though the time fixed for redemption be shortened 96 . A redemption of part of the premises sold, where it cannot be ascertained what interest was redeemed, will justify the auditor general in refusing to execute a deed of the remaining premises 97 . Where the statute permits it, a tenant in common may redeem his in- terest from a tax sale by paying his aliquot share of the tax 98 . Where several parcels are assessed as one, and an arbitrary portion of the tax is received for one parcel, the sale of the balance, under the old procedure, is invalid". 200. Refunding of Taxes. By Owner. The repayment of taxes paid by a defeated tax title holder depends upon the statute in each case. Unless pro- vided by a statute, such a holder of a void tax title loses what he has paid. The statute has provided that when such a holder is defeated in an action of ejectment, the payment of such taxes as the holder of the void tax title paid, is a condition precedent to entry of judgment. This provision is constitutional 1 . This provision applies to lands bid in by the state where the state executed a deed to the purchaser, whether they were purchased at the annual tax sales and their bids subsequently ripened into titles, or whether they were purchasers from the state of the titles bid in by it. 96. Muirhead v. Sands, 111 99. Wyman v. Baer, 46 Mich. Mich. 487 491; Baldwin v. Ely, 418. 66 Wis. 171: Negus v. Yancey, 1. H. S. 1167; Beard v. Shar- 22 la. 57. rick, 67 Mich. 321; Sinclair v. 97. Kneeland v. Auditor Learned, 51 Mich. 335- Connecti- General, 113 Mich. 63. cut, etc., Ins. Co. v. Wood, 115 98. Holbrook v. Treasurer Mich. 444, 453; Croskery v. of Detroit. 8 Mich. 14. Pusch. Till. SALE AND IT Ri'H. \SERS i :.'< The title must be adjudged against the defendant before he can enforce a lien upon the premises for the taxes paid, and the right to prosecute or litigate the claim for subsequent taxes is postponed until the rendition of judgment, and then a supplimentary proceeding must be instituted on the equity side of the court. The statute of limitations does not apply to this lien, since at any time when a plaintiff has recovered in an action of ejectment, the defendant may still have a lien upon the land for legal taxes 2 . Under the late tax law, the money shall be refunded if the sale has been in contravention of the provisions of the tax law 8 . Under this provision a purchaser need not wait to be de- feated in an action, but may set up the illegality of the sale and compel the auditor general to refund the money paid, by mandamus 4 . So, also, as a condition precedent to setting the decree aside on a petition, the owner will be required to refund the taxes paid 5 . But where the holder of the tax title has entered the premises without giving the statutory notice, he is a trespasser, and cannot recover either his pur- chase price, or taxes paid, or the value of his improvements made 6 . The owner will not be compelled to refund a void purchase, where he has subsequently made a valid purchase of the same tax 7 . Where an owner pays to the register of the court the amount demanded by him, to redeem a tax 2. Tillotson v. Circuit Judge, 122 Mich. 151. !>7 Mich. .~>8.-, r>88: Ellsworth v. 6. Aztec Copper Co. v. Audi- Krecman. 43 Mich. 488; Weimer tor General, 128 Mich. 515, 620: v. Porter, 42 Mich. 569; Balfour Connecticut, etc., Ins. Co. v. y. Whitman, 89 Mich. 202. where Wood. 115 Mich. 444, 454. it is held that a grantee under 6. Corrigan v. Hinkley, 125 a warranty deed can only re- Mich. 25; Cook Land Co., etc., cover for legal taxes paid, wfierc v. McDonald, 15 L. N. 953. his deed is defeated. 7. Miller v. Meilstrup. 144 3. Sub. 3, 898; C. L. 3921. Mich. 643. 4. Gurd v. Auditor General. 201 THE LAW OF TAXATION 286 purchase, the owner will be protected through the register, by mistake demands and receives an insufficient amount 8 . 201. Cumulative Tax Titles. Until provided by statute, no holder of a tax title could set up a number of tax titles against the original owner, acquiring such titles by permitting the land to be sold for delinquent taxes after taking possession of the same. The reason of this rule has its foundation in the obligation of a person to pay taxes on property in his possession and which he professes to own. Under the reason of this rule, a per- son may bid in a second tax title before the period of re- demption has expired on the first, and rely upon both, since he was under no obligation to pay any taxes until some title had ripened*. 8. O'Connor v. Gottschalk, leaving the sum specified in the 148 Mich. 450, following prin- notice With the register of the ciple in 153, supra, as to a county, acts as a payment, certificate being payment, Es- 9. Tweed v. Metcalf, 4 Mich, canaba Timber Land Co. v. 579. 587: Lacey v. Davis, 4 Rusch, 145 Mich. 1, holds that Mich. 140. CHAPTER XII. THE DEED AND ITS INCIDENTS. 5202. Execution 203. Recitals !L'04. Description. 5205. Validity 5206. Operation. 5207. Title that Passes. 5208. Effect of Tax Sale under Old Law. 5209. Presumptions from Deed. 5210. Who May Attack Deed. 5211. Lien by Void Tax Title Holder. 5212. Reimbursement of Defeated Purchaser. 5213. Reimbursements for Improvements. 202. Execution. The tax deed may be executed by the deputy auditor gen- eral, as deputy 1 . Inasmuch as the statute authorizing the sale of lands for delinquent taxes is in derogation of the common law, it will be construed strictly; and unless it ex- pressly authorizes the giving of a deed, the authority so to do will not be inferred from a power to sell 2 . 203. Recital. It is unnecessary that the deed recite the various pro- ceedings, as such recitals would not be evidence in any 1. Westbrook v. Miller, 56 fore the period of redemption Mich. 148, 151; Drennan v. has expired will be held abso- Herzog, 56 Mich. 467; Fells v. lutely void, Fitschen v. Olsen. Harbour, 58 Mich. 49. 15 L. N. 1010 Mich ; 2. Sibley v. Smith, 2 Mich. Morse v. Auditor General, 143 487, 490; Lemon v. Chunn, 1 Mich. 610. Blackf. 336; a deed executed be- THE LAW OF TAXATION 288 case, unless made so by statute. Where the form of the deed is not prescribed, it need not recite more than the capacity in which the auditor general acted 3 . Any convey- ance that conforms to the statutory requirements of a quit claim deed will be sufficient to pass the title of the state. No greater formality is required in making a deed by the state than between individuals 4 . In determining whether the deed is sufficient it may be construed in connection with the entire tax record 5 . Where a tax deed has been lost, and a second deed is issued in its place, the loss or destruction of the first deed together with its date if pos- sible, must be recited in the second deed. Unless the new deed contains such statutory requirements, it will constitute no evidence of title 6 . A recital in a tax deed that a sale was made on a certain date will not preclude the purchaser from showing that it was made at a different dat^'. 204. Description. The description of lands for taxation has been heretofore discussed 8 . It is not, however, necessary that the descrip- tion in the deed agree with the description on the roll ; part of the land may have been redeemed, or the tax paid thereon 9 . If the description in the tax deed is bad, the deed is void; and the party holding the deed will not be entitled to recover for his improvements 10 . Where there is a conflict between the tax record and the certificate of sale, the former will prevail. Should the deed purport to con- 3. Sibley v. Smith, 2 Mich. 7. Lacey v. Davis, 4 Mich. 487, 497. 140, 155. 4. Dawson v. Peter, 119 8. See Description of Land Mich. 274, 279; Mann v. Carson, on roll. 81-84. 120 Mich. 631, 637. 9. Amberg v. Rogers, 9 5. Garner v. Wallace, 118 Mich. 332, 337. Mich. 387, 391. 10. King v. Potter, 18 Mich. 6. Burroughs v. Goff, 64 134, 140. Mich. 464, 468. THE DEED AND ITS INCIDENTS 205 vey more land than was sold, it will not be entirely void, but may be corrected by a decree of the court 11 . Where one tax deed conveys an undivided three-fourths of certain premises, and another an undivided one-half of the same premises, it does not necessarily follow that the entire title has been conveyed 12 . 205. Validity. It is beyond the power of the legislature to make a tax deed conclusive evidence of title in fee simple 13 . The statute of necessity determines the nature of the title conveyed by a valid sale and deed, viz., an absolute title in fee subject to subsequent taxes. The intent of such a provision must be deemed to be that such deed should be evidence of title in fee simple after the right to give the deed has been shown by a valid decree. The deed itself is not, under such a provision, prima facie evidence of a conveyance of title 14 . Declaring tax titles conclusive is no new thing in legisla- tion. The legislature has repeatedly undertaken to give greater force to tax deeds than could legally be sanctioned. But the attempt, though unsuccessful, was never supposed to affect the whole tax law 15 . As early as 1827, the Terri- torial legislature provided that after a period of two v^r-s for redemption, the treasurer should execute a deed to the purchaser which should give an absolute estate in fee sim- ple, and be conclusive evidence that the sale was regular 18 . The legislature also provided that no one should question 11. Knecland v. Hull, lift 15. State Tax Land Cases. Mich 55. 54 Mich. 367; Grossbeck v 12. Laird v. Coach, 112 Mich. Seeley, 13 Mich. 329: McKinnon r,2R. v. Meston, 104 Mich. 642; Ball 13. See 210. post. v. Ridge Copper Co., 118 Mich. 14. Taylor v. Deveaux, 100 7; O'Connor v. Carpenter. 144 Mich. 581; Dawson v. Peter, 119 Mich. 240. 274, 275. 16. Laws of 1827, p. 370. 205 THE LAW OF TAXATION 290 the validity of a tax deed unless such person's title was ac- quired from the state or the United States, thus attempting to make it impossible for a party holding by adverse posses- sion, or whose chain of title was defective, from question- ing or opposing a tax deed. Titles in this state are sup- posed to have been granted or originally recognized and confirmed by the United States or by this state ; and it must follow that when one produces such evidence as raises a presumption of title in him, according to the settled rules of law, this presumption must be sufficient to bring the case within the protection of the statute, because title in a private person supposes a grant from the state or sovereign power. When the law raises such a presumption, this nega- tives, because inconsistent with, any supposition that tin- government has never conveyed, or that having conveyed, some other person holds under its grant. This view leaves ample scope for the operation of the statute in cases where it would be entirely equitable. A mere intruder or tres- passer on unoccupied lands might well be precluded from contesting any prime facie title of another, and so might one who should attempt to defend under an outstanding title with which he is in no way connected. It cannot be supposed that the statute was intended to go further than to embrace these cases and others resting upon similar rea- sons. It certainly cannot embrace the title of one who shows a prime facie title, sufficient under common law rules 17 . Inasmuch as the right of the state to sell is founded solely upon the non-payment of the tax, such right cannot 17. C. L. 1871, 1130; H. S. such a statute could be invoked 1166; Gamble v.'Horr, 40 Mich. against the purchaser of logs; 561, 564; Maxwell v. Paine, 53 Raber v. Hyde, 138 Mich. 101. Mich. 30; Rogers v. White, 68 holding that the statute applied Mich. 10; Hoffman v. Loud & as against the owner of logs; Sons, 138 Mich. 5, holding that Day v. Alverson, 9 Wend. 223. '"'I THE DEED AND ITS INCIDENTS 206 exist whenever the tax has been paid, and a deed would convey no estate or title whatever under these circum- stances 18 . A tax deed for taxes of several years is valid if all of the taxes for one year of the included years is valid 19 . Where one tax deed has been issued, void for the non-payment of accrued taxes, a valid deed based upon sub- sequent taxes, may be issued. No lien exists for the first taxes until the void deed is set aside 20 . Statutory Provision. C L. 3895 provides, for the giving of a deed by the auditor general or his deputy unless the sale for taxes shall have been redeemed or annulled as provided by law, that "Such deeds shall convey an absolute title to the land sold, and "be conclusive evidence of title, in fee, in the grantee, subject, however, to all taxes assessed and levied on such lands subsequent to the taxes for which the same was bid off." 206. Deed. Operation. One in possession of land claiming title, unless with statutory permission, can acquire no additional interest by suffering the land to be sold for taxes, if such taxes were a lien at the time he took possession. It is immaterial that the taxes were assessed to some other person as non-resi- dent 21 . Though a person cannot acquire a cumulative title to land by allowing it to be sold for taxes after he has 18. Rayner v. Lee, 20 Mich, upon the validity of a tax title. 384: Rowland v. Doty, Har. Ch. 19. Hunt v. Chapin, 42 Mich. 3, 8; Waldby v. Callender, 8 24. Mich. 430; Quinlan v. Rogers. 20. O'Connor v. Auditor 12 Mich. 168. These last two General, 127 Mich. 553. cases hold that it is unconsti- 21. Lacey v. Davis, 4 Mich, tutional to provide that a circuit HO, 153. court commissioner may decide S 200 THE LAW OF TAXATION J!f> taken possession, he may have the benefit of a purchase made before the period of redemption of the first purchase has expired 22 . A tax deed, though void, creates color of title, and is admissible to show the extent of the holder's claim 23 . The deed does not relate back to the sale, or expiration of the period of redemption, so as to make par- ties upon the land trespassers before the deed actually issued, though it might support an action for waste 24 . The right to such a deed cannot be set up as a defense before the deed actually issued 25 . Such a deed will, however, re- late back for the purpose of doing substantial justice, as treating a payment by an attorney as though made by a client, though the deed is not transferred to the client at the time 26 . A tax lease, given under the charter of Detroit, begins to run when the period of redemption expires 27 . A valid tax deed cuts off all prior liens for taxes held by third parties 28 . The placing of tax deed upon record is such an assertion of hostile title that ejectment will lie 29 . When the auditor general issues a deed before the period of re- demption has expired, such deed is void on its face. The lapse of time will not make it valid 30 . So, when the auditor general issues a deed for a less amount than is required by statute, the deed will be void 81 . 22. Tweed v. Metcalf, 4 27. Murphy v. Campau, 3.1 Mich. 579, 587. Mich. 71. 23. Hoffman v. Harrington, 28. Robbins v. Barren, 32 28 Mich. 90. Mich. 36. 24. Hess v. Griggs, 43 Mich. 29. La Coss v. Wadsworth, 397; Hemingway v. Drew, 47 56 Mich. 421; Hoyt v. Southard, Mich. 554; Busch v. Nester, 62 58 Mich. 432; Goodman v. Nes- Mich. 281; Sherman v. Fisher, ter, 64 Mich. 662; Tillotson v. 138 Mich. 391. Webber, 96 Mich. 145. "25. Boardman v. Boozewin- 30. Griffin v. Jackson, 145 26. Connecticut, etc., Ins.' Co. Mich. 23. kel, 121 Mich. 320. 31. Monaghan v. Auditor Gen- v. Bulte, 45 Micfi. 113. eral, 136 Mich. 247. THE DEED AND ITS INCIDENTS '.'O7 207. Title That Passes. Every tax sale under our laws is a sale of the complete title, and, if legal, when it matures takes precedence of all other titles 32 . When the lien given by the statute is fore- closed by the court in chancery, the evident purpose is to convey to the state or to the private purchaser, the abso- lute title in fee; a title which completely destroys the orig- inal one. It is of no significance that the state does not bid in the land for speculative purposes, or that it acquires no possessory rights therein, or that it remains liable to taxation for successive years. When the lien is foreclosed, the land sold, and the time of redemption expired, the state or the purchaser owns the complete title of the land, or it owns nothing. The law may preserve the lien in case the title is held void, but that does not affect the quantity of the land conveyed, which is the entire, or nothing 33 . Under the charter of Detroit, the controller may bid off lands within the city offered for delinquent taxes, and cer- tificates be issued by him to the corporation. Such a sale and purchase by the city vests the title in the municipality : the city authorities are under no obligation to allow any redemption after the year provided by the charter 34 . As between the state and the original owner, the title to lands sold for the non-payment of taxes becomes ar-so!"te i" 1 th state on a regular sale. It is true that as to the original owner there is a subsequent right to redeem, upon a sale of the state's interest, upon payment of double the amount 32. Westbrook v. Miller, 64 v. Wood, 115 Mich. 444, 448. Mich. 129; Toolan v. Longyear, 34. Gray v. Detroit, 113 144 Mich. 55; Sinclair v. Learned Mich. 657; Schneider v. Detroit, 51 Mich. 344; Dawson v. Peter. 135 Mich. 570; construing 119 Mich. 274; Taylor v. De 585173, 179, 181. of Charter of veaux, 100 Mich. 581. 1883, of Detroit. 33. Connecticut, etc., Ins. Co. 207 THE LAW OF TAXATION .".'1 of taxes, and costs, and a penalty, after notice. Where the original owner, before having received the notice of tax purchase, and consequently during his period of re- demption, conveys the premises to the tax title purchaser, the tax title and the original title merge; and an adverse occupant will be entitled to pay for his improvements. Such claim will not be out off by the tax title 35 . Where, how- ever, the purchaser of a subsequent tax title acquires the original title, a prior tax purchaser cannot claim that as to himself his tax title cut off the original title, but that as to the subsequent tax purchaser the original title merged with that title, in effect, destroying the subsequent title and leaving the prior tax title valid. If the original tax title was destroyed by the prior tax purchase, it was de- stroyed as to both tax purchases. In other words, a prior tax purchaser cannot set up the doctrine of merger against a subsequent tax purchaser 36 . The state holds title to these lands in trust for the state, county and township, in propor- tion to the several taxes due 37 . A purchaser takes all of the title; but if the deed from the state conveys a greater interest than the state had to sell, that deed is void, but the purchaser will be entitled to a new deed for the correct interest that was sold 88 . When the state gives a tax deed, it parts with all of its title and cannot thereafter assert a lien for taxes prior to those sold, unless such lien is ap- parent to the purchaser. This rule is one of necessity since 35. Hickey v. Rutledge, 136 Mich. 643. Mich. 128; Robbing v. Barren, 37. Alcona Board v. Auditor 32 Mich. 36; Allen v. Cowley, General, 136 Mich. 130. 128 Mich. 530; Boucher v. Trem- 38. Harding v. Auditor Gen- bley, 140 Mich. 352. eral, 140 Mich. 646. 36. Miller v. Meilstrup, 144 -'.'" TIIK DKKD AM) ITS 1\C1I>KXTS j ^08, 209 individuals would be loath to purchase tax lands if they could not be certain what such lands would cost them". 208. Effect of Tax Sale. Old Law. Prior to the adoption of the law foreclosing a tax lien in chancery, it was held that all material requiicments of the tax laws must be complied with. The lawful power to sell in these cases is a power to sell so much only as is sufficient to pay such taxes as the law has authorized. It was not a case of mere excess in the execution of the power by the officer intrusted with it; for he could not, if he would, sell for the legal taxes alone. He is bound to sell for the amount reported due, however much is illegal. Any statute which attempted to provide for a sale of lands for illegal taxes was held unconstitutional 40 . The statute does not limit the amount of land that may be sold for taxes 41 . 209. Presumptions From Deed. Under the code of 1827, the deed was only presumptive evidence of the regularity of the sale. The land owner could rebut this presumption. Under that law the deed was jiot printa facie evidence of the regularity of the taxes, but only of the regularity of the sale 43 . Owing to the strict construction of that statute by the courts, and the constitutional bar against taking private property without giving the owner an opportunity to be heard, the legisla- 39. Auditor General v. Clif- declared that the tax ;J of Public Acts of 1885 attempts to convert a tax lien into a mortgage, it is void, not being within the title of the act 59 . Under this act, the auditor general had the power to reimburse de- feated purchasers, sales under the act being held void 80 . In the absence of a statute transferring the lien of the state for taxes, a purchaser at a void sale acquires no lien on the property for his purchase price, nor for taxes sub- sequently paid. This rule is based upon the principle that taxes are not matters of contract and that only statutory measures are to be resorted to for their collection 8 x . Un- der 104 of Act 206 of Public Acts of 1893, a defeated purchaser could recover for his improvements, but not for his purchase price and money paid for taxes 8 *. Under Act 200 of Public Acts of 1891, there is no provision for reimbursing the purchaser where his deed is held void 63 . 57. Crane v. Reeder, 25 Mich. aside within the time prescribed 320; Ball v. Auditor General, in that law. 133 Mich. 521; Rice v. Auditor 59. Ball v. Busch, 64 Mich. General. 30 Mich. 12; Harding 338; Nester v. Busch, 64 Mich. v. Auditor General, 136 Mich. 657. 358, holding that law of 1889 60. Croskery v. Busch, 116 does not cut off refunding of Mich. 288. taxes provided by law of 1885. 61. Auditor General v. Bay 58. Nester v. Busch. 64 Mich. Co., 106 Mich. 662. 657; Wolverine Land Co. v. 62. C. L. 53927: Croskery v. Auditor General, 133 Mich. 666. Busch, 116 Mich. 288. holding that money should not 63. Ball v. Auditor General, be refunded, under tax law of 133 Mich. 521. 1869. unless the tax deed is set 212 THE LAW OF TAXATION :;i)M * Under the act of 1893 the auditor general cannot refund a tax if the land was subject to assessment 64 . This section, as amended in 1895, authorizes the refunding of the tax to the defeated purchaser; and the owner of the deed may set up the fact of the illegality of the sale and compel repayment by mandamus 65 . The purchaser, however, is not entitled to reimbursement when he enters the premises without giving the six months notice required by Act 229 of Public Acts of 1897 66 . The equity court will, however, as a condition precedent to setting aside a void tax deed, order that the defeated purchaser be reimbused 67 . A former statute has required a tender of all taxes paid sub- sequent to the issuing of the tax deed as a condition precedent to an entry of judgment in ejectment against the tax title holder 68 . This statute, passed in 1865, required the court to determine, the amount of taxes paid, but re- lated only to tax titles acquired after its passage 69 . This statute, providing for the recovery of taxes with interest at the rate of 25%, is broad enough to cover tax titles purchased from the state. The proceeding to enforce this lien is ancillary to the judgment and may be by motion. The statute of limitations does not apply to this provision, and rights acquired thereunder are not divested by the law of 1882 70 . When a purchaser has been refused a writ of 64. C. L. '3921; 98 of Tax Wood, 115 Mich. 454; Jenkinson Law of 1893; Flint Land Co. v. v. Auditor General, 104 Mich. Auditor General, 133 Mich. 542. 34; McGinley v. Mining Co., 121 65. C. L. 3896; Gurd v. Audi- Mich. 89. tor General, 122 Mich. 151; 68. H. S. 1208; Beard v. Auditor General v. Patterson, Sharrick, 67 Mich. 321; Sinclair 122 Mich. 39. v. Learned, 51 Mich. 335. 66. Corrigan v. Davis, 125 69. Shaw v. Morely, 89 Mich. Mich. 125. 313; Philips v. New Buffalo 67. Aztec Copper Co. v. Twp., 68 Mich. 217. Auditor General, 128 Mich. 615; 70. Tillotson v. Circuit Judge Connecticut, etc.. Ins. Co. v. 97 Mich. 587. 301 THE DKK|> AND ITS 1NC1D1 \ .' 1 '.', assistance in a proceeding to which the auditor general was not made a party, the state will not be compelled to refund the purchase price when the writ was refused 71 . A pur- chaser bought certain lands for taxes of 1891, 1802, 1- and lMi.~>; under the statute ;.N t<> the tax of 1 s '.'',?, he was bound to pay all subsequent taxes. These tax deeds being held invalid, he was refused reimbursement on the ground that he was entitled to a new deed for the tax of 189:3 ; as that deed would be good, he was not entitled to reimburse- ment for the other years because it was his duty to pay them on account of his purchase of the 1892 tax 7 *. How- ever, under 84, 141, the tax purchaser may demand re- payment of invalid taxes paid by him, as a condition precedent to reconveyances 7 *. When a tax sale is held void, the court may also order the repayment of taxes paid by the defeated purchaser subsequent to this purchase. Such taxes will constitute a lien upon the property 74 . Where land is redeemed from a tax sale, the purchaser is entitled to repayment; but if he delays enforcing such re- payment for over six years, the statute of limitations will run against him 70 . 55213. Reimbursement. Improvements. If the description of the land is erroneous, the purchaser is not entitled to compensation for his improvements 76 . To authorize compensation for improvements, the possession must be held solely by the tax title. The legislature having given the privilege of ejectment in certain specified cases 71. Newton v. Auditor Gen- 74. Sanborn Co. v. Aiston, era!, 131 Mich. 547. 153 Mich. 456. 72. Harding v. Auditor Gen- 75. McRac v. Auditor Gen- eral, 140 Mich. 646. eral, 146 Mich. 594. 73. Haney v. Miller. 15 L. N. 76. King v. Potter, 18 Mich. 592. 134. 213 THE LAW OF TAXATION :J02 only, have, by this specification, just as clearly shown their intention to exclude every other class of cases from the operation of the statute as if they had expressly so declared. It does not apply to a combined holding under a tax deed and a sheriff's deed 77 . In order to recover for improve- ments, the occupancy must be such as would constitute adverse possession 78 . The claim for improvements must be filed in the case, and cannot be made after judgment but before a second trial 79 . Neither does the statute apply to tenants in common holding undivided interests 80 . Where the owner of land purchases tax titles, a third party being in possession and claiming by adverse possession an insuf- ficient time to give title, the owner will be obliged to pay for the improvements made on recovering such posses- sion 81 . A tax purchaser who enters the land without giv- ing the statutory notice, is a trespasser, and cannot recover either the purchase price he paid, nor for his improve- ments 8 *. 77. C. L. 1857, 4603, C. L. Mich. 440. 1871, 1131, C. L. 3927 ; King 81. Boucher v. Trembley, 140 v. Harrington, 18 Mich. 213; Mich. 352. In this case plaintiff Sands v. Davis, 40 Mich. 14, 18; purchased the tax title, and Gillman v. Riopelle, 18 Mich. without giving the notice of tax 145. sale under C. L. 3961, afterwards 78. Sleight v. Roe, 125 Mich, purchased the original title. 585. 82. Corrigan v. Hinckley, 125 79. Newaygo Co. Mfg. Co. v. Mich. 125; Huron Land Co. v. Eichtenaw, 81 Mich. 416. Robarge, 128 Mich. 686; Cook 80. Sands v. Davis, 40 Mich. Land Co. etc. v. McDonald, 15 14, 18; Martin v. O'Conner, :J7 L. N. 953. CII.MTKK XIII. STATUTES AND ESTOPPEL. 214. Limitations. Deed Conclusive. 1215. Limitations in Re Tax Deeds. 5216. Limitations in Re State Homestead Lands. 9217. Statute of Limitations, Accounts. 9218. Construction of Statutes. 211). Legalizing Acts. 9220. Legislative Allowance of Claims. 221. Retroactive Statutes. 9222. Healing Acts. 9223. Healing Acts. When They do Not Apply. 9224. Title of Acts. 9225. Estoppel. 9226. Estoppel on Drains. CROSS-REFERENCES. Construction of Drain Statutes, 9297. Drain Laws, 99301 -?.03. Healing Acts, 99300, 375. Saving Clauses, 9298. Validating Vts, 1209. 214. Limitations. Deed Conclusive. Unless specially provided by statute, the statute of limi- tations does not begin to run, or apply, in favor of a tax title holder who was in possession under some other claim, whatever may have been its nature, at the time of obtain- ing a tax title 1 . The provision that a deed shall be conclu- sive evidence of title in fee simple, applies only in case the court obtained jurisdiction to enter the decree of sale. The legislature has attempted to have questions in regard to the validity of taxes settled before sale, by adjudication. The 1. Gill man v. Riopelle. J8 holder was in possession when Mich. 145, 164; the tax title he purchased the tax deed. 214 THE LAW OF TAXATION :j(J4 proceeding is a judicial one, and the first requisite is juris- diction of the person to be bound by the -decree. It was not the intention of the legislature to require judicial proceed- ings involving personal service of a subpoena for their foundation, and at the same time provide that the delivery of a deed under the decree shall effectually conclude the owner, whether the court acquired jurisdiction or not. The statute, of necessity, determines the nature of the title con- veyed by a valid sale and deed, viz., an absolute title in fee, subject to subsequent taxes. It is not within the power of the legislature to deny the right to defend against the tax deed 2 . The provision of 1858 authorizing proceedings be- fore a circuit court commissioner to test the validity of a tax title is unconstitutional 3 , and the further provision that A tax deed of record for two years shall be conclusive evi- dence of title, falls with it 4 . In so far as the statute de- clares that lands bid off to the state and not disposed of for five years, shall vest an absolute title in the state it is not a statute of limitations and is unconstitutional. One in possession of property cannot be compelled to institute proceedings against an opposing claimant 5 . A provision making a tax deed conclusive evidence of title in fee simple is not a statute of limitation, and is void. In any case, a statute of limitations applies only to sales made after the act takes effect*. A provision that attempts to make a tax title valid unless the legal taxes have been paid or tendered, is unconstitutional. The lawful power of the state is a power to sell so much only as is sufficient to pay such taxes 2. 3 H. S. 1170g6; present Mich. 168. statute C. L. 3895; Taylor v. 5. Case v. Dean, 16 Mich. Deveaux, 100 Mich. 581, 583. 12; Grosbeck v. Seeley, 13 Mich. 3. Waldby v. Callender, 8 329. Mich. 430. 6. Porter v. Van Dyke, 31 4. Quinlan v. Rogers, 12 Mich. 176. I".. STATUTES AND ESTOPPEL I .' 1 1 as the law authorized. The selling of land for taxes of which a part are illegal, is not a case of mere excess in the execution of the power by the officer intrusted with it; \- the sum demanded is so made up that he could not, if he would, have offered to sell for the legal taxes alone 7 . A provision that a tax title holder shall not be entitled to possession of the premises unless he pays or tenders a sub- sequent void tax title holder the cost of his tax title, is valid and equitable. It is analagous to requiring a party assail- ing a tax to pay what is legal 8 . Statutory Provision. C. L. 3895, being 72 of Act 206 of Public Acts of 1893, provides : "On presentation of such certificate of sale to the auditor general or his deputy after the expiration of the time provided by law for. the re- demption of land sold as aforesaid, the auditor general or his deputy shall execute and deliver to the purchaser, his heirs or assigns, a deed of the land therein described, unless the sale thereof shall have been redeemend or annulled as by-law provided, which deed shall be en- titled to record in the office of the register of deeds of the proper country, in the same manner and with like effect as other deeds duly witnessed, acknowledged and certified. Such deeds shall convey an absolute title to the land sold, and be conclusive evidence of title, in fee. in the grantee, subject, however, to all taxes as- sessed and levied on such lands subsequent to the taxes for which the same was bid off. The courts may, on application, put the purchaser in possession of the premises by writs of assistance. * * *" 7. Silsbee v. Stockle, 44 ' 8. Sinclair v. Learned, 51 Mich. 561, 569. Mich. 335. 345. (20) 215 THE LAW OF TAXATION 306 215. Limitations In Re Tax Deeds. The possession of land under color of tax title for the statutory period, bars the title of the original owner 9 . This possession will run against a state bid as well as against a private individual 10 . The statute runs whether the deed be good or bad ; in fact, there is no purpose or necessity of a statute of limitations if all tax deeds were valid 11 . The period of limitations does not begin to run until the holder of the tax title has had possession the statutory period which was in force when the sale was made. If there has been no occupancy of the premises by the original owner sufficiently long to give title by adverse possession, the holder of the tax title is not barred from bringing his action by any lapse of time unless there is express statutory authority to the contrary 13 '. The tax law of 1885, limiting the right of a tax title holder to five years in which to bring his action after the right of possession accrued to him, is a provision in limitation, and is not repealed by the tax law of 1899 13 . Act 128 of Laws of 1901 (143), is not a general statute of limitations as to tax titles, but applies only to title obtained through chancery proceedings in obtaining a writ of assistance 14 . The provision of this section, however, requiring an owner in possession to in- 9. See also 397 as to cancel- 599; Vier v. Detroit, 111 Mich, ing deeds by the auditor gener- 646. al, and 398 as to setting aside 11. Chamberlain v. Ahrens, 55 deed by the court. Perry v. Mich. Ill; Reilly v. Blaser, 61 Hepburne, 4 Mich. 165; Gros- Mich. 399; Pence v. Miller, 140 beck v. Seely, 13 Mich. 329. Mich. 205. 10. Cass Farm Co. v. Detroit, 12. Harrison v. Spencer, 90 139 Mich. 318; Harrison v. Spen- Mich. 586. cer, 110 Mich. 215; Chamberlain 13. St. Marys Power Co. v. v. Ahrens, 55 Mich. Ill; Schnei- Water Power Co., 133 Mich, der v. Detroit, 135 Mich. 570; 470. Flynn v. Detroit, 93 Mich. 590; 14. Briggs v. Guleck, 143 Leonard v. Detroit, 108 Mich. Mich. 457. 307 STATUTES AND ESTOPPEL stitute proceedings within six months after notice is un- constitutional. This is upon the principle that one who is himself in the legal enjoyment of his property cannot have his rights therein forfeited to another for failure to bring suit against that other within a time specified to test the validity of a claim which the latter asserts but takes no steps to enforce 15 . It would seem that the statute of limi- tations would begin to run from the time that a purch;iM-r has the right to demand a deed upon the theory that it was not the intent of the statute to put it in the power of the tax purchaser to postpone enforcing his rights at in* pleasure 16 . The general statute of limitation, C. L. 9714, does not limit the time in which a bill may be filed to quiet title. 66 of Public Acts of 1889, being 70 of the tax law of 1891, providing that no sale should be set aside after the purchaser had been in possession for five years, was limited to sales under the law of 1873. Section 73 of the tax law of 1893, C. L. 3896. is general in its terms. and applies to all sales 17 . The six months limitation to redeem, after sale by the state to a third party, is constitutional. It is intended as a measure of protection to the original owner, and he cannot complain 18 . Where two contiguous parcels of land are included in one deed acts of ownership on one parcel will show dominion over both tracts 19 . Statutory Provisions. C. L. :JS'.M5. as amended by Act 202 of Public Acts of 1899, being Tax law 73 : "No sale of any lands 15. O'Connor v. Carpenter. 14G Mich. 208, construing Act 144 Mich. 240; Grosbeck v. See- 229 of Public Acts of 1897; Icy, 13 Mich. 329. Monoghan v. Auditor General, "id. Palmer v. Palmer, 3fi 136 Mich. 237: John Duncan Mii-h. 487; in re demand notes. Land & Mining Co. v. Rusch, 17. Pence v. Miller, 140 Mich. 145 Mich. 1. 20." 19. Kingston v. Guck, 15 L. 18. Reed v. Auditor General, N. 998, where the property was 215 THE LAW OF TAXATION :5<>8 or deed made by the auditor general under the pro- visions of this act shall be set aside or annulled by any court of this state after the purchaser, his heirs or assigns have been in actual and undisputed possession of such lands so sold or conveyed for a period of five years from the date of such purchase of deed. * * *" C. L. 3902, passed in 1897, being Tax law 143, provided that every person properly served with the notice of tax purchase who neglected to pay the sum provided for tax redemption within the time specified, should be barred from questioning the validity of such tax title or deed thereafter. This section was held un- constitutional in Citizens Savings Bank v. Auditor General, 123 Mich. 511, because these provisions were broader' than the title of the act. The section was again re-enacted by Act 128, of 1901. H. S. 8698, limited the time to bringing an action 'to recover possession of lands held by or under tax titles to ten years after the right of action accrued. This act went into effect Dec. 31st, 1863. C. L. ^9714 limits the time to five years; it was passed in 1893. 66 of Public Acts of 1889, being 70 of the Tax law of 1891, providing that no sale should be set aside after the purchaser had been in possession for five years, was Land Commissioner v. Auditor General, 131 Mich. 147, 153. 115 of Act 153 of Public Acts of 1885, provides: "The right to recover possession of any land by any person claiming through or under any deed executed by the auditor general by virtue of the provisions of this act shall be forever barred by the actual, open, deeded by the state as two par- eels, and thereafter deeded by the grantee as one parcel. 30'J STATUTES AND ESTOPPEL '.M'. and continuous possession of any person claiming such land adversely to such tax deed for the period of five years after the execution of such tax deed : Provided, that if the person claiming through or under such tax deed for the period of five years shall have once taken actual and peaceable possession of such land by virtue of his deed, and shall have continued in such actual possession for five years next thereafter, then the pro- visions of this section shall not apply, but in such case he shall conclusively deem the owner in fee simple of such land." 116 "No person shall bring or maintain any ac- tion for the recovery of any land or the possession thereof, or make any entry thereupon, unless such ac- tion is commenced or entry made within five years after the right to make such entry or to bring such action shall have first accrued to the plaintiff, or to some person through whom he claims, when the de- fendant claims title tinder a deed made by the auditor general in pursuance to the provisions of this act." This is a statute of limitation and is not repealed by C. L. 9714. Acts No. 8 of Public Acts of 1899. No. 195 of Public Acts of 1889, No. 200 of Public Acts of 1891, did not repeal these provisions. St. Mary's Power Co. v. Water Power Co., 133 Mich. 470. 475. 216. Limitations In Re State Homestead Lands. The deed from the auditor general to the land commis- sioner is not prima facie evidence of title; nor is the state, by virtue of such deed, a purchaser of the lands deeded, within the statutes of limitation referred to in the preceed- ing section. Inasmuch as Act No. 84 of the Public Acts of 1903 establishes the time within which owners of the orig- 216 THE LAW OF TAXATION :>10 inal title shall begin proceedings against the state to re- cover lands held as state homestead lands, such action negatives the idea that the other provisions referred to are to be treated as applying to the state. The provisions of 131 of the tax law, with reference to homesteaders, do not apply to purchasers who do not actually reside upon the land even though they may inclose it 20 . A party who fraudulently procured lands to be set aside as homestead lands by permitting taxes to become and remain delinquent which it was his duty to have paid, cannot, in an action by the owner to recover such* lands, interpose the limita- tions applicable to these lands, where the owner tenders to the state the amount due on such back taxes. The auditor general and land commissioner should not be made parties to such a bill, however 21 . Statutes of limitation, similar to 127, have been sustained in other states; and it is there- fore a valid provision, and the determination cannot be as- sailed when the six months have expired 22 . This provision of limitation will not excuse laches which occurred prior to the setting the lands aside as homestead lands 23 . A delay of more than 90 days in filing the deed after the 20. See 53, supra, or desig- ting off of the lands is not a nation of homestead lands, judicial act, nor one in which Morse v. Auditor General, 143 the original owner has any in- Mich. 610; People v. Christian, terest. Griffin v. Kennedy, 14 144 Mich. 247, sustaining consti- L. N. 312. The bar is absolute, tutionality of act. the transfer cannot be ques- 21. Dixon v. Ludington, 130 tioned by bringing an action of Mich. 269. replerin for timber cut after the 22. State Land Commission- period of limitation had expired, er v. Auditor General, 131 Mich. Jackson Lansing R. Co. v. Solo- 147, 153; Jackson, Lansing & S. mon Lumber Co., 146 Mich. R. Co. v. Solomon Lumber Co., 204, the fact that the land was 146 Mich. 204. This is upon the deeded by forties instead of theory that the original owner one entire description; is main- has lost his title to the state tained. before the lands were set off; 23. Owens v. Auditor Gencr- and that consequently, the set- al, 147 Mich. 683. Ml STATr TKS AMi I Slitl'THI. 210 determination is made does not affect the conclusiveuess of the determination. The original owner had no interest in these proceedings because his title has been divested prior to the determination 24 . Statutory Provisions. C. L. 3949, as amended by Act 107 of Public Acts of 1899, Tax law 127 provides: "And no suit shall be instituted to vacate, set aside or annul the said determination of the said auditor general and the commissioner of the state land office made as aforesaid unless instituted within six months after the determin- ation aforesaid. * * *" C. L. 3953 as amended by Act 107 of Public Acts of 1899, Tax law, 131, provides that a person, after residing upon such land for five years and improve the same, shall be entitled to a deed. "Such deed shall convey an absolute title to the land sold, and shall be conclusive evidence of title in fee in the grantee, and it shall be the duty of the State of Michigan to defend and prosecute all suits brought to protect such title and the state shall pay all costs adjudged against the homesteader. * * * "And provided further, that any person who has purchased and entered into possession of any lands as a homestead, under and by virtue of the provisions of this section, as originally passed or as amended when said lands had been bid off to the state and were held by the state for the taxes of one or more years, and said lands were delinquent for taxes for three or more years, shall, on performing the other conditions 24. Downer v. Richardson, 148 Mich. 596. $ 217 THE LAW OF TAXATION '.', \:> of said section as amended, receive a deed therefor, as herein provided, and shall be deemed to have a good, sufficient fee-simple title to said premises, to all intents and purposes the same as though said lands had been bid off to the state for a consecutive period of more than three years, as originally provided in 127 of said act. And in all cases where the lands have been taken as a homestead as set forth in the last foregoing proviso, all actions of ejectment or to recover posses- sion of said lands or to set aside the title of such home- steader by any person, firm or corporation claiming the original or government title shall be commenced within six months after this act shall take effect and not afterwards." This section also provides, that be- fore commencing such suit, the person or party asail- ing such title shall pay to the auditor general all de- linquent taxes, costs, charges and interest, and pay or purchase all bids and titles held by the state. 217. Statute of Limitations. Under our system of taxation there can be no outlawry between the state and county, nor between the county and township. The provision as to the time of payment by one municipal body to another is directory merely; and the general statute of limitations does not apply 28 . As be- tween the state and a private individual, however, the statute of limitation may be set up by the state 2 *. 25. Oceana Co. v. Hart Twp, Co. v. Arenac Co., Ill Mich. 48 Mich. 319; Auditor General 105. v. Shiawassee Co., 74 Mich. 536, 26. McRae v. Auditor Gener- 554; Shiawassee Co. v. Hazel- al, 146 Mich. 594; Wilkinson v. ton Twp., 82 Mich. 440; Bay Auditor General, 147 Mich 13. 313 STATUTES AM) KSTOPPEL 218 218. Constructions of Statutes. The previous policy of the state will be considered in con- struing a statute. Unless it clearly appear that it contem- plates a radical change of the policy of the state, it will be construed so as to be in harmony with a long continued policy. It having been the policy of the state to hold the township liable for delinquent taxes assessed against per- sonal property for state and county taxes, 89 of Public Acts of 1893 is held not to relieve this liability though it provides that the taxes collected shall be paid to the state, county and township in proportion to their right therein 87 . Where a new question of practice is one of doubtful validity, as the right of the deputy auditor general to exe- cute a state tax deed, the practical construction of the statute by an executive department of the government for many years ought not to be disturbed or called in question where it has done no mischief. When, in the performance of its executive duties, it becomes necessary for the execu- tive department to construe a statute, great deference is always due to its judgment: and the obligation is increased by the lapse of considerable time before its acts are called in question 3 *. Under the practice at the auditor general's office, the counties had been charged legal interest on an- nual balances, under various provisions of the statute from 1838 to the present time, providing that when tax sales were set aside the amounts refunded should be charged up to the county with interest. This practice, in the absence of a plain statute to the contrary, is sustained 2 ". Where, 27. C. L. 83912: Muskegon Co. v. Hoge, 21 How. 35, 6; City v. Muskegon Co., 123 Mich. U. S. v. Gilmorc, 8 Wall. 330: 272, 275. U. S. v. Pugh, 99 U. S. 265. 269; 28. Westbrook v. Miller, 86 Malonney v. Mahan, 1 Mich. t. Mich. 148, 151; Surgett v. La- 29. Auditor General v. Shia- pice. 8 How. 48, 71; Union Ins. wassee Co., 74 Mich. 536, 551. 219 THE LAW OF TAXATION 314 however, the construction placed upon the interpretation of a statute by the auditor general's department is challenged shortly after the passage of the act, the court will not be justified in adopting that construction unless it is the clear meaning of the statute 30 . 219. Legalizing Acts. A statute which attempts to make a tax deed unassail- able for any reason, and conclusive evidence of title, is un- constitutional. If what has been levied under the name of a tax is a mere arbitrary demand, made by the public authorities without warrant of law, it is not in the power of the legislature, by any device whatever, to compel its payment. It is too plain to admit of discussion that what the legislature cannot do directly it has no power to do in- directly. If it cannot coerce payment of what is called a tax by means of a tax warrant, it cannot do so through withholding the party's rights until he makes payment. An assumed tax must be a tax in fact, or no number of validating acts can put anyone under any obligation to pay it 31 . Where a tax sale is void, the legislature cannot there- after give effect to such void sale and so deprive an indi- vidual of his property 32 . It is true that a retrospective statute, curing defects in legal proceedings where they are in their nature irregularities only, and do not extend to matters of jurisdiction, is not void on constitutional grounds, unless expressly forbidden; but the proposition that the legislature can make ' good that which was void when done, is utterly at variance with the fundamental prin- ciples of the law. When such a statute undertakes to take 30. Connecticut etc., Ins Co. Mich. 335, 344. v. Wood, 115 Mich. 444, 452. 32. Auditor General v. Bay 31. Sinclair v. Learned, 51 Countv, 106 Mich. 662, 675. '! 1 ." STATUTES AND ESTOPPEL away vested rights to make good a conveyance which the grantor totally lacked the power to make, it is impossible- to sustain it 33 . Where the defect complained of, however, and sought to be remedied by the legalizing act, is not jurisdictional, but the act dispenses with or changes cer- tain rules of practice, or of presumption, as dispensing with a certificate or certain record evidence, it will be valid though it act retrospectively 84 . Where the county treas- urer issues a deed which should have been given by the auditor general, it is competent for the legislature to legalize such deed. Where the title had vested in the state, the right to sell depends upon the will of the state ex- pressed by effective legislation. If it had a right to sell, it had a right to adopt or validate a sale previously made 35 . $220. Legislative Allowance of Claims. The constitution forbids the allowance of private claims by the legislature. It cannot therefore allow claims and provide for an assessment of the allowance upon a munici- pality 38 . Neither can the legislature create a liability in the nature of a debt where it did not exist, as authorizing money to be raised to reimburse a treasurer for money stolen 87 . 33. Hall v. Perry, 72 Mich. the electors in previously rais- *02, 205; Shouk r. Brown, 61 ing a bounty tax. No provi-i 40. School District v. Dark. On Mich. 163; Stevenson v. Bay City. Mich. 435. 26 Mich. 45. 41. Burt v. Auditor General. 36. Boehme v. Monroe Gty, 39 Mich. 126. 106 Mich. 401. 42. Westbrook v. Miller. 64 37. Sibley v. Smith, 2 Mich. Mich. 129. 487. 237, 238, 239 THE LAW OF TAXATION 332 office 43 . The signature of a deputy county clerk may be supplied at a different term than the one in which the record was made, and after suit brought 44 . 237. Records. Mistakes in, Where a warrant is wrongly dated, the correct date may be shown from the council proceedings 45 . But where a resolution, by mistake, specifies the succeeding instead of the present year, the error cannot be explained or shown 48 . 238. Presumptions. The tax rolls are prima facie evidence of the regularity of the tax 47 . Hence, taxes will be presumed to be assessed for a public purpose and not for a purpose forbidden by law 48 . Inasmuch as the board of supervisors have no control over township taxes, a township tax will be pre- sumed legal without an order or certificate from the board 49 . There is no presumption, however, that a tax was authorized for a larger amount than appears in the record of the body having authority to raise the tax 50 . 239. Presumptions as to Collections. Where money for taxes is paid to the collector, it will 43. Boyce v. Auditor General, v. Metcalf, 4 Mich. 579. 90 Mich. 314, 326; Auditor Gen- 48. Wright v. Dunham, 13 eral v. Hill, 97 Mich. 80. Mich. 414; Attorney General v. 44. Sheldon v. Marion Twp., Bay County, 34 Mich. 46 ; Penin- 101 Mich. 256. sular Iron Co. v. Crystal Fall 45. Gratwick Lumber Co. v. Twp., 60 Mich. 510. Oscoda, 97 Mich. 221. 49. Robbins v. Barren, 33 46. Mich. Land & Iron Co. v. Mich. 124; Upton v. Kennedy, 36 Republic Twp., 65 Mich. 628. Mich. 215; Auditor General v. 47. Wattles v. Lapeer, 40 McArthur, 87 Mich. 457; Auditor Mich 624; Decatur v. Copley, 133 General v. Hill, 98 Mich. 327. Mich. 546 ; Hood v. Judkins, 61 50. Williams v. Mears. 61 Mich. 575; Muskegon v. Martin Mich. 86; Case v. Dean, 16 Mich. Lumber Co., 86 Mich. 625 ; Tweed 12. 333 RECORDS 240, be presumed to have been paid to the municipality 51 . On a return of the delinquent tax, it will be presumed that the collector made a proper demand for the tax 52 . There is no presumption that a tax was paid 83 . After a levy for the tax, there will be presumed to be no cloud upon title, since the presumption then arises that the levy will satisfy the tax 54 . 240. Presumptions of Existing Records. Until the statute changed the rule, the law presumed that all officers entrusted with the custody of public files and records, would perform their official duty by keeping them safely in their offices. When a paper was not found where, if in existence, it ought to have been recorded or de- posited, the presumption arose that no such document had ever been in existence. Until this presumption was reoutted, it stood as proof of such non-existence 65 . Under the statute, however, the rule is reversed. There is now no presumption that because papers pertaining to the levy of a tax cannot be found that they are not in existence. The presumption is that they were in existence 5 ', and conse- quently, all taxes are presumed to be valid 57 . 241. Presumptions. It will be presumed that every officer purporting to act, 51. Nicodemus v. East Sagi- Kennedy, 36 Mich. 215 : Stockle v. naw, 25 Mich. 456. See 222, Silsbee , 41 Mich. 615; Hogels- supra. kamp v. Weeks. 37 Mich. 422. 52. Dickison v. Reynolds, 48 56. C. L. 1871, Si 129. Hogels- Mioh. 158. kamp v. Weeks, 37 Mich. 422; 53. Auditor General v. Lake Stockle v. Silsbee, 44 Mich. 561 ; George, etc., Ry., 82 Mich. 426. Boyce v. Auditor General. 90 54. Henry v. Gregory, 29 Mich. 314 ; Upton v. Kennedy, 36 Mich. 68. Mich. 215. 55. C. L. 1871. 81129. Hall v. 57. Auditor General v. Meier, Kellogg, 16 Mich. 135; Platt v. 95 Mich. 128; Sherman v. Fisher. Stewart, 10 Mich. 260; Upton v. 138 Mich. 391. 241 THE LAW OF TAXATION 334 duly qualified for his office 58 . A record showing the action of the electors, bearing a certain date, will be presumed to mean that the electors acted on that day 59 . It will be presumed that the collecting officer made a personal de- mand for the tax 60 . There is a presumption that wild lands, contiguous in one large tract are of equal value* 1 ; and if they are omitted from the rolls, the law presumes either that such omission was authorized, or that the lands were worthless 62 . Although the highway commissioner orders the assessment of an excessive labor tax, yet, in the absence of the roll there is no presumption that the illegal excess was spread 63 . Where the records are silent, there is no presumption that the electors voted the township ex- penses 64 . No presumption arises from the records of the board of supervisors that an excessive township tax was levied 65 . Where the township clerk certified that the com- missioner of highways found the expenditures to be $1,000.00, in the absence of a counter showing, it was presumed that the commissioner had the orders before him when he made the estimates 66 . There is no presumption that road districts remain the same each year 67 . It will be presumed that all necessary facts exist to authorize the 58. Bank of St. Joseph v. St. Peninsular Iron Co. v. Crystal Joseph Twp., 46 Mich. 526 Sibley Falls Twp., 60 Mich. 510. v. Smith, 2 Mich. 486; Mills v. 62. Perkins v. Nugent, 45 Richland Twp., 72 Mich. 100. The Mich. 156. appointment of a member of the 63. Hoffman v. Lynburn, 104 board of review was not of rec- Mich. 494. ord. Newaygo Manufacturing 64. Williams v. Mears, 61 Co. v. Eichtenaw, 81 Mich. 416. Mich. 86. 59. Auditor General v. Long- 65. Boyce v. Sebring, 66 Mich, year, 110 Mich. 223. 210. 60. Dickison v. Reynolds, 48 66. Longyear v. Auditor Gen- Mich. 159. eral, 72 Mich. 415. 61. Sawyer-Goodman Co. v. 67. Deerfield Twp. v. Harper, Crystal Falls Twp., 56 Mich. 597; 115 Mich. 678. 335 RECORDS 241 raising of a tax ; and only the essentials required by statute need appear of record 68 . 68 See 5114, supra. Diamond Match Co. v. Ontonagon, 140 Mich. 183. PART TWO DRAIN TAXES CHAPTER XV. JURISDICTION AND EX PARTE PROCEEDINGS. 242. Qualification of Drain Commissioner. 243. Appointment of Special Drain Commissioner. 244. Jurisdiction. 245. Jurisdiction . County and Township Drains. 246. Jurisdiction. Public Health. 247. Jurisdiction. Board of Health. 248. Action on One Petition. 249. Description in Pettition. 250. Signers to Petition. . 251. Recitals in Petition. Form of Petition for Drain. 252. Surplusage in Petition. Form of Petition for Cleaning Out Drain. 253. Petition to Deepen, Widen or Clean Out. 254. Change of Drain. 255. Intersection of Drains. 256. Survey. 257. First Order. Form of First Order. 258. Necessity of Drain. 259. Release of Right of Way. Form for Release of Right of Way. 260. Attempt to Obtain Release. 261. When Release Unnecessary. 242. Qualification of Drain Commissioners. Under the law of 1861, the board of supervisors had no authority to appoint one of their own number as commis- sioner. It was the purpose of the law to impose upon the 337 JURISDICTION, ETC. board the duty, as a wholly independent and separate body, to supervise the action of the drain commissioners, and to check or restrain any of their action which they should deem extravagant or injudicious. It contemplated the un- prejudiced separate action of two separate boards upon all matters on which the drain commissioners were authorized to act. This object would be defeated if the board of super- visors could appoint their own members as members of the board of drain commissioners. If these commissioners could sit in the board of supervisors, they might vote upon the approval of their own acts. The duties of the two offices are incompatible 1 . The fact that the sureties on the com- 1. C. L. 54310, as to present qualification. Act 216 of Laws of 1861. Kinyon v. Duchane, 21 Mich. 497, 499. In this case a tax spread by such a commissioner is held invalid. In Zabel v. Harsh- man, 68 Mich. 273, it is held that the fact that an old drain com- missioner was a supervisor could not be shown collaterally, many years after, to avoid his proceed- ings. The first drain law was passed in 1819, authorizing the super- visor to "dig in the highways," if necessary, when he could Ho so with the least disadvantage to the owners of the land. (Territo- rial Laws, Vol. 1, p. 453-4). In 1827, the Territorial legislature authorized the owner of premises to call in the fence viewers and establish a drain on the line be- tween himself and an adjoining owner. (Laws of 1827, Vol. 2, p. 325). In 1839, an owner who desired a drain across the prop- erty of another person, could apply to a justice of the peace to determine the damages. The applicant could then pay the <22) damages and dig the drain at his own expense. The laws of 1847, (p. 164) provided for the appoint- ment of three county commission- ers, but contained no provision for condemning lands. In 1857, provision was made for the appointment of three county drain commissioners having somewhat more defined powers. (Laws of 1857, p. 431). In 1859, the town- ship highway commissioners were made township drain commission- ers. In case a jury was called, they selected the names from which to strike the jury. (Laws of 1859, p. 1064). This system, with amendments, was in force until 1871. In 1861, the county drain commissioners were reduced in number from three to one. They were authorized to strike a jury in a similar manner to the highway commissioners. (Laws of 1861. p. 453). In 1857, the office of township drain commis- sioner was made elective. (Laws of 1875, p. 166). In 1883, the township drain commissioner was allowed to finish county drains where there was no county com- 242 THE LAW OF TAXATION 338 missioners bond did not justify does not necessarily vacate the appointment, if the sureties qualify after notice. If, after notice, they did not qualify, the commissioner could be removed by the proper authorities. The courts gener- ally hold that, even though the statute expressly provides that upon a failure to give a bond within the time prescribed, the office shall be deemed vacant, and may be filled by appoint- ment, the default is a ground for forfeiture only, and not a forfeiture ipso facto, and that if, notwithstanding the de- fault, the state or other power sees fit to excuse the de- linquency by granting the officer his commission, the defects of his title are cured, and it is a title de jure, having relation back to the time of his election or appointment 3 . A county drain commissioner cannot act upon a drain in which he is personally interested. The maxim that no man shall be judge in his own cause is so deeply rooted in the common law that it cannot be overlooked anywhere, where impartial justice is one of the objects to be attained 3 . This principle has found express recognition in our statute, which declares that no judge of any court can sit as such in any cause in which he is a party, or in which he is interested, and al- though the board may not be considered as having tech- nically constituted a court within the meaning of this act, the principle itself, which derives no aid from legislation, extends beyond the words of the statute, and asserts itself wherever judicial powers are employed by a body appointed missioner. (Laws of 1883, p. 198). of 1887, Act. 254.) The office of township drain 2. Bennett v. Benfield, 80 Mich, commissioner was first made 265, 269 ; McGregor v. Gladwin optional with the townships, Board, 37 Mich. 388. (Laws of 1885, No. 227), and 3. Zabel v. Harshman, 68 then their office was abolished, all Mich. 273 ; Lickley v. Bishopp, drains formerly under their juris- 14 L. N. 735, 150 Mich. 256, where diction being turned over to the the commissioner owner a mort- county drain commissioner. (Laws gage on premises benefited. JIRISDICTION, ETC. 243 by law. The court ought not to be astute to discover re- fined and subtle distinctions to save a case from the opera- tion of the maxim, when the principle it embodies bespeaks the propriety of its application. The immediate rights of the litigants are not the only objects of the rule. A sound pub- lic policy, which is interested in preserving every tribunal appointed by law from discredit, imperiously demands its observance 4 . Act No. 448 of Local Acts of 1903, provid- ing for the election of a county drain commissioner in Ber- rien county, is valid, and repeals by implication, 1 of Chap. II, of Act 272, of Public Acts of 1899, relative to the term of office of the commissioner. The effect of the local act was to shorten the term of the prior commissioner 5 . The drain commissioner has no such vested rights in the func- tions of his office that his duties may not at any time be suspended, restricted, or enlarged 6 . 243. Appointment of Special Drain Commissioner. Even though the probate judge should have power to ap- point a special county drain commissioner to act in two counties, such appointment is invalid when made ex parte, without notice to any one. Notice is always necessary when it is sought to deprive the citizen of his property; and if the notice is not expressly provided fof in the law itself, it is in all such cases necessarily implied, and the failure to give such notice renders the proceedings, if otherwise regu- lar, null and void. The commissioner is the agent of the county or counties, appointed to do a certain piece of work, which, when completed, ends his mission. The application 4. Stockwell v. White Lake 5. Attorney General v. Bur- Twp. Board, 22 Mich. 341, 350; bank, 141 Mich. 438. Peninsular Railway v. Howard, . Rice v. Probate Judge, 141 20 Mich. 18. Mich. 93. 243 THE LAW OF TAXATION 340 to the judge of probate must show that the persons who sign the petition for the appointment of such special com- missioner must show, on its face, that the applicants are free-holders of the country or counties to be affected. This petition is to put the officer in motion, and is the basis of his authority to enter upon the course of proceedings to establish a watercourse or locate a ditch 7 . The fact that the special drain commissioner proceeded to act without qualifying may be shown in an action to set aside his pro- ceedings 8 . It is competent for the legislature to provide for the election of county drain commissioners by the people, direct; and it may cut down, limit, abridge, or extend the term of any officer it has created, if not prohibited by the constitution. In accordance with this power, it may pro- vide that the drain commissioner elected shall take his office on the January following such election, although his pre- decessor had been previously appointed by the board of supervisors, under a prior statute, to serve for two years, only one year of which time had expired 9 . The appoint- ment of a county drain commissioner by the governor of the state cannot be sustained upon the ground of an exist- ing exigency ; but such officer is not an ordinary local officer, but one acting by virtue of the police powers of the state and exercising its functions for the benefits of the public health. The state is not limited to any particular method or set of officials by and through whom it shall perform its functions in the interest of the public welfare. The legis- lature may provide any suitable and proper method within the limitations of the power to be exercised ; and an appoint- 7. Present law in Act 27 of 8. Whiteford Twp. v. Probate Laws of 1901; Corey v. Probate Judge, 53 Mich. 130, 133. Judge, 56 Mich. 524 ; Whiteford 9. Attorney General v. Stryker, Twp. v. Probate Judge, 53 Mich. 141 Mich. 437; Attorney General 130, 133. v. McGear, 146 Mich. 45. 341 JURISDICTION, ETC. 244 ment by the governor is within those powers 10 . The statute does not require a special county commissioner to file his oath of office, nor does it disqualify a county road commis- sioner from acting as special county drain commissioner 11 . 244. Jurisdiction. Territorial. The county system of drainage of 1869, and the township system of 1871, are separate and independent. While the township drain commissioner is confined to his township insofar as he affects the right or burdens of the tax payers, the fact that he extended a drain beyond his township would not vitiate his proceedings if it was done with the consent of those in the other township, and without cost to the tax payers of his own township 13 . Under our constitution each township is a separate municipality, whose officers are elected by town residents, and who are themselves residents. No person not living in the township has any voice in its affairs. No instance has ever been known in our history where a town or town representative has been allowed to exercise any governmental powers in another town. It has always been understood that in providing as it does, for the or- ganization and incorporation of townships, the constitution dealt with them as recognized and ancient municipal bodies, the substantial character of which was intended to be per- 10. Alexander v. McGear, 146 ship drain commissioners. Act Mich. 45, holding it constitutional 227 of Public Acts of 1885, 3 H. S. to provide for the appointment of 1740a7, limits the township drain drain commissioner by the commissioner to drains having Governor, constcuing Local Act their commencement, terminus 592 of Public Acts of 1905, 7n and route within the township, as re Livingston Co. well as requiring all lands liable 11. Auditor General v. Bolt, to an assessment for benefits to 147 Mich. 2S3. The law of be situated within the township. 1881 does not define the jur- 12. Davidson v. Otis, 24 Mich, isdiction of county and town- 23. S 245 THE LAW OF TAXATION 342 petuated. To allow one township or its officers to meddle in the arrangement of public interests in others, to levy taxes against them or their people, would be subversive of their independent character. Such a power cannot be inferred. Such powers would be a direct and immediate interference with the independence of other townships, and an exercise of some of the most important governmental powers of the state over people and municipalities which have no voice, direct or indirect, in the election or appointment of the func- tionary exercising them. If such a jurisdiction can be given to a township officer, outside of the township, it is impos- sible to find any power that cannot be given them in any part of the state. Such a grant to a local officer is too repugnant to our political system to find support anywhere 13 . Where a drain is wholly within the limits of an incorporated city, the county drain commissioner has no jurisdiction to act. There is no sound reason for holding that the legisla- ture intended to confer the extraordinary power upon this officer to enter the large cities of the state and perform the functions of local self-government which have, from the be- ginning of the state, been conferred upon the municipalities themselves 14 . The county drain commissioner has juris- diction over a water course on which he has a petition to act, and may file a bill to restrain its obstruction 148 - The drain commissioner has jurisdiction to construct a public drain in a public highway. It has been the policy of the state, from territorial times, to use the highways for drain- age purposes. The municipality may erect barriers along such drains if it so desires 15 . 13. Robertson v. Baxter, 57 v. Weilnan, 15 -L. N. Mich. 127. 15. Kiley v. Bond, 114 Mich. 14. Mason v. Detroit, etc., Ry., 447; Conrad v. Smith, 32 Mich. 104 Mich. 631. 429. 14a. Pere Marquctte R. Co. JURISDICTION, ETC. 240 245. Jurisdiction. County and Township Drains. Under the original act of 1885, the jurisdiction over the two kinds of drains is very strictly defined. A township drain commissioner had no jurisdiction over a county drain unless the county drain is first vacated or abandoned, even though the entire drain and lands affected thereby were in the one township. The fact that there was no county drain commissioner within that county did not change the rights of the township drain commissioner 16 . A state drain was under the jurisdiction of either township or county drain commissioner, depending upon whether or not the drain and the lands affected thereby were all in one township 17 . A township drain commissioner had no jurisdiction to act upon a drain or assess a tax, beyond the limits of his township. L'nder our constitution each township is a separate munici- pality, whose officers are elected by the town residents, and who are themselves residents. The officers of one township cannot meddle in the public interests of another township 18 . The joint action of township drain commissioners in dif- ferent townships, in constructing a drain traversing their townships, is without jurisdiction and void 19 . This dis- tinction, however, no longer exists, as all drains are now, by statute, under .the care and jurisdiction of the county drain commissioner; and the office of township drain com- missioner has been abolished 20 . 16. Zabel v. Harshman, 68 Mich. 589. Mich. 270, 273 ; Totnlin v. New- 20. Sullivan v. Tinsman, Sup. comb. 70 Mich. 358. Court file No. 11953, not reported. 17. Brady v. Hayward. 114 Conley v. St. Gair Board. 88 Mich. 327. Mich. 245. At this time the 18. Robertson v. Baxter, 57 county drain commissioner had Mich. 127. 129. concurrent jurisdiction with the 19. Hubbell v. Robertson, 65 township drain commissioner on Mich. 538; Alger v. Slaght, 64 drains wholly in one township. Ji ~-t(J THE LAW OF TAXATION 344 246. Jurisdiction. Public Health. Drain laws which take from the citizen his private prop- erty against his will, can be upheld solely upon the ground that such drains are necessary for the good of the public health. They proceed upon the basis that low, wet and marshy lands generate malaria, causing sickness and danger to the health and life of the people; that when they are of such character as to injure the health of the community, they become and are public nuisances, which ought to be abated, and the legislature has the right under the police power inherent in every government, to protect the peoplt from plague and pestilence, and to preserve the public health. But drainage for the purpose of private advantage, such as improving the quality of the land, or rendering it more pro- ductive or fit for cultivation, cannot be justified under the police power. Neither public convenience nor public wel- fare, independent of considerations of public health, will justify the legislature in the enactment of such laws. The constitution has provided that this necessity, and compen- sation, shall be determined and ascertained either by a jury of twelve, or by special commissioners, who, on their oath, must find that the construction of any proposed drain is necessary for the good of the public health 21 . The size or extent of the drain does not affect the jurisdiction of the commissioner 22 ; but his jurisdiction does not extend to the impairing of the navigability of a navigable river or lake, 21. Constitution of 1850, Art. venience and welfare of the public XVIII, 2 ; Beecher's Constitution should not be considered. For of 1908, Art. XIII, 2; Kinnie v. other reasons, this law was held Bare, 68 Mich. 625, 628; Attorney unconstitutional. See 404, post. General v. Me Clear, 146 Mich. Rice v. Probate Judge, 141 Mich. 45. Act No. 612 of Local 693. Acts of 1905, relating to Ionia 22. Smith v. Carlow, 114 Mich. Co.. provided that no drain should 67 ; Brady v. Hayward, 114 Mich, be laid out unless necessary for 326, 331. the public health ; that the con- :;i:> JURISDICTION, ETC. 247,248 as this is forbidden by statute 23 . The drain commissioner has no authority except that conferred by the petition upon which he acts. He therefore cannot enter, nor authorize the entering, of private premises to clean out an old drain ex- cept in pursuance of a petition filed with him 34 . 247. Board of Health. Jurisdiction. The board of health has no right to fill up a drain or water- course of twenty years standing on the ground that it is a menace to the public health 2 *. 248. Action on One Petition. A watercourse, composed of an original drain and its extension, laid out and established separately but forming one continuous drain, may be deepened and widened in one proceeding, upon one petition 26 . A drain may be deepened and widened across another drain 27 . A new drain may be established over the line of an old drain ; and one who is not taxed or affected injuriously cannot complain 28 . A com- bination of deepening, widening, cleaning out and straighten- ing may be carried on under one petition under the law of 1895; and it is held immaterial that the drain proposed to be acted upon was composed of several drains established by the state. Though these state drains were turned over to the township, the county drain commissioner had con- current jurisdiction 29 . Under the original act of 1885, a drain could not be deepened and widened and also extended 23. Cole v. Dooley, 137 Mich. man, 133 Mich. 50b. 419. C. L. 54339. 28. Flynn Twp. v. Woolman, 24. Freed v. Stuart, 147 Mich. 133 Mich. 508. 31. 29. Brady v. Hayward. 114 25. Chase v. Middleton, 123 Mich. 328, 335; 3 H. S. 8l740h9; Mich. 847. Patterson v. Mead. 148 Mich. 659, 26. Tinsman v. Probate Judge. holding that three drains, forming 82 Mich. 562. in fact one continuous drain, may 27. Berry v. Tinsman, 108 be acted upon in one petition. Mich. 672; Flynn Twp. v. Wool- ;? 249 THE LAW OF TAXATION 346 under one petition 30 . In a petition to lay out and establish a drain, it is immaterial by virtue of the statute, that poc- tions of an existing watercourse are cleaned out, deepened, widened, straightened, or extended, without specifically men- tioning the same in the petition 31 . A petition to locate and establish a drain will support the action of the commissioner in varying the line of drain prayed for in the petition, and including in the established drain a portion of an old drain 32 . 249. Petition. Description. It was not contemplated under the act of 1885 that the petition should contain an accurate description of the termini, and route of the proposed drain. It could not be well done without the petitioners first went to the expense of a survey in order to determine the feasability of the work. This the law does not require. What it contem- plates is that the termini and route shall be approximately described for the information of the drain commissioner; and it is left for him to ascertain and determine the practical route and termini 33 . A mistake that is clerical upon its face will not avoid the petition 34 . The size of the drain does not affect the jurisdiction of the drain commissioner 35 . A peti- tion on a drain 50 rods long, giving its commencement and general direction, but not its terminus or proposed size, is 30. Hinds v. Probate Judge, drain should be described in the McGraths Mandamus cases, N. petition to deepen and widen, or 613. clean out. Act 203 of the Public 31. 3 H. S. 1740h7; Act 203 Acts of 1893, Chap. 8, 1, pro- of 1893, Chap. 8, 1. Hauser v. vided that it should not be neces- Burbank, 117 Mich. 463, 467. sary to designate a drain by 32. Sturm v. Kelly, 120 Mich. name, but that it might be 685, 688. described by giving its general 33. C. L. 4319, Kinnie v. course and direction. Bare, 68 Mich. 625, 627; Kinnie 34. Kinnie v. Bare, 68 Mich, v. Bare, 80 Mich. 345, 347. Until 625, 634. 1893, the statute made no pro- 35. Smith "v. Carlow, 114 Mich, vision as to how an established 67. 347 JURISDICTION, ETC. 250 held sufficient under the law 'of 1875 36 . When the petition only gives the line of a drain, and none of the subsequent papers describe the land proposed to be taken, it is too in- definite to work upon 37 . A petition which leaves the com- missioner to determine the course of part of a drain, and does not give a terminus, is too indefinite to confer jurisdic- tion 38 . Under the statute, however, the commissioner has a discretion in locating the terminus of a drain 39 . When the termini and route are approximately described, though in general terms, it will be sufficient; the commissioner is left to determine the practical route and termini* . It is competent for the legislature to provide that the drain shall be confined to the precise commencement, route and terminus, mentioned in the petition 41 . 250. Petition. Signers. Act 227 of the Public Acts of 1885 did not require that the petitioners should be residents of the townships where the drain was situated; it was sufficient if they were freeholders thereof 42 . Under Act 233 of Public Acts of 1899, the peti- 36. Gark v. Drain Com'rs., 50 since 1885. Mich. 618, 620. To lay out and establish a drain: 37. Bennett v. Olney, 56 Mich. 1885, Act 227, Chap III. 1. re- 634. 636. quired five freeholders of the 38. Null v. Zierle, 52 Mich. townships traversed by the drain. 540; Frost v. Leatherman, 55 1893. Act 203, Chap. Ill, 1, re- Mich. 33, 38. quired five freeholders, one or 39. Gillison v. Cressman, 100 more of whom should be the Mich. 591, 597. owner of land liable to an assess- 40. Hauser v. Burbank, 117 ment for benefits. 1895. Act 217. Mich. 463, 467. Chap. Til, 1, required ten or 41. Rice v. Probate Judge, 141 more freeholders, 30% of whom Mich. 693. should be the owners of lands 42. See 8318, Post ; C. L. liable to an assessment for bene- 84319: Kinnie v. Bare, 68 Mich. fits. 1897. Act 254, Chap. III. 625; Gillett v. McLaughlin, 69 8l, required ten or more free- Mich. 547. holders, three or more of whom There has been several changes should be the owners of lands in reference to the requisite num- liable to an assessment for bene- ber of signers on the various fits. But in cases where there petitions, and their qualifications. were only three interested owners 250 THE LAW OF TAXATION 348 tion to deepen and widen a drain composed of the original drain and its extension, laid out separately, must be signed by at least one freeholder who was assessed on the con- struction of each portion of the drain. Such a drain upon a proper petition, may be deepened and widened as one drain 43 . Where a drain traverses more than one township, the petition need not be signed by five freeholders of each township 44 . Where jurisdiction is once acquired, it cannot be impaired or taken away by the attempted withdrawals of of lands involved, one freeholder liable to an assessment, only, was required. It will be noticed that there is a hiatus. Where only four interested owners are in- volved, there is no provision whereby they may obtain a drain. 1899. Act 272, Chap. Ill, 1, re- quires ten or more freeholders, five or more of whom shall be the owners of lands liable to an assessment for benefits. In cases where three parties only are in- terested in the proposed drain, the provision is similar to the law of 1897. Act 272 of Public Acts of 1907 required the sign- ature of ten freeholders, four of whom would be liable to an assessment and also required the signatures of not less than one half of the owners of lands traversed by the drains ; where five or less persons would be benefited the signing of one half so bene- fited would be sufficient. Act 193 of Public Acts of 1909, requires the petition to be signed by not less than one-third of the owners of lands traversed by the proposed drain. To clean out, deepen, widen, extend or straighten a drain. 1881. The law of 1881, 1 H. S. 1696, required five signers on a petition for drain proceedings, who should be resident free- holders of the townships affected. It is silent as to the interest of the petitioners. 1885. Act 227, Chap. VIII, 1, permitted any owner of land which had been assessed on the construction of the drain, to petition therefor. This was in force until 1889. 1889. Act , Chap. VIII, 1, required five signers, one or more of whom were the owners of land which had been assessed on the construction of the drain. This was in force until 1893. Act 203, Chap. VIII, 1, required five signers, one or more of whom should be the owners of lands which would be liable to an assessment for benefits. See note to 242, supra. Sec. 1, of Chap. VIII of Act 272 of Public Acts of 1907, requires petition to be signed by one third of the owners of lands traversed by the drain. Act 193 of Laws of 1909 re- quires a petition to clean out to be signed by one-fourth of the owners of lands traversed by the drain. There is no provision as to deepening and widening. 43. Tinsman v. Probate Judge, 82 Mich. 562. 44. 3 H. S. 1740b5 (Law of 1895); .Brady v. Hayward, 114 Mich. 326, 331 ; Hall v. Slaybaugh, 69 Mich. 484. JURISDICTION, ETC. 250 the petitioners 45 . Act 203 of Public Acts of 1893 only re quires that the petitioners shall be freeholders of the town- ships affected. They need not be resident freeholders 46 ; neither does the petition require ten signers from each town- ship affected or traversed 47 . A prior petition cannot be used to support a subsequent petition for a public improve- ment 48 . A signer of the petition may not withdraw his name after the petition has been filed and proceedings com- menced 49 . A woman may be a freeholder and qualified to sign petition 50 . Where a husband and wife jointly own land the signature of one is a nullity ; where the statute re- quires signers to be owners both must join 51 . The vendee of a land contract, in possession, is a freeholder. At common law and by statute, estates of inheritance are freehold estates. The estate of a vendee in a land con- tract, is an estate of inheritance 52 . Where the statute requires that the signers be freeholders each tenant by entirety is a freeholder. Other persons cannot claim that some names were obtained by fraud. It is not necessary that a deed be recorded to confer a right to sign a petition". A husband and wife holding as such are each competent to sign a petition. One holding an estate for life is a freeholder; so is one who, in equity, has a right to the premises in fee 84 . A requirement that a petition be signed by "not less than one- third of the freeholders of the lands to be drained thereby 45. Siebert v. Woeval, 1 N. 50. Patterson v. Mead, 148 W. Rep. (la.) 197. Mich. 659. 46. Angell v. Courtright, 111 51. Patterson v. Mead, 148 Mich. 223. Mich. 659. 47. Auditor General v. Fisher, 52. Auditor General v. Fisher, 84 Mich. 128, 131. 84 Mich. 128. 48 Patterson v. Mead, 148 53. Starkweather v. Chatfield, Mich. 659. 149 Mich. 443. 49. Rice v. Probate Judge, 141 54. Hinkley v. Bishop, 152 Mich. 693. Mich. 256. 251 THE LAW OF TAXATION 350 and to be assessed therefor" is void for uncertainty, and impossible of execution. There is no means of determining, until the final review of the assessment, in such a case, whether or not the commissioner had jurisdiction. Where, however, the requirement is that a certain number of the petitioners be "liable" to such an assessment, the provision is good, since the word "liable" contains the idea of a con- tingency. Giving the word "liable" in the general drain law the contingent meaning authorized by the authorities, those liable to an assessment for benefits should mean those who might properly be assessed for benefits, the requirement is not void for uncertainty 55 . 251. Petition. Recitals. Statutory Provision. 1 of Chap. Ill of the Drain Law, as amended by Act 193 of Public Acts of 1909, provides : "Before the commissioner takes any action towards locating, esablishing or extending any drain, there shall be filed with him an application signed by not less than one-third of the freeholders whose lands are traversed by said drain. The eligibility of the signers to such application shall be determined by their in- terest of record, either in the office of the register of deeds, in the probate court or in the circuit court or circuit court in chancery of the county in which such lands are situated, at the time such petition is filed. It shall only be necessary that such application be signed by one-third of the freeholders whose lands are traversed by said drain." 55. Bakker v. Fellows, 153 Mich. 428. :;:. l JURISDICTION, ETC. 251 Form of Petition for Drain. Stuti- of Michigan. } County of > ss. Township of ) To the County Drain Commissioner of said County. Your petitioners respectfully show that they are free- holders of the township of in said county, iu which the drain herein applied for to be located and established and the lands to be drained thereby are situate. That tlie construction of said drain is necessary for the good of the public health, and that the signers hereto con- stitute one-third of all of the owners of lands traversed by the proposed drain, and that each of such signers is the oiwer of lands which will be liable to an assessment for benefits on the construction of the proposed drain. Your petitioners therefor request you to lay out and establish a drain described substantially as follows, to-wit: Commencing at a point in the toivnship of , (describe commencement and terminus accurately, with a general description between these points). Drain to be made .... feet deep at the upper end; bottom to be .... feet wide, with slope of each bank to be . . . . feet horizontal to one foot perpendicular. Dated, The petition is that which puts the officer in motion. It is the basis of his authority to enter upon the course of the proceedings to establish the drain, and must be in writing* 9 . In a petition to deepen and widen an existing drain, under the law of 1889, it must appear that the requisite number of signers were assessed on the construction of the original drain. If the original drain was laid out in two different 56. Kroop v. Fortnan. 31 Mich. 144. 252. 253 THE LAW OF TAXATION 352 parts or sections, though forming one continuous drain, it must appear that at least one signer was assessed on each part; that is, each part must have representation upon the petition 57 . Where the statute required that a majority of the owners of lands traversed by the proposed drain should sign a petition therefor, such fact should affirmatively ap- pear 58 . Where the statute required that the petitioners be resident freeholders of the township where the drain was to be situated, such fact must affirmatively appear 59 , upon the face of the petition 60 . The petition need not state that it is necessary for the good of the public health that the drain be constructed 61 . The commissioner may use sewer pipe, without a prayer therefor in the petition 62 . 252. Petition. Surplusage. Although the petition may recite that a certain township and county will be benefited by the proposed proceedings, along with other townships in a county where the drain is located, such recital together with the fact that the county drain commissioner of the first county was named in the petition is harmless surplusage 63 . 253. Petition to Deepen and Widen or Clean Out. Under the laws of 1871, a petition to clean out a drain 57. Tinsman v. Probate Judge, for a street improvement, the 82 Mich. 562; but see Auditor court refused to allow the use of General v. Bolt, 147 Mich. 283 ; the first petition to support pro- where it is intimated that the ceedings had on the last one. number liable to assessment need 59. Frost v. Leatherman, 55 not appear. Mich. 33, 38; Whiteford Twp. v. 58. In Harbaugh v. Martin, 30 Probate Judge, 53 Mich. 130, 133. Mich. 274, there was nothing in 60. Whiteford Twp. v. Probate the record of the drain disclosing Judge, 53 Mich. 130, 133. this fact. The court declined to 61. Kinnie v. Bare, 80 Mich. determine whether or not a sub- 345. sequent supplemental petition 62. Kenyon v. Ionia Board, 138 might not have been filed show- Mich. 544. ing this fact. In Auditor General 63. Carlow v. Smith, 114 Mich. v. Fisher, 84 Mich. 128, 131, 67, 70. where there were two petitions JURISDICTION, ETC. would not support proceedings to deepen and widen it* 4 . Under such a petition, a drain may only be cleaned out ; and the notice of sale and apportionment need not be person- ally served upon the tax payers 85 . A petition to extend a drain would seem to require the same signers as one to lay out 88 . Statutory Provision. 1 of Chap. VIII of the Drain Law, as amended by Act 193 of Public Acts of 1909, provides: "Whenever a drain or any portion thereof needs cleaning out, one-fourth of the freeholders whose lands are traversed by said drain liable to an assess- ment for benefits on account of the proposed improve- ment, may make application in writing to the county drain commissioner of the county in which such drain is located and the lands to be affected thereby are situated, setting forth the necessity of such proposed work, and the county drain commissioner shall, as soon as practicable thereafter, notify the township clerk or clerks of the township or townships through which the said drain passes, of the filing of such petition, giving a copy or copies thereof." It further provides that the township boards, determine whether or not the drain be cleaned out. The township boards make the order that the drain be cleaned out, and the drain commissioner assesses the benefits. Form of Petition for Cleaning Out Drain. State of Michigan. } County of ss. Toumship of Your petitioners respectfully show that they arc frcc- 64. See 318, supra, for a his- Mich. 529, 531. tory of legislation. Harbaugh v. 66. Patterson v. Mead, 148 Martin, 30 Mich. 274. Mich. 659. 65. Lanning v. Palmer, 117 (28) 254, 255 THE LAW OF TAXATION 354 holders of the townships of in said county, in which said township is situate, the drain, and the lands affected or benefitted thereby. That the cleaning out of said drain is necessary for tlie good of the public health and that the signers hereto con- stitute one- fourth of all of the owners of lands traversed by said drain and that each of such signers is the owner of land which will be liable to an assessment for benefits on the cleaning out of said drain. Wherefore your petitioners request you, to clean out said drain to the dimensions heretofore established, in pursuance of the statute in such case made, provided. Dated, (There is no provision, under the Drain Law of 1909, for deepening and widening a drain. It is suggested, under the authorities cited in 248, that a petition to lay out and establish a water course might lie in such a case.) 254. Change of Drain. Where a drain is changed by the owner of premises on his own lands, he cannot oust proceedings to deepen and widen such drain on the ground that such a change had not been established 67 . Such a drain will still be a legal drain 68 . 255. Intersection of Drains. A commissioner may dig or construct one drain across another existing drain unless the drain so intersected is used for other purposes than drainage. It is no injury to 67. Tinsman v. Probate Judge, 68. Freeman v. Weeks, 45 McGraths Mandamus cases No. Mich. 335. 611. 355 JURISDICTION, ETC. 256 divert the flow of drainage water, where the only object of the drain is to free the land of the water 71 . H 256. Survey. It should show where the center line of the drain crosses the line of private owners 72 . The court raises a quaere whether an unexplained delay of a year in making the sur- vey would avoid the proceedings, but does not decide this point. From other holdings of the court, it would seem to be immaterial 73 . The survey, under Act 227 of Public Acts of 1885, need not be copied into the application to the pro- bate court. It is sufficient to refer therein to the first order, where they are set out 74 . The survey should show the length of drain on each owner; but if the land is sold and subdivided after the survey is made, such fact will not re- quire a new survey 75 . The original minutes of survey need not be filed with the probate court. They may remain with the drain commissioner 76 . The ninety days time for making the first order begins to run from the time of the delivery of the minutes of survey to the commissioner 77 . Statutory Provision. C. L. 4320 (13 of Drain Law), provides: "The record or minutes of the survey shall show the line and route of the drain, the points where the line of the drain crosses the boundary lines of each owners land and the length thereof upon his land, and the 71. Berry v. Tinsman, 108 74. Kinnic v. Bare, 80 Mich. Mich. 672; Flynn Twp. v. Wool- 345. man. 133 Mich. 508. 75. Hackett v. Brown. 129 72. C. L. 54320: Kinnie v. Mich. 141, 144. Bare. 68 Mich. 625. 76. Hackett v. Brown, 128 73. See Delay in Proceedings. Mich. 141, 144. 364. post. Wright v. Drain 77. Flynn Twp. v. Woolman, Com'r, 44 Mich. 557. 133 Mich. 808. 257 TUB LAW OF TAXATION 356 width of surface excavation that will be required in , its construction, and shall also show, by words, or letters and figures, the width of ground that will be required for the deposition of earth, and every re- lease of right of way shall be deemed to include the extreme width thus shown." 257. First Order. The first order of determination is the basis upon which the special commissioners or jury act. It is the drain as therein described which they find necessary, or unnecessary for the good of the public health 78 . It is competent for the legislature to provide that the drain commissioner may de- termine the necessity of the drain without affording a pros- pective taxpayer thereon an opportunity to be heard. The only persons who can question this determination, or upon whom it is not final, are those whose property is proposed to be taken. Such persons have the constitutional right to have the question of necessity determined by special com- missioners or a jury in the manner provided by statute 79 . This order must be signed by the commissioner 80 . The making of this order is imperative, as in it the commissioner determines the specifications of the drain. It is not required that it may be retained as something for the private satis- faction of the commissioner. The intention is to afford precise data to be acted on by the jury or commissioners, and the regulation contemplates that the scheme thus marked out shall be viewed as the subject for their judg- ment 81 . The order is fatally defective if it fails to describe 78. C. L. 4320; Kinnie v. Mich. 257, 259; Loree v. Smith, Bare, 68 Mich. 625. 100 Mich. 252, 254. 79. Roberts v. Smith 115 Mich. 81. Milton v. Drain Com'r.. 40 5, 7. Mich. 229, 231 ; Kroop v. Forman, 80. Pieotter v. Whaley, 80 31 Mich. 144. JURISDICTION, ETC. the route, terminus, length of drain, depth and width 82 . Where this order contains the line of a drain, with excava- tions and widths specified, this line will be presumed to be the center line of the drain 83 . The drain can only be con- structed for the benefit of the public health, and not for the benefit of the lands drained 84 . The law fixes no limit to the width or depth or size of a drain, nor to what extent a stream may be deepened and widened so as to drain the adjoining land. This determination is left entirely to the commissioner; the courts cannot substitute their judgment for his 85 . The ninety days time within which this order must be made begins to run from the time the minutes of survey are delivered to the commissioner. It need not affirmatively appear when they were delivered as the tax would not be void if this requirement were not complied with. This provision is not, therefore, jurisdictional 88 . \Yhere all parties release the right of way for a drain, the commissioner's finding in his order that the drain is a public necessity, is conclusive 87 . The commissioner may make slight changes in the dimensions of the drain, if not one is injured thereby, altering his first order to correspond with the change 88 . Statutory Provision. C. L. 4320, supra, after receiving a survey of the line of the drain to be made by a competent surveyor, provides: "If upon such survey he shall find such drain to be practicable, he shall within ninety days make his 82. Nugent v. Erb, 90 Mich. 67, 71. 278. 86. C. L. 54320; Flynn Twp. 83. Anketell v. Hay ward, 119 v. Woolman, 133 Mich. 508. Mich. 525, 527. 87. Roberts v. Board of Super- 84. Butler v. Saginaw Board, visors, 115 Mich. 5. 2C> Mich. 22, 29. 88. Horn v. Livingston Co. 85. Smith v. Carlow, 114 Mich. Board, 135 Mich. 553. 257 THE LAW OF TAXATION 358 first order of determination in writing in accordance therewith, therein particularly naming such drain by which it shall thereafter be known and shall establish the commencement, route and terminus of said drain, and the width, length and depth thereof, and shall set survey or grade stakes not more than eight rods apart." Form of First Order. State of Michigan. } County of >ss. Township of First order of determination on Drain. Whereas an application in writing, bearing date the day of , was made and filed unth me, The County Drain Commissioner of county, Michigan, praying for the locating and establishing of a certain drain therein de- scribed, which application was signed by one-third of all of the freeholders owning lands traversed by the proposed drains And, whereas, as soon as practicable thereafter, as such commissioner, proceeded to personally examine the route of the proposed drain and was of the opinion that its con- struction was practicable and necessary for the good of the public health; and as a means of determining the prac- ticability thereof, I did cause a survey and measurement of the line thereof to be made by , a competent surveyor; and upon such survey I found such proposed drain to be practicable, which survey was com- pleted on the day of Now therefore, I, as such County Drain Commissioner, do hereby determine that the laying out and establishing of JURISDICTION, ETC. 258 siuh drain is necessary for the good of the public health; and that it is necessary to take private property for the use and benefit of the public for the purpose of said drain, and I further determine from such survey and examination that tlie construction of such drain is practicable, and I do here- by order that said application be granted, and that said drain be laid out and established in accordance with the minutes of survey thereof, a copy of which are hereto at- tached and marked Ex. A and made a part of this order. And I order and determine that the commencement, term- inus routs, grade, cut, excavations, slope of banks, ami width for depositing excavations, shall, in all respects be in accordance ivith the said minutes of sun'ey. I further determine that the outlet of said drain is of sufficient capa- city to carry the water therefrom. I further order and determine that said drain shall be known and recorded as the Drain. Given under my hand this day of County Drain Commissioner. (Attach a copy of the minutes of survey, marking them Ex. A.) 258. Necessity of Drain. The determination of the necessity of a drain does not necessarily have to be determined by commissioners or a jury unless it involves more than a cleaning out. While the statute provides that the rules which applied to making drains should apply to some cases of improving them, it is only where there is a proceeding "affecting the rights of persons or property." It is evident that when a drain has once been legally made, there is at least a presumption that. 258 THE LAW OF TAXATION 360 if necessary at all, it should be kept in reasonable order; and that usually the points in which the contributing parties are interested are in the amount of entire cost, and the ratio of assessment among the contributors 89 . The power to determine the necessity of a drain is not by law imposed upon the courts; it is placed exclusively in the hands of those tribunals established by law for the sole purpose of determining the question of necessity and of eminent domain. Neither the circuit court nor the supreme court is at liberty to substitute its judgment upon this point for the judgment of the special commissioners who have been appointed to determine that question 90 . The necessity contemplated is a public necessity. The public cannot take land or assess a tax for the construction of a drain merely for its benefit to private lands; nor can the owner of lands benefited be taxed therefor 91 . The necessity does not mean what you cannot absolutely get along without, that which is in- despensable or imperative, but only that which is convenient and useful 92 . Independent of the consideration of necessity on account of the public health, there is no authority in the legislature to enact laws for the condemnation of private property, and to levy taxes for the construction of drains; such legislative action is a provision for the exercise of those police powers inherent in every government for the protection of the people. As the basis of every valid pro- ceeding under these laws the drain commissioner must find that the drain is necessary to the public health 93 . 89. See First Order, 325, 91. Butler v. Saginaw Board, supra ; Barker v. Vernon Twp., 26 Mich. 22. 63 Mich. 516, 518. 92. Paul v. Detroit, 32 Mich. 90. See Jurisdiction of Equity 110. Courts. 373; Swan Creek Twp., 93. Alexander v. McQear, 146 v. Brown, 130 Mich. 380, 385. Mich. 45. .nil JURISDICTION, ETC. <259. Release of Right of Way. The proceedings of the commissioner are ex parte through the stage of attempting to secure the right of way 94 . Where a right of way is incomplete, the court may enjoin the pro- ceedings until the commissioner condemns the part not re- leased 95 . The giving of a written consent or license by a railroad company to cross its road bed with the drain, to- gether with building a culvert thereover, is a sufficient re- lease 90 . Releasing a right of way on one petition is not a release of right of way upon proceedings founded upon another petition, though over the same course 97 . \Yhere a person is not injured, no release of right of way is neces- sary, as for conveying additional water into a sufficient outlet 98 . C. L. 4334, insofar as it attempts to make a rail- road company construct a culvert without compensation, u unconstitutional, being contrary to the principles laid down in the highway crossing cases 99 . Form for Release of Right of Way. State of Michigan. } County of >ss. Toumship of Release of Right of Way in Drain. For and in consideration of the sum of si.r cents to each of us severally in hand paid by as County Drain Commissioner of County. 94. Kinnie v. Bare, 68 Mich. 99. Chicago, etc., R. Co. v. 625. Chappell, 124 Mich. 72. 95. Brady v. Hayward, 114 In Pere Marquette R. Co. Mich. 326, 334; Sturm v. Kelley, L. N. (filed July 15. 1909) it is 120 Mich. 689. held that there is a power to con- 96. Sturm v. Kelley, 120 Mich, demn a right of way across a 685, 688. railroad track, but the award must 97. Stum v. Kelley, 120 Mich. affirmatively show that the cost 685, 689. of a culvert was included in the 98. Sturm v. Kelley, 120 Mich. damages. 685. 689. 259 THE LAW OF TAXATION 362 Michigan, the receipt whereof is hereby confessed and acknowledged, and also in consideration of the benefits to the public health and to the lands owned by us severally, to be derived from the construction of a certain drain known as Drain more particularly de- scribed as set forth in Ex. A. hereto attached and made a part of this release, we do severally release and convey to the said county of , the right of way for said drain over and across all lands owned or occupied by us, or in which we have any interest, in the townships of , , , traversed by said drain, according to said Ex. A. being the minutes of sur- vey of said drain. This release shall include a strip of land lying rods zvide on each side of the center line of said drain, according to the survey thereof, to deposit excavations and for convenience in digging. The right of way hereby conveyed is for the sole and only purpose of constructing and perpetually maintaining said drain, the order of determination upon which bears date the day of In witness whereof we have hereunto set our hands and seals this day of L. S. L. S. In presence of State of Michigan. } County of > ss. Township of On this day of , before me the undersigned, the County Drain Commissioner of said county, personally appeared , , 363 JURISDICTION, ETC. 260 li'ho severally acknowledged the execution of the foregoing instrument for the intents and purposes therein specified. County Drain Commissioner. (Attach a copy of minutes of sun'c\, marking tliem Ex. A.) 260. Attempt to Obtain Release. The drain laws of 1871, as well as the subsequent laws, required the commissioner to attempt to obtain a release of right of way for the drain before making his application to the probate court for the appointment of special commis- sioners or a jury. This attempt is essential in order to confer jurisdiction upon the probate court. In this respect it follows the rule of law for condemnation of railroad right of way 1 . The fact of inability to agree is jurisdictional and may be controverted. The good faith of the attempt may be denied 2 . A person who purchases land after the survey has been made, cannot complain because the minutes of survey do not show the distance across his land, where such land is only a portion of a larger tract which, at the survey, were owned by one person 3 . Until the commis- sioner has attempted to secure a right of way, no notice is required to be given to any party 4 . Parties whose lands are not traversed by the drain cannot set up defects in con- demnation proceedings. Where parties are only liable to an 1. Whisler v. Drain Com'r., 40 2. Gd. Rapids, etc., Ry. v. Mich. 591 ; Dickinson v. Van Weiden, 69 Mich. 572. Wormer, 39 Mich. 141; Chicago, 3. Hackett v. Brown, 128 etc., Ry. v. Sanford, 23 Mich. 518; Mich. 141. Arnold v. Decatur Village. 29 4. Kinnie v. Bare, 68 Mich. Mich. 77; Morseman v. Ionia, 32 625; Wolpert v. Newcome, 106 Mich. 283. Mich. 357, 361. I 261 THE LAW OF TAXATION 364 assessment for benefits the proceedings are ex parte as to them until the notice of letting of contracts and apportion- ment of benefit is given 5 . 261. When Release Unnecessary. Upon the cleaning out of a drain, it is not necessary to acquire a new right of way; and the necessity thereof is not a question for the jury unless an individual is in some way damaged 6 . Neither is it necessary to obtain a release for the use of part of an existing watercourse when its size or condition is not changed 7 . Although the release does not cover all of the ground, specified in the first order, yet if in fact sufficient ground is released for the purpose of the drain, a person not injured thereby cannot complain; as where all of the land is taken from one side of the center line of the drain, instead of from both sides 8 . It is neces- sary to obtain a release from a railroad company for cross- ing its right of way with a drain, or compensate it in dam- ages. A provision to the countrary is unconstitutional 9 . A release, however, signed by the officers of the company, accompanied by the building of a culvert in pursuance of the drain proceedings, cannot afterwards be questioned 10 . 5. Hinckley v. Bishop, 152 8. Hauser v. Burbank, 117 Mich. 256; Roberts v. Smith, 115 Mich. 642. Mich. 5. 9. C. L. 4334; Chicago, etc., 6. Barker v. Mt. Vernon Twp., Ry. v. Chappell, 124 Mich. 72. 63 Mich. 516, 517. 10. Sturm v. Kelley, 120 Mich. 7. Brady v. Hayward. 114 685. Mich. 326, 334. CHAPTER XVI. PROCEEDINGS IN PROBATE COURT. 9262. Application. Form for Petition. 5263. Description of Lands. Form for Order for Appointment of Special Guardian. 9264. Citation. Form of Citation. 5265. Notice. Form for Printer's Affidavit. 5266. Hearing. Form for Summons. 5267. Appointment of Special Commissioners. 5268. Order Appointing. Form for Order Appointing of Special Commissioners. 5269. Oath of Special Commissioner. Form for Oath of Special Commissioners. 5270. Adjournment of Special Commissioners. 5271. Return of Special Commissioners. Form for Return of Special Commissioners. 5272. Disagreement of Special Commissioners. 5273. Venire for Jury. Form for Sheriff's Oath. 5274. Return of Jury. Form for Jury to Sign. Form for Order Confirming Report of Jury. 5275. Disagreement of Jury. 5276. Confirmation of Report of Jury. Form of Order Confirming Report of Jury. 5277. Delay in Proceedings. 5278. De novo Proceedings. 262. Application. The statute does not require that it be sworn to 1 . Neither, under the original Act of 1885, was it necessary that a copy 1. C. L. 54322 ; Kinnie v. Bare, land could call in the fence 80 Mich. 345. viewers to compel the digging of There have been various meth- a drain on a farm line in the ods in use to determine damages. same manner substantially that Until latter years, the question of they now divide line fences, public necessity, and notice of (Laws of 1827, Vol. 2, p. 325). proceedings taken, was largely or This law appears to have been in entirely overlooked by the legis- effect until 1857. In 1839 a land lature. In 1819, the supervisor, in owner could apply to a justice of his judgment, could dig a ditch the peace to determine the in the highway. (Laws of 1819. damages of digging a ditch across p. 453-4). In 1827, an owner of another person's lajid. In 1859, 262 THE LAW OF TAXATION 3G6 of the minutes of survey be attached thereto; it was suffi- cient to refer to the first order, which must be filed with the application 2 . No condemnation, and consequently no appli- cation to the probate court, is necessary when the proceed- ings strictly comtemplate a cleaning out of the drain 3 . Where a petition is dismissed for irregularities not affecting the preceeding papers, or where the petition is dismissed for want of proper service of notice of hearing, another application to the probate court may be filed based upon the same papers as the first 4 . The original minutes of survey need not accompany the application, nor need the copy filed the commissioners themselves selected the names of 24 inhabit- ants, each side striking off six of them, leaving 12 for a jury. (Laws of 1859, p. 1064). This law provided notice to the persons interested. This method appears to have been in force until 1869. In 1869, the county drain com- missioners could either apply to the probate court for the appoint- ment of special commissioners, or could apply to a sheriff or con- stable to write down the names of 24 men, each side striking off six. (Laws of 1869, p. , Act No. 43). In 1871 a similar provision was made as to the highway com- missioners, who were ex officio township drain commissioners. (Act No. 98 of Laws of 1871). Also, in 1871, the county drain commissioners were required to have the consent of a majority of the interested resident owners in order to apply to the probate court for special commissioners. Otherwise, they were required to summon a jury. A protest signed by two thirds of the interested parties suspended all further pro- ceedings upon the drain. (Act No. 169 of Laws of 1871). In 1875, the township commissioner was still left the right to apply to the probate court for the appointment of special commissioners, but he himself, if he desired a jury, selected the 24 names from which the j ury was to be chosen. ( Act 140 of Public Acts of 1875). In 1881, both township and county drain commissioners were compelled to apply to the probate court, with no provision for a jury. (Act No. 269 of Public Acts of 1881). This remained in force until 1885. By Act No. 227 of Public Acts of 1885, as well as by all subse- quent drain laws of which this act has formed the skeleton, the legislature has provided fo_r an application to the probate court where either special commission- ers are appointed, or a jury drawn, in accordance with the practice of the general railroad law. 2. Kinnie v. Bare, 80 Mich. 345. 3. Barker v. Vernon Twp., 63 Mich. 516. 4. See De novo proceedings, 365, post. Tinsman v. Probate Judge Sup. Court File No. 11778, McGrath's Mandamus cases, N. 611. :!i>7 PROCEEDINGS IN PROBATE COURT 262 in the probate court be signed by the surveyor 8 . A bill in equity will not lie, for alleged defects in the application to act on a drain, to restrain the drain commissioner from making his application to the probate court. The probate court is the proper tribunal to first pass upon all prior pro- ceedings; and if either party is aggrieved by its action, they may take the statutory certiorari 6 . It is sufficient if one land owner refuses to release ; the fact that he has not asked others will not bar an application 7 . Form for Petition. State of Michigan. The Probate Court of the County of Your petitioner , the drain commissioner County, Michigan, respectfully shows: i. That on the day of , an application in writing being dated the day of , was filed uith him as county drain com- missioner of said county, praying for the locating and es- tablishing a drain in the township of . ., , county of , Michigan, a certified copy of which application accompanies this application. Said application was made in due conformity unth the Statute, one-third of all the freeholders and owners of land traversed by the proposed drain, each of which signers is the owner of land which is liable to an assessment for bene- fits on the construction of the drain. That as soon thereafter as practicable, your petitioner proceeded to examine the route of the proposed drain and 5. Hackett v. Brown, 128 311. Mich. 141. 7. Patterson v. Mead, 148 6. Strack v. Miller, i:M Mich. Mich. 659. 262 THE LAW OF TAXATION 368 was of the opinion that it was necessary fur the good of the public health, and practicable, that said application should be granted. As a means of determining the practicability of the said proposed drain, your petitioner caused a survey and meas- urement of the said proposed drain to be made by , a competent surveyor, which survey was completed on , day of , and upon such survey he found that such proposed drain was practicable. That the route, line, commencement, terminus, grade, cut and excavations of said drain are set forth in the said min- utes of survey, a copy is hereto attached and marked Ex. A. 2. That your petitioner as such county drain commis- sioner as aforesaid, on the day of , made an order in writing, determining that the construction of the said proposed drain practicable and necessary for the good of the public health, and that said application should be granted and said drain should be known as the Drain, and that said drain should and ought to be located and established in accordance zvith the application and sur- vey thereof, set forth in Ex. A. That twenty days and more have elapsed since the making of the first order of determination aforesaid, and that all persons through whose lands the said proposed drain is to pass hare not executed a release of right of way and dam- ages on account thereof; and whereas your petitioner has endeavored during the said period of twenty days and since, to obtain said several releases as aforesaid, and hav- ing attempted to agree with all such persons for such re- leases and not hainng been able to do so; Now, therefore, your petitioner, as such county drain commissioner, hereby makes application to the Probate :;;. PROCEEDINGS IN PROBATE COURT Court for the said County of ................ , in said county the said lands arc situated, and petitions the court for the appointment of three disinterested commis- sioners who shall be residents and freeholders of tlie county of .......... , but not of the said township of .......... traversed or affected by such drain to determine* the neces- sity therefor for the taking of private property for the use and benefit of the public for the purpose aforesaid, and to award the just compensation for each particular tract to be taken therefor according to law; And your petitioner shows: j. That the names of the owners of land traversed by said proposed drain who neglected and refused to execute a release of right of way and damages in rny way arising from or incident to the opening and perpetual main t a! nance of said drain, placed opposite their respective descriptions, are as follows, to-wit; all of such owners being residents of the said county of .......... . . unless otherwise specified: John Doe, owner of tract southwest quarter and section 24 west half of west half of southwest quarter of section 24, north of range eight east, from which premises there is sought to be taken a strip of land ................ rods wide on each side of the center line of said drain according to the survey thereof: for excavating three one hundreths acres, to deposit excavation twenty-four one huudreths acres. Your petitioner asks that Mrs. John Doe, unfe of the above named party, be made a party hereto, because of her dower interest. Your petitioner further sho-^s that all other persons o?vn- ing lands traversed by said proposed drain hai'c ditJ\ and properly released the right of li-ay therefor. Dated, this ............ day of ............ County Drain Commissioner. 263 THE LAW OF TAXATION 370 263. Description of Lands. The statute requires that the application shall set forth the names of the persons, if known, who have not released the right of way and damages, the description of land owned by each such person who will be affected by the drain, and the fact that they have neglected or refused to execute releases of right of way and damages. The plain meaning of the statute is that each parcel belonging to separate owners shall be set forth, and the application shall contain a description of the land proposed to be taken for the drain described with as much certainty and particularity as is necessary in a deed of conveyance of bargain and sale. It should contain such data that its precise location may be found by the commissioners or jury, and its area computed. Where the description consists of a line merely, and em- braces nothing, it is fatally defective 8 . Where land is to be taken from the private owner for public purposes, the description should be as definite as is necessary in a deed ; and if several successive steps are to be taken, in the course of which the land must be identified and described, the description should be sufficient in every in- stance, that it may be seen that the successive steps are noi referable to different premises. The importance of this is especially manifest since a negotiation with the owner is contemplated ; and if no precise description of the land appears until at a late stage of the proceedings, it can never be known from the record whether the negotiation was or was not. for the land finally described, or whether the negotiations would have failed if the owner had been notified what the precise limits were of the land proposed to be taken 9 . 8. Kinnie v. Bare, 68 Mich. Mich. *78. 825, 630; Kroop v. Forman, 31 9. Mathias v. Carson, 49 Mich. Mich. 144; Nugent v. Erb, 90 465. Public Acts of 1885, Act 227, :;; 1 PROCEEDINGS IN PROBATE COURT Form for Order for Appointment for Special Guardian. State of Michigan. County of .-// (; session of the Probate Court for the county of at the probate office in the city of , on the day of , present Honorable , Judge of Probate. In the matter of the application of the county drain com- missioner for the appointment of special commissioners to determine the necessity of drain. ll'hereas, application has this day been made in writing /.- tliis court by the county drain commissioner for the appointment of special commissioners as aforesaid ; Therefor it is ordered that day of , at 10 o'clock in the forenoon of that day, at the office of the Judge of Probate in the city of , said county, the same is hereby appointed as the time and place of hearing, of such application before this court. It is also ordered that of the same is hereby appointed special guardian to appear for ami attend to the interest of affected by such proceedings and interested in said matter. It is further ordered that notice of this hearing be given to all persons interested, , Judge of Probate. Chap. Ill, 85, required the citation served upon the owners of lands to be served upon all persons traversed by the drain, who had interested or liable to an assess- not released the right of way. ment for benefits. This continued This provision has been main- in force until 1895. Public Acts tained through the subsequent of 1895. Chap. ITT, 5, provides acts, that the citation shall only be 264 THE LAW OF TAXATION 372 264. Citation. The object of the citation is to afford a hearing to the parties interested, giving them an opportunity to make objections and to take part in the selection of special com- missioners or jury 10 . It should contain the names of the non-resident owners, if known. Unless the citation runs to such as are known, by name, it will be invalid 11 . Naming the husband as owner, instead of the wife, is fatal where there is no personal service 12 . Under 3 H. S. 1740cl, the citation was required "to set forth that lands owned by the persons to whom it is addressed will be crossed by such drain, or will be subject to an assessment for its construction, and that a description and survey of such drain is on file with the court issuing such citation." A citation which affords precise data for determining that a particular description was crossed by the drain, although it did not specifically state that such partic- ular description was traversed by the drain, is good. It is not necessary to use the exact language of the statute, when the citation contains the substance, and the party is not misled 13 . Act 217 of Public Acts of 1895 requires only that parties whose lands are traversed by the drain shall be made parties in the probate court. There is no constitutional provision that parties who may be assessed upon an im- provement shall have an opportunity to be heard upon its necessity. The provisions of Art. XVIII, 2, 14, or Art. VIII, 2, 3 of Constitution of 1908 have reference only 10. C. L. 4324; Kinnie v. jurisdictional; Patterson v. Mead, Bare, 68 Mich. 634; Wolpert v. 14 L. N. 326, 138 Mich. 659. Newcome, 106 Mich. 357. 12. Bixby v. Goss, 54 Mich. 11. Campau v. Charbeneau, 105 551. Mich. 422, construing Act 203, 13. Wolpert v. Newcome, 106 Public Acts 1893; but that has Mich. 357, 360. since been amended, and not PROCEEDINGS IX PROBATE COURT to the taking of specific property for public uses. There is nothing in these provisions to prevent the determination of the necessity of a drain by the drain commissioner, sub- ject to the limitations on the conclusiveness of that deter- mination in favor of the owner of the land proposed to be taken, in tiie defense of condemnation proceedings, to which proceedings those liable to an assessment for benefits need not be parties 14 . The statute does not require the citation to be issued under the seal of the court, nor is it such a process as the constitution requires to be "in the name of the People of the State of Michigan." The citation may be served by any competent third party without a special appointment, who makes his return by affidavit 15 . The citation, however, must be signed by the probate judge 10 . It need not run to the supervisor of a township 17 , nor to the highway com- missioner 18 . Form of Citation. State of Michigan. ) Cr i SSt aunty of ) Citation to persons whose lands are traversed or affected by drain in tlie to:vnship of county, Michigan. To the toutiship of in said county as supervisor of said township, and to as the highway commissioner of said township, and to (give all the names of those who have 14. Roberts v. Smith, 115 Mich. a drain, that being an admin- 5, 7. istrative act. !.">. \Volpert v. Newcome, 106 16. Taylor v. Burnap. 39 Mich. Mich. 357, 361; In Gratoph v. 739. Probate Judge, McGrath Man- 17. Flynn Twp. v. Woolman. damus cases No. 610, it is held 133 Mich. 508. th.-M a probate judge though dis- 18. Kiley v. Bond, 114 Mich, qualified, may issue a citation on 447. $ 204 THE LAW OF TAXATION 374 not released the right of way) and to the owners and per- sons interested in the following described tracts of land in the township of , county of , Michigan, which are the lands traversed by the proposed drain, to-wit: (describe, by its correct description, every partial of land traversed by the drain where a release of right of way has not been obtained, give the number of acres proposed to be taken.) Whereas county drain commissioner of county. Michigan, has made application in ;>.'; itiii(; .'<'? the Probate C.nc t for the said county of bearing date the day of , /pop, for the appointment of three special com- missioners to determine the necessity for the good of the public health of the laying out and establishing the drain, therein described, commencing at the point (give the commencement and terminus of the drain and the route thereof as shown by the minutes of survey, accurately, show- ing where the line of the drain crosses each piece of land.) And, whereas, the said drain commissioner has filed in this court a certified copy of the application for the laying out and establishing of the said proposed drain signed by more tJwn one-third of all of the owners of land in the said 1 i townships traversed by the said drain, each of whom are the owners of land which will be liable to an assessment for benefits on the construction of the said drain, said signers being in number: And, zi'hereas, the said commissioner has also filed his first order of determination in this court on said drain, bear- ing date the day of , release of right of way so far is obtained, map, profile and minutes of survey thereof, signed by the surveyor thereof, which survey ivas completed on the day of 375 PROCEEDINGS IN PROBATE COURT 264 ( the first order of determination must be made within ninety days after the completion of the survey). And, whereas, the said commissioner, in his said applica- tion lias set forth the description of all lands traversed by the proposed drain, and the owners thereof, who have not released the right of way therefor requested so to do; And, whereas, on an examination by me of the proceed- ings of the said commissioner the same were found to be by me in accordance with the statute; And, whereas, at the time of the filing of the said appli- cation the said court did appoint the day of , at 10 o'clock in the forenoon of that day as the time of the tearing on said application; And, whereas, from said proceedings it appears that said proposed drain will cost or affect land owned by you, and that you have not released the right of way therefor; You, and each of you, are hereby cited to appear before the Probate Court of the said county of , in the city of in said county, on the day of , at 10 o'clock in the forenoon of said date, to be heard, if you shall desire to do so, with respect to the application of the said drain commissioner, for the appointment of three special commissioners to determine the necessity for the good of the public health of the laying out and establishing of the drain described in said application and the necessity of taking prirate property for the use and bencnt of the public for the purpose thereof and the just compensation to be made for each particular tract therefor. In testimony whereof I hare hereunto set my hand and caused the seal of the said probate court to be affixed here- to at the r/'/v of on the da\ of '.... Judge of Probate. THE LAW OF TAXATION 376 265. Notice. Notice of the time and place when the proceedings will be heard before the probate judge must always be given when it is sought to deprive the citizen of his property 19 . If the notice is not expressly provided for in the law itself, it is in all such cases necessarily implied; and the failure to give such notice renders the proceedings, even though otherwise regular, null and void 20 . The law regards the drain commissioner as representing in some degree, adverse interests. He acts as an adverse representative in striking off jurors, and possesses the very dangerous discretion of choosing to dispense with jurors altogether. (Act 140 of Public Acts of 1875.) A person acting in such a capacity cannot be allowed to proceed by his own suggestions before the probate court without giving his adversary a chance to object to improper commissioners and suggest proper ones. There can be no presumption that the probate court will be able to secure entirely impartial commissioners when no one is present to scrutinize them. The judge can have no means of searching out possible objections 21 . Under the law of 1885, mortgagees and lessees, unless they had a peculiar interest, were not entitled to notice of proceedings in the probate court. Neither did it require notice to be served upon a land owner not traversed or affected by the drain 22 . Proof of service of the requisite notice must be on file in the probate court before he has 19. Whiteford Twp. v. Probate Drain Com'r., 40 Mich. 229 ; Shue Judge, 53 Mich. 130, 134; Reinig v. Highway Com'r., 41 Mich. 638. v. Munson, 46 Mich. 138 ; Daniels 20. Strachan v. Drain Com'r., v. Smith, 38 Mich. 660 ; Bixby v. 39 Mich. 168 ; Willcheck v. Drain Goss, 54 Mich. 551 ; Lampson v. Corn's., 42 Mich. 105. Drain Com'r.. 45 Mich. 150 ; 21. Strachan v. Drain Com'r., Bettis v. Probate Judge, 54 Mich. 39 Mich. 168. 608; Van Buskirk v. Drain 22. Kinnie v. Bare, 80 Mich. Com'r., 48 Mich. 258; Milton v. 345, 347. :; ", ; PROCEEDINGS IN PROBATE COURT jurisdiction to appoint special commissioners 38 . The super- visor of a township is not entitled to notice of proceedings in the probate court 24 . Nor is there any provision requiring that the highway commissioner be served with notice of such proceedings 25 . When a third person has purchased land after the institution of condemnation proceedings, he is not in a position to review the proceedings by certiorari. and it would seem that he was not therefore entitled to notice 26 . The notice is in the nature of a process; and it is in- dispensable that the notice be legal evidence of its proper service. It can make no difference that the commissioner ha 24. Flynn Twp. v. Woolman, Mich. 234. 133 Mich. 508. 30. Wright v. Drain Com'r.. 44 25. Kiley v. Bond, 114 Mich. Mich. 557; Dickinson v. Van 447. Wormer, 39 Mich. 141. 26. Hackett v. Brown, 128 31. Lane v. Burnap, 39 Mich. Mich. 141. 736; Livermore v. Burnap. 39 27. See also 346; Tireman v. Mich. 350; Purdy v. Martin. 31 Drain Com'r., 40 Mich. 175. Mich. 455. 266, 267 THE LAW OF TAXATION 378 municipal officer has not received notice of proceedings in the probate court. Such owners must stand upon their own equities and jurisdictional defects 32 . Form for Printer's Affidavit. State of Michigan. County of being duly sworn deposes and says that he is one of the printers of The , a newspaper published and circulated in the said County of . , and that a notice of which the annexed printed notice is a true copy has been duly published in said paper once in each week for successive weeks; that the first publication thereof was on the day of , i ; and the second publication thereof was on the day on the day of , i ; and of , i ; and the third publication ivas the fourth publication thereof was on the day of , i ; Sworn to and subscribed before me this day of , Notary Public, County, Mich. My Commission expires 266. Hearing. The statute requiring the hearing to be fixed within forty days from the time of filing the application does not require a hearing within the forty days, as the court has power to 32. Kiley v. BoriS, 114 Mich. Act No. 1ST of 1891 provides 447. for adjournments of hearings. 379 PROCEEDINGS IN PROBATE COURT 267 adjourn thereafter. No other notice of an adjournment than a public anouncement thereof is required 38 . Where the probate court makes a mistake in the name of a. com- missioner, and the party intended to have been appointed serves, the proceeding is fatal. The court can not go be- hind an order of the probate court to discover an intent different from the one expressed 84 . ^267. Special Commissioners. Appointment. The special commissioners can only be appointed after proof of service of the required notice has been given and filed with the probate court. Therefore, if the probate court announces certain persons as being appointed, and before entering the order but after persons in interest have left, substitutes other names, such appointment is void since it is equivalent to appointing without any notice. The statute requires the appointment of commissioners to be made upon citation. This is for the purpose of affording opportunity for those interested to make such objections to the pro- ceedings as they see fit, as well as to object for cause to the selection made by the judge of probate. The commissioners must be disinterested men ; and if it should turn out, after the appointment was made, that one or more was interested or otherwise disqualified, the judge of probate would un- doubtedly have authority to vacate the order appointing them, and issue a new citation for the purpose of appointing qualified men. The statute did not provide for filling vacancies in such emergencies. The result is, the judge, if Act No. 203 of 1893, Chap. III. Bare, 80 Mich. 345, 349. 88, provides for bringing omitted 34. Bench v. Otis, 25 Mich, or new parties before the Probate 29, where by mistake, Henry Rad- Court without starting anew. ford was called William Radford. 33. C. L. 54325; Kinnie v. 268 THE LAW OF TAXATION 380 he has acquired jurisdiction, must begin de novo 35 . Although the statute requires the jury or special commissioners to be freeholders, yet, if a party is present and aids in striking or selecting them, and expresses himself as satisfied, he cannot afterward object because they are not all free- holders 36 . When special commissioners disagree, it not appearing in what manner nor how they are divided, new commissioners may be appointed 37 . 268. Order Appointment. The order of the probate court must identify the drain and the separate parcels of land proposed to be taken; other- wise, the commissioners cannot identify the land that ought to be taken in their return. The fair inference is that the commissioners cannot in their report, supply ommissions either of the drain commissioner or of the probate judge. They are required to have all of the drain proceedings be- fore them when they act, and are confined to the inform- ation therein contained as to the specifications of the drain and lands to be taken 38 . The order must describe the prop- erty to be taken; and if it gives only the line of the drain without its dimensions, it will be fatally defective 39 . The description of the land to be taken at every stage necessary to be stated, should be as definite as would be necessary for 35. C. L. 4325; Kinnie v. of the county, but not of the Bare, 68 Mich. 625, 632. townships traversed by the drain. Act No. 227 of 1885, Chap. Ill, 36. Clark v. Drain Com'r., 50 7, required special commissioners Mich. 618, 620. to be disinterested freeholders of 37. Parker v. Lincoln, 114 the county. This remained in Mich. 306. force until 1897. Act No. 254 of 38. C. L. 4326; Bennett v. 1897, Chap. Ill, 3, requires Olney, 56 Mich. 634, 637. special commissioners to be dis- 39. Kroop v. Forman, 31 Mich, interested freeholders, residents 144. 381 PROCEEDINGS IN PROBATE COURT 268 a deed 40 . A clerical error in the first name of one of the i commissioners appointed is fatal, and will require a de novo appointment of the commissioners 41 . Form for Order of Appointment of Special Commissioners. State of Michigan. ) County of ...... .. . j At a session of the Probate Court for the County of ............ . . , held at the Probate office in the city of .............. , on the ............ day of .......... , frcsent, Hon .................... , Probate Jndgc. In the matter of the application of the county drain com- missioner of said county for the appointment of three special commissioners to determine the necessity of the laying out and establishing .............. Drain. Whereas, on the .......... day of .............. , / ...... , an application in writing was made to this court by the said drain commissioner for the appointment of three special commissioners to determine the necessity for deepening and widening a drain through certain lands in the said township .......... and for the taking of private prope-rty for the use and benefit of the public for the pur- pose thereof and the just compensation for each particular tract to be paid therefor. And, whereas, this court did thereupon appoint the ............ day of ............ , / ...... , at 10 A. M. as the time of hearing on said application and issue a cita- tion to the persons therein named, setting forth that on 40. Mathias v. Carson, 49 Erb, 90 Mich. 278. Mich. 465; Milton v. Drain 41. Bench v. Otis, 25 Mich. Com'r., 40 Mich. 229; Nugent v. 29. 268 THE LAW OF TAXATION 382 the day of , / , at o'clock in the forenoon -of that day, all per- sons whose lands were to be traversed by such drain or who would be liable to an assessment for benefits in the construction thereof, and who had not released the right of way and all damages on account thereof, were to appear at the office of the judge of probate in the city of in said county, and show cause if any there should be, why said application should not be granted. And, whereas, the court did appoint as guardian ad lit em or special guardian for minors ivhich said acted in behalf of said minors. And, whereas, it appears by the affidavits of service and publication now on file with this court that said citation was duly and legally served upon each of said persons therein named who are resident oivners of land to be effected by such drain, and that due notice was given to all persons who are non-resident or unknoiam o-ivners of lands to be effected by deepening and widening of said drain. And, whereas, no demand has been made at the time of hearing on said application, by any person whose estate or interest is to be effected by these proceedings, for a jury of tivclve freeholders; And, whereas, it a>ppears to this court after a full hear- ing upon said matter that no cause exists why such special commissioner should not be appointed. THEREFOR, it is ordered by this court that 383 PROCEEDINGS IN PROBATE COURT -68 three disinterested and competent resident freeholders citi- zens of said county, but not of said townships traversed or effected by said drain, be and they are hereby appointed as such special commissioners to ascertain and determine the necessity of deepening and widening of said drain for the good of public health, and to appraise and determine the just compensation for each particular tract to be made by the oumers and parties interested in the real estate proposed to be taken for the right of way of such drain, and all dam- ages on account thereof. From the application and survey of said drain, now on file with this court, the several persons owning lands to be traversed by said account thereof liave not been released, together with a description of the tracks of lands oumed b\ such persons severally, with the amount of land to be taken from each several owner, is as follows, a copy of the minutes of survey of said drain being hereto annexed and marked "Ex. A" made a part of the description of lands proposed to be taken, to-wit: It is further ordered by this court, with the concurrence of the county drain commissioner as aforesaid, publicly expressed in court on the hearing had on said application, that , the day of , / , at o'clock in the forenoon of that day be and the same is hereby appointed as the time and as the place where said special commissioners shall meet the said drain commissioner and other parties in interest. 200 THE LAW OF TAXATION 384 to consider of the matter and things with respect to which the said special commissioners were appointed. And I further certify that at the time of the issue of the above order, public announcement was made by me of the appointment of three special commissioners therein named and of the time and place of their first meeting. Judge of Probate. 269. Oath of Special Commissioners. When proceedings are instituted to establish a drain, if private property is to be taken therefor, it cannot be done until the commissioners appointed by a court of record, or the jury, if one has been demanded, has, under sanction of their oath, found that it is necessary to the public health that such drain shall be constructed as described in the determination of the drain commissioner. This safeguard, if honestly observed by those in whom the trust is reposed, will be sufficient to protect the individual owner and the community to be taxed, from a perversion of the law to merely private purposes 42 . In carrying out laws for con- demning private property to public uses, it has always been held necessary to strictly observe every material requirement ; and courts have been equally constant in insisting that the proceedings should affirmatively show upon their face a substantial adherence to the course prescribed by the legis- lature 43 . Unless the dimensions and route of the drain are specified in the oath, there is no proper proof of record that their oath applied to a projected drain of any specific character and predetermined location, as it is necessary 42. Kinnie v. Bare, 68 Mich. 43. Kroop v. Forman, 31 Mich. 625, 629. 144. 385 PROCEEDINGS IN PROBATE COURT > should appear 44 . Either commisioners or jury must take the constitutional oath, which must be co-extensive with their duties. A recital of an oath in their report is in reality surplusage and of no effect. The law implies that they are to be first sworn to qualify them to report at all ; and it does not intend to have recourse to their report for proof of their oath. Until they are sworn in, they are not in a situation to report, much less in a situation to certify authoritatively that they have been sworn 45 . I ss. Form for Oath of Special Commissioners. State of Michigan. County of ....... We, each of us, do solemnly sircar that we are residents and freeholders of the said county of , and that we will faithfully discharge the duties of special com- missioners in the matter of the laying out and establishing of the Drain, in which we are called to act, described as set forth in Exhibit A hereto attached and made a part of this oath, and that w'e trill well ami truly determine the necessity of laying out and establishing the said drain for the good of the public health, and of the taking of private property for the use and benefit of the public for the purpose thereof and the just compensation for each particular tract to be paid therefor, which tracts of land are set forth in Ex. B. hereto attached. Special Com missioncrs. 44. Chapman v. Drain Com'r., 47 Mich. 154, 155 ; Powers appeal 49 Mich. 305. 29 Mich. 504, 510. 45. Bowler v. Drain Co"n'r., (25) 270,271 THE LAW OF TAXATION 386 Sworn to and subscribed before me this day of , > County Drain Commissioner of County, Mich. 270. Adjournments of Special Commissioners. In the case of adjournments or intervals of meetings, some method of information thereof must be found, be- cause the presence of the party opposing the condemnation is assumed throughout the proceedings. The parties in interest are entitled to' full notice of all adjournments 40 . 271. Return of Special Commissioners. The function of these commissioners is one of high im- port. They are expressly provided for in the constitution. They are required to determine upon oath the necessity for taking private property for the public good, and to ascer- tain and fix the amount of compensation or damages; and this implies that they shall know what the conditions are on which their judgment shall be exercised. The result may depend wholly upon the dimensions, and it cannot be intended that the legislature designed to leave commission- ers without the means to enable them to discharge their high duty intelligently. They should not only have before them the entire subject of their inquisition, in shape so distinct as to warrant an intelligible decision, but the pro- ceedings should show that such was the case. Their judg- ment ought to declare upon its face what lands it devoted to the public good, and what sort of ditch in its dimensions they approved: and all of this should appear in the record 47 . 46. C. L. 4326; Strachan v. record nowhere gave the dimen- Drain Com'r., 39 Mich. 168, 170. sions of the drain, or more than 47. C. L. 4328. In Milton v. a line. Similarly in Mathias v. Drain Com'r., 40 Mich. 229, the Carson, 49 Mich. 465. 387 PROCEEDINGS IN PROBATE COURT Their return should show that they had before them the papers required by statute to be before them 48 . The land proposed to be taken should be identified both in the order of the probate court appointing the commissioners, and in their return 40 . The value of each parcel taken must be found separately 50 . Form for Return of Special Commissioners. Return of Special Commissioners as to the necessity of laying out and establishing of Drain. //Y, the undersigned, having been appointed by the Pro- bate Court, County of , State of Michigan, as special commissioners to ascertain and determine the necessity of laying out and establishing the Drain, situate in the townships of County. Michigan, and further described as set forth in Exhibit A hereto attached, and to determine the necessity for the tak- ing of private property for the use and benefit of the public for the purpose thereof, and to appraise and determine the compensation to be made to the several owners or parties interested in the real estate proposed to be taken for the right of uvy of said drain, and damages for each particu- lar tract taken, do hereby make our returns to , County Drain Commissioner of the said County of of our hearing and determination in the premises as fol- lows: First, having been properly notified of our appointment as such commissioners and liaising been properly sti'orn to dis- 48. Bennett v. Olney, 56 Mich. 4:> Mich. 105. 34. 637. 50. Chicago, etc., Ry., v. Mans- 49. Willcheck v. Drain Com'r., field. 29 Mich. 418. 271 THE LAW OF TAXATION 388 charge our duties as such commissioners, which oath sub- scribed by us and sivorn to, is hereto attached; Second, on the day of , at the at o'clock in the forenoon of that day, that being the time and place designated in the order appointing us as such commissioners to meet, we met with yourself as such drain commissioner and the other parties in interest, then and there present and proceeded to view the lands and premises described in the survey as to be affected by said drain, and to hear the proofs and allegations of the several parties in interest relating to the proposed laying out and establishing of the said drain; That at such view and hearing there were produced by yourself as such drain commissioner the original application tor the laying out and establishing of said drain, minutes of your action thereon, so far as said minutes of sur- vey on said drain signed by the surveyor thereof, the first order of determination thereon, release of right of way so far as obtained, map and profile of said drain; also certified copies of the order of the Probate Court of said county appointing us as such special commissioners and of the application of the said drain commissioner to said court for the appointment of such commissioner as aforesaid, and of the citation issued thereon together with the proofs of service annexed thereto, which map, profile and certified copies as aforesaid are hereby made a part of this return. Fourth, That upon such view and hearing after hearing the proofs and allegations of the several parties in interest li'ho were there to present the same, ive ascertained and determined, as such special commissioners as aforesaid, and do determine that the laying out and establishing of the said drain as described in said Exhibit A, is necessary for 889 PROCEEDINGS IN PROBATE COt'KT ///r good of the public health ami we do further determine that it is. necessary to take private property therefor, here- inafter more particularly described, for the use and benefit of the public for the purpose of said drain. Fifth, We the said special commissioners as aforesaid, did also ascertain and hereby do determine the just compensa- tion to be made and allowed in each case for the real estate taken for the right of way of said drain, and for the dam- ages by reason thereof, to each party as set forth in Exhibit B hereto attached (in Exhibit B set forth a description of the land taken from each parcel or tract of land, for the drain, together with the damages awarded therefor. Dam- ages should be awarded to the wife for her dower interest) and we do further certify and return that our determina- tion as to the necessity for the taking and using said private property for t]\e use and benefit of the public for the pur- pose of said drain, and our appraisement and determination of the damages and compensation justly to be made to the owners or persons interested in each particular tract of land taken for the purpose aforesaid, were arrived at in accord- ance with our best judgment and ability and without favor or partiality to anyone; also that the several compensations and awards as above returned, have been made and deter- mined by us without reference to any benefit that may accrue to the said several tracts of parcels of land in con- sequence of the laying out and establishing of said drain. We further certify and return that the total amount of dam- ages and compensation awarded by us is dollars; Given under our hands this day of Special Commissioners. 272 THE LAW OF TAXATION . 390 (A complete copy of the minutes of survey marked Ex- hibit A should be attached to the oath and this' oath at- tached to this return of the special commissioners oath to be signed by officer selecting jury.) f 272. Disagreement of Commissioners. Where special commissioners make a unanimous return simply that they are unable to agree, the drain commissioner is authorized to petition for the appointment of new special commissioners 51 . A majority of the special commissioners, only, is necessary to a determination. The word "com- missioners", as used in the constitution, means commis- sioners clothed with such powers as prior to the adoption of the constitution they had been clothed with, that is, the right to decide all questions by a majority vote and H. S. 2, par. 3 (R. S. 1846, Chap. I, 3 sub. 3) car- ried into effect the rule by which such decisions were reached by a majority of the commissioners. This section antedated our present constitution and provides, "All words purporting to give a joint authority to three or more pub- lic officers or other persons, shall be construed as giving such authority to a majority of such officers or other per- sons, unless it shall be otherwise expressly declared in the law giving the authority. When a tribunal is invested with powers to be exercised in the public interests, it is essential that all of the members should act upon the mat- ter in hand; but a majority may decide." The reason for the rule is that matters of public concern should not be delayed, perhaps indefinitely, by insisting upon unanimity in council. This rule has been applied on principle or by 51. Constitution of 1850, Art. of 1908, Art. XIII, 2. Parker XVIII, 2, Beecher's Constitution v. Lincoln, 114 Mich. 306. I'M PROCEEDINGS IN PROBATE COURT statutory direction, both to boards of commissioners, by whom the necessity of the work is to be determined, and t> those charged with the duty of assessing compensation. But, unless the statute plainly permits, the condition that all members of the tribunal must participate will not be relaxed 52 . $273. Venire for Jury. Tiuler the drain law of 1871, the first description of the land to be taken for the drain appeared in the venire for the jury. Where the venire described only the line of the drain, without giving the dimensions, or specifying the width to be taken, it was held fatal to the proceedings 53 . The description should be as definite at every stage of the proceedings as would be necessary -for a deed 54 . Where a jury is called, but the extension of the drain over con- testant's land is abandoned, such person cannot object to defects in the proceedings of the jury 55 . Form for Sheriff's Oath. At a session of tfte Probate Court held at the Probate Office in the city of , in the county of , on the day of ; present, Honorable ,. ., Judge of Probate. In the matter of the laying out and establishing of the Drain. I, Sheriff of said County, do solemnly stsear that in selecting persons who act as jurymen to ascertain and de- 52. Scrrell v. Patterson. 107 144. Mich. 234, 237; In re Church :.4. Mathias v. Carson, 49 Street, 49 Barb. 45 ; In re Broad- Mich. 465; Chapman v. Drain way, 63 Barb. 472; Astor v. Com'r.. 49 Mich. 305. Mayor, etc., 62 N. Y. 580. :,:,. Mayhee v. Drain Com'r.. 53. Kroop v. Forman, 31 Mich. 4. r > Mich. 568. 273 THE LAW OF TAXATION 392 / ermine t]\c necessity for the laying out and establishing said drain that I will select such persons, freeholders of the said county of , and such persons, free- holders of the said county of , and dis- interested persons, according to my best judgment with- out favor or partiality to either party, and that I will do so in accordance zvith the statutes in such case made and provided. Sworn to and subscribed before me this day of Judge of Probate. Form for Summons. State of Michigan. ) County of ) At a session of the Probate Court for the said County of , held at the Probate office in the city of on the day of , present the Hon '.., Judge of Probate. To the Sheriff of said County greeting: In the name of the people of the State of Michigan, you are hereby required to summons (insert the twelve names selected) to appear before the Probate Court of said county at its office in the city of in said county on the day of . . , at o'clock in the forenoon of that day, to make a jury to ascertain and determine the necessity for the laying out and establishing of the Drain, which drain is described as set forth in Exhibit A hereto attached, (set out a com- :!!:; PROCEEDINGS IX PROBATE COURT 274 pletc copy of the minutes of snn'ey and mark the same Exhibit A mid attach to the foregoing also set off and mark Exhibit B a complete description of each parcel of lami proposed to be taken) such jury is to determine the neces- sity for taking the private property as set forth in Exhibit B hereto attached for the use and benefit of tlie public for the purpose of said drain, as ivell as to determine the necessity of said drain for the good of the public health. Judge of Probate. 274. Return of Jury. The section of the law referring to commissioners in railroad cases seems to contemplate that a majority of them may determine the compensation. If the term "jury" as used in the constitution authorizes anything less than a unanimous verdict, it means what it does not signify in any other part of the constitution. Such a body of men are more than appraisers and were known at common law as a jury of inquest, and was so intended by our constitu- tion. Their verdict must be unanimous 56 . The jury of in- quest under our constitution is the common law jury. Hence it follows that their verdict cannot be impeached by affidavits of themselves that they arrived at their result in any improper manner, as by average 57 . Unlike the prac- tice in railroad cases, the probate court has no power to set aside the report of the jury which finds that the con- struction of a drain is unnecessary 58 . It is not. per se, 56. C. L. 54328. Chicago, etc., 57. Wixom v. Bixby, 127 Mich Ry. v. Sanford. 23 Mich. 41R. 479, 486. Kress v. Probate Judge, 92 5S. Palmer v. Willett. I Midi. 372; Wixom v. Bixby. 127 Mich. 86. Mich. 479, 486. 275, 276 THE LAW OF TAXATION 394 a mistrial for the commissioner to enter the jury room alone and furnish measurements, tax rolls, etc., when he does not assist in making the awards 59 . Giving a jury their dinner and furnishing them cigars, by one interested in the proceedings, is ground for setting aside their ver- dict 60 . 275. Disagreement of Jury. When a jury is unable to agree, it is the duty of the probate judge, on the request of a person in interest, to impanel a new jury in the same proceedings. It is ap- parent from the provisions of the statute that the proceed- ings were to be ended only when the jury or commissioners should decide the drain to be unnecessary, and not upon a disagreement of the jury. There is no provision in the statute as to what proceedings shall be had in a case of a disagreement of the jury; but it must have been the intent of the legislature that the proceedings should continue until an agreement was reached 61 . 276. Confirmation of Report of Jury. The practice follows that used in condemning right of way for railroad purposes. However, the court, in drain proceedings, had no power to allow costs to the objectors 62 . Form for Jury to Sign. State of Michigan. County of At a session of the Probate Court for the County of at the Probate Office in the city of 59. Patterson v. Mead, 138 61. Kress v. Probate Judge, 92 Mich. 659. Mich. 372. 60. Harrington v. Prolate 62. Patterson v. Mead, 148 Judge, 153 Mich. 660. Mich. 659. 395 PROCEEDINGS IN PROBATE COURT 276 , on the day of , present the Hon , Judge of Probate. In the mutter of determining the necessity of laying out and establishing the Drain. We, and each of us, do solemnly swear that we are resi- c.ent freeholders of the county of , but not of the township traversed or affected by said drain, to- TV//; . ; and that we trill in the matter of determining the necessity of laying out ami establishing said drain, which drain is described as set forth in Exhibit .-I hereto attached and made a part of this oath, that we trill justly and impartially ascertain and determine the necessity therefor for the good of the public health and the necessity for taking and using private property for the use and benefit of the public for the purpose thereof, and the just compensation for each particular piece if we shall deem /' necessary that the same be taken; and that we trill arrive at such damages without any reference to the benefits to be derived by any parcel of land. Further, that we trill act in this matter according to our best judgment and ability tvith- out favor or partiality to anyone, and make our report ac- cordingly. (This is sworn to and signed before the Judge of Pro- bate.) Form for Order Confirming Report of Jury. State of Michigan. } County of j At a session of the Probate Court for the County of , holding at the Probate Office, city of on the day of , present, Hon , Judge of Probate. 277 THE LAW OF TAXATION 396 In the matter of the laying out and establishing of the Drain. On reading and filing the report of the jury heretofore appointed by this Court to ascertain and determine the neces- sity of laying out and establishing said drain through certain lands in the township of , said county, ichicli said drain is described as set forth in Exhibit A hereto at- tached, and for the taking of the private property for the use and benefit of the public for the purpose thereof as set forth in Exhibit B hereto attached, and for the just compen- sation for each particular tract to be made therefor; and it appearing to this court tfiat said report is just and impartial and is without favor to anyone, and in accordance with the statute, therefore it is ordered that said report be and the same is hereby confirmed. Judge of Probate. 277. Delay in Proceedings. When the statute does not fix any specified time in which the commissioner must proceed, much is left to his discre- tion and convenience. Where a petition was filed in Aug., 1869, and no action was had until May, 1871, it was held not an unreasonable delay 63 . A year's delay, in making a survey, if unexplained, may be unreasonable 64 . Where a petition was filed in October, 1891, the survey was made in November, 1892, the first order in March, 1893, and the application to the probate court was made in September, 1893, the proceedings were held good 65 . The ninety days 63. Davidson v. Otis, 24 Mich. Judge, McGrath's Mandamus 23. cases, N. 614. 64. Wright v. Drain Com'r., 65. Moore v. Mclntyre, 110 44 Mich. 557; Schenk v. Probate Mich. 237. PROCEEDINGS IN PROBATE COURT ? - 7 "i time for making the first order of determination does not begin to run until the minutes of survey are delivered to the commissioner by the surveyor; and this provision is only directory, and not jurisdictional 60 . c=278. De Novo Proceedings. If a mistake is made in the appointment of special com- missioners so that such appointment is void, the probate judge should vacate such order and issue a new citation, or begin dc novo 97 . Where the jury disagrees, the pro- bate court should at once impanel another in the same proceedings, upon the request of a party in interest 68 . Thus, where the commissioners return that they cannot agree without giving any reasons or making any finding con- cerning the proposed drain, the drain commissioner may petition for the appointment of three others 69 . Where a right of way was incomplete, the circuit court ordered the proceedings stayed until special commissioners could pass upon this particular parcel, without passing upon the neces- sity of taking all of the property through which the drain passed 70 . The provision of the statute in this regard is equitable and should be sustained. It is not a provision to declare valid and effective proceedings already had. If it were, the power of the legislature would be limited to dispensing with non-essentials. Jurisdictional essentials could not be dispensed with. The rule is that the legisla- ture may validate acts which it might previously have 66. Flynn Twp. v. Woolman, 69. Parker v. Lincoln, 114 1.i:i Mich. 508. Mich. 306, 309. 67. C. L. 584366. 4369; In re 70. Brady v. Hayward, 114 Probate Court C. L. 4325. Mich. 326. 334; Gillison v. Cress- Kinnie v. Bare. 68 Mich. 625, 634. man. 100 Mich. 591, 596; Hackctt 68. Kress v. Probate Judge, v. Brown, 128 Mich. 141, 143. 92 Mich. 372. 278 THE LAW OF TAXATION 398 authorized, but can go no further. As the legislature could not provide in advance that the steps to acquire jurisdic- tion might be omitted, so it cannot, by direct enactment after failure to comply with adjudicated prerequisites, de- clare proceedings valid notwithstanding. But this is not an attempt to validate these proceedings without giving the parties concerned an opportunity to be heard. Certain work had been done in advance of a valid determination of necessity, and in advance of a valid condemnation. It is none the less equitable that those benefited by this work should pay for it, nor is it any the less proper that the question of the necessity for taking property for a public use be determined 71 . C. L. 4366, Act 272 of Public Acts of 1899, providing for the completion of drains begun but not completed because of defects in the proceedings, au- thorizes the drain commissioner to spread a tax de noro, where his first tax was set aside. It will not vitiate the proceedings, even though it was not completed 72 . A dc novo proceeding is based upon the statute, and must con- form thereto both as to the circumstances under which it is resorted to, and the procedure. It is competent for the legislature to provide for the completion of a partly fin- ished drain, and point out a way for the correction of errors so as to make it possible to complete it, although the expense is increased thereby 73 . One application to the probate court may be quashed and another one filed, based upon the same prior proceedings 74 . An assessment, made without notice, may be set aside and a new one ordered 71. Hauser v. Burbank, 117 Mich. 525, 527. Mich. 463, 465. 74. Tinsman v. Probate Judge, 72. Pollock v. Sowers, 137 McGrath's Mandamus cases, No. Mich. 368. 610. 73. Anketell v. Hay ward, 119 PROCEEDINGS IX PROBATE COURT made 76 . A township board, which acts improperly upon an appeal to it to review a drain assessment, will be com- pelled to reconvene and review the assessment properly 78 . Where one party did not release, proceedings will \ye re- manded back to that point 77 . The probate judge, how- ever, cannot entertain a motion to set aside the finding of a jury that the drain is not necessary. This is different from refusing confirmation 78 . 75. Cook v. Covert, 71 Mich. 249, 253. 76. Thomas v. Walker Twp. Board. 110 Mich. 597. (WH. 77. Sturm v. Kelly, 120 Mich. 685. 78. Palmer v. Willett. 105 Mich. 86. CHAPTER XVII. LEVY OF THE TAX, AND ITS INCIDENTS. 279. Final Order. Form of Final Order for Determination. 280. Notice of Sale and Assessment. Form of Notice of Sale. 281. Sale of Drain. 282. Apportionment of Benefits. Form for Apportionment of Benefits. 283. Description of Lands Assessed. 284. Appeal from Assessment. Form for Claim of Appeal. Form for Order of Hearing on Claim of Appeal. Form for Appointing of Board of Review. Form for Oath of Board of Review. Form for Report of Board of Review. 285. Costs and expenses. 286. Board of Supervisors. 287. The Supervisor. 288. Construction of Drain. 289. Tax Roll. Form for Certificate of Drain Tax Roll. 290. Sale of Lands for Taxes. 291. Drain Funds and Orders. 292. Liability for Tax. 293. Liability of Townships. 294. Liability of Petitioners. 294a. Interest. 279. Final Order. An unsigned final order is a nullity. They are not such orders as are contemplated by the provision which requires notice within ten days after the making in order to bring certiorari. Even if the tax payer was fully apprised of the filing of such an order he would not be bound to as- sume that any attempt would be made to proceed under it 1 . 1. C. L. 4340. Loree v. Smith, Act 254, Laws of 1897, Chap. 100 Mich. 252, 255. VII, 1, first provided for the 401 LEVY OF THE TAX ji .'? 'J Form for Final Order of Detremination. Final Order of Determination of drain. ll'hcrcas. I, , as county drain commissioner of , county, Michigan, did on the day of make (/;; ss. County of / The undersigned shoivs that he is the owner of lands described as folloivs, to 7et>: (Describe lands assessed accurately) that said land is assessed per 25. Smith v. Carlow, 114 Mich. Mich. 591 ; Cook v. Covert, 71 67; Clinton Twp. v. Teachout, Mich. 249. 150 Mich. 124. See Equity Juris- 27. Huxtable v. Kirby, 135 diction, 373, post and 349, supra. Mich. 157. Jones v. Gable, 150 Mich. 30; 28. Murphy v. Dobben, 137 Hinckley v. Bishop, 152 Mich. 256. Mich. 565. 26. Scholtz v. Ely, 123 Mich. 29. Hudlemeyer v. Dickenson, 541; Gillison v. Cressman, 100 143 Mich. 250. 411 LEVY OF THE TAX 284 cent of the cost of the drain for benefits in the construction of said drain, such assessments for benefits tens made by the county drain commissioner of said county on the da v of That the undersigned himself agreed by the said assessment and apportionment so made as afore- said and hcrcb\ makes application to the probate court, said county of for the appointtnent of a board of review, to which board he hereby claims an appeal from the assessment so made as aforesaid. The undersigned also herewith files i<.'ith this court the necessary bonds for cost in this proceeding as required by law. Dated this day of Appellant. Form for Order of Hearing on Claim of Appeal. Probate Court for the County of At a session of said court held in the probate office in the city of on this day of .......... present the Honorable , Judge of Probate. Whereas has claimed an appeal from the assessment for benefits on the . . . ., drain from the order of the count \ drain commissioner on the day of , and is filed as agitory bonds required therefor; Therefor, it is ordered by this court that the day of at 10 o'clock in the forenoon of that day, be fi.red as the time for hearing said application and appointing such board of review. It is further ordered that a copy of this order be served 284 THE LAW OF TAXATION 412 upon the said county drain commissioner at least days prior to the time fixed for the appointment of the board of revieiv . Judge of Probate. Form for Order Appointing of Board of Review. State of Michigan. } Probate Court for the County of } ' At a session of said Probate Court held at the Probate Office in the city of on the day of , present the Hon Judge of Probate. In the mutter of the appeal from the assessment of benefits on the drain. This being the day fixed for the appointment of such board of review, and after the hearing of parties in interest, it is ordered that , three disinterested and competent freeholders of the said county of but not residents of the said townships of which said drain or the lands affected thereby are situate, be and are hereby appointed as a board of review to review said assessment and apportionment of the per cent of benefits in the construction of the drain. It is ordered with the concurrence of the county drain commissioner that the cay of at 10 o'clock in the forenoon of that day be and the same is hereby appointed as the time of meeting of such board and (describe place of meet- -I 1 ! LEVY OF THE TAX 284 ing accurately) as the place where said board of review shall meet to review such apportionment. Judge of Probate. Form for Oath of Board of Review. State of Michigan. ) County of ) We do severally, solemnly wear to faithfully perform the duties of a board of review on drain, to rrciVrc' the assessment for benefits upon said drain, to hear the allegations of the parties in interest and to view the lands benefited, and if in our judgment there be mani- fest error or inequality in such assessment, to make such charges as ive deem just and equitable, without favor or partiality to any one. Given under our hands this day of Board of Review. Form for Report of Board of Review. We hereby certify that pursuant to an order of the pro- bate court for the county of , we the undersigned, constituting the board of review of drain, did meet on the day of , at 10 o'clock A. M., at That at the time and place aforesaid we proceeded to vine the land and premises of the drain. special assessments district, and to review the assessment 285 THE LAW OF TAXATION 414 and apportionment of benefits u>pon said drain, made by the county drain commissioner of said county, and to hear the proofs and allegations of all parties in respect to the matter of said appeal. That in our judgment there is manifest error cmd in- equality in said assessment and apportionment and ive do hereby order the following changes to be made, deeming such changes fust and equitable; (describe each piece of land upon which any change is made, giving the per cent assessed by the county drain commissioner and the per cent as fixed by the board of review.) Given under our hand this day of Board of Review. 285. Costs and Expenses. Whenever a portion of the drain proceedings are set aside and the commissioner begins de novo at an earlier stage, the expense of the work and proceedings so set aside is a part of the cost of the drain, and may be included in the assessment 30 . If the drain has been partly constructed, and the entire proceedings set aside, the commissioner may begin de novo, on a new petition, and include the cost of the work done as part of the expenses of the new proceedings 31 . An attorney fee is not a legal charge against a drain; and it must appear that clerk hire does not exceed the per diem 30. C. L. 4354: See De Novo 31. Hauser v. Burbank, 117 Proceedings. 365. Gillison v. Mich. 463, 465; Anketell v. Hay- Cressman, 100 Mich. 591. ward, 119 Mich. 525, 527. 415 LEVY OF THE TAX 86 of the commissioner 32 . The provision authorizing a levy of 1Q% above the cost of the drain is constitutional 83 . It is competent for the legislature to provide that the board of supervisors may disallow any item of the expense of a drain 34 . On a motion to have the court retax costs, he can only consider the objections filed with the clerk. Certi- fied copies of exemplification of record on a return to a writ of certiorari, are not taxable as costs. It is the duty of the prolate judge to make this return for $2.00, follow- ing the practice of certiorari from justice courts 35 . Witness fees, stenographer fees and attorney fees are not recover- able, by the parties whose lands are taken, even though a jury was demanded to determine the necessity, etc. of the drain 36 . Costs of the circuit court cannot be taxed against either party in any action instituted for the purpose of setting aside any sale of delinquent lands for taxes 37 . !j286. Board of Supervisors. The board may refuse to order a drain tax spread because of illegalities in the proceedings 38 . It has no power, how- ever, to order a drain tax spread at large either upon the county or the townships, instead of upon the lands bene- fited 39 . The statute provides that no drain tax shall be spread unless directed by the board, as in the case of town- 32. Zink v. Board of Super- visors, 68 Mich. 283. 33. C. L. 4354; Auditor Gen- eral v. Melze. 124 Mich. 285. 34. Rice v. Probate Judge, 141 Mich. 693; Alberts v. Gibson, Ml Mich. 698. .15. Patterson v. Calhoun Judge, 144 Mich. 416. 36. Patterson v. Mead, 138 Mich. 659. 37. Hausy v. Miller, 15 L. N. 770. 38. C. I.. 4356: Smith v. Board of Supervisors, 115 Mich. 202 ; Tinsman v. Board of Super- visors. 90 Mich. 382; Zink v. Board of Supervisors, 68 Mich. 383. 39. Butler v. Saginaw Board, 2fi Mich. 22. $ 286 THE LAW OF TAXATION 416 ship taxes. The adoption of a report by the board in which appeared a certain sum of money to be spread as "drain tax," is not a direction to spread the tax such as the statute contemplates, and the supervisor of the town- ship will not be compelled to spread such tax 40 . The adoption of a report that the supervisor be authorized to reassess certain drain taxes, is a sufficient direction to place them upon the township roll 41 . The board will not be compelled to order spread a drain tax until all of thv. records of the proceedings have been filed with the county clerk 42 ; but a drain tax will not be vitiated because not reported 43 . The statute 44 authorizing the board of super- visors to direct such of the several amounts of money pro- posed to be raised for township, school, highway, drain, and all other purposes, as shall be authorized by law, to be spread upon the assessment rolls of the proper town- ship, does not endow the board with unlimited power to determine the validity of taxes assessed by township and county officers; and the action of the board is not always essential to the spreading of the tax. It is only the duty of the board to see that the sums are authorized by law, and then the duty to give the proper direction is imperative. This provision of the statute must be construed with other provisions controlling special proceedings, and especially where such statutes are passed subsequent to the one above referred to. The drain law provides a speedy remedy for those desiring to contest the validity of the proceedings. Under the statute, the courts have no power to review the action of a drain commissioner for defects in his proceed- 40. Post v. Harris, 95 Mich. 88 Mich. 245. 321. 43. Lambach v. O'Meara, 107 41. Bumps v. Jepson, 106 Mich. 29 ; Matran v. Tompkins, Mich. 641. 99 Mich. 528 42. Conley v. St. Clair Board, 44. C. L. 3860. 417 LEVY OF THE TAX ings, unless the party complaining takes steps to determine their validity within the time fixed by the statute. It would be incongruous to confer this power upon the board after the time fixed for the courts to exercise it has expired. If this were the law, the construction of 'the drain must be deferred often times for a year or more, awaiting the action of the board, and the law providing for a review would become a nullity. The drain law provides a spec'al remedy, and anyone complaining must avail himself of that remedy. If he avails himself of it, he has had his day in court. If he fails to avail himself of it, he is barred by the statute from questioning its legality in any suit at law or in equity. The board cannot refuse to spread the tax because of alleged excessive adjournments of the sale and assessment, or because of a small change in the first order of determination, in the size of the drain 45 . However, the board may refuse to spread the tax for errors occurring more than ten days after the final order is filed since the statutory certiorari could not be taken to such defects, under Act 272 of Public Acts of 1899 48 . It is constitutional to permit the board to require the written consent of a majority of all members of the town boards whose town- ships are traversed by a drain to consent to the construction of a drain 47 . It is competent for the legislature to provide that the drain commissioner shall submit to the board of supervisors the items of expense upon all drains before the 45. Horn v. Livingston Co. granting of the writ is a dis- Board, 135 Mich 553. In Sher- cretionary measure, and it will wood v. Rynearson, 141 Mich. 92, not be allowed where the relator the court refused to grant a himself has not clean hands, mandamus to compel the super- 46. Kenyon v. Ionia Board, 138 visor to spread a drain tax, Mich. 544. where the answer to the petition 47. Chandler v. Heiser, 153 charged fraud, and the relator Mich. 1, construing Act 21 of demurred to the answer. The Public Acts of 1905. (27> 287 THE LAW OF TAXATION 418 sale of the drain, and that such board may disallow any item thereof. It is also competent to provide that the board of supervisors may provide further conditions than that specified in the statute, for the sale of drains. The constitution, proves that the legislature may delegate powers of local legislation to municipalities and board of super- visors; and a drain is a local matter 48 . 287. The Supervisor. Originally the supervisor could refuse to spread a drain tax when the proceedings were fatally defective; and the court would permit him to make this defense 49 . The statute provides that the clerk shall certify the drain tax to the supervisor, and that he shall lay the same before the board of supervisors. No discretion is lodged with either of them. The levy of taxes and assessments cannot depend upon the opinion of those officers as to their regularity. While they could not be compelled to perform the specified acts unless the proper assessment roll was filed and certi- ficate delivered, it is not for such officers to sit in judg- ment upon the propriety of enforcing tax levies and assess- ments. It does not lie with such a person, as a ministerial officer, to object that the law under which the tax was laid was unconstitutional. He is not authorized or required to adjudicate the law. In a summary proceeding on hearing for mandamus, the court will not determine the question of the constitutionality of the law, involving the rights of third persons, but will leave that question to be settled when properly presented by parties to an action. A public 48. Constitution of 1850, Art. Albert v. Gibson. 141 Mich. 698. IV. 38; Beecher's Constitution 49. C. L. 4357. Nugent v. of 1908, Art. VIII, 8. Rice v. Erb, 90 Mich. 278. Hubbell v. Probate Judge, 141 Mich. 693; Robertson, 65 Mich. 538. 11!" LEVY OF THE TAX officer entrusted with the collection and disbursement of revenue has no right to refuse to perform his ministerial duties, prescribed by law, because he may apprehend that others may be injuriously affected by it. He is not respon- sible for the law, or for the possible wrongs which may result from its execution. Public policy, as well as public necessity and justice, require prompt and efficient action from such officers. The consequences would be ruinous if they could withhold their services, and the necessary means, either from timidity or captiousness, until all questions of law which might arise in the performance of their official duties should first be judicially settled 50 . It is. however, within the discretion of the court to refuse the writ of mandamus in cases where the circumstances show that justice requires it 81 . Neither can the supervisor set up a pending appeal in the supreme court to review the proceedings of the drain in question, as an excuse for not putting the tax on the roll 52 . Under Act 272 of Public Acts of 1899, the supervisor is authorized to claim an appeal in behalf of his township, and to petition the probate court to appoint the board' of review therein specified 83 . He is not entitled to notice of drain proceedings before the probate court 54 . A private person who would be entitled to an order on the fund, is competent to apply for a mandamus. In case the time has gone by forgetting the tax on to the proper roll, it will be ordered spread the next year 55 . While a rejected r>o. Lambach v. O'Meara, 107 94 Mich. 386. Mich. 29, 30; Smyth v. Titcomb. 52. Brown v. Nehmer, 128 31 Me. 286; People v. Halsey, 53 Mich. 690. Barb. 547 ; Waldron v. Lee, 5 53. Long v. Probate Judge, 130 Pick. 328; Hudson Village v. Mich. 338. Whitney. 53 Mich. 158; Schultz 54. Flynn Twp. v. Woolman, v. Smith. 119 Mich. 634. 133 Mich. 508. 51. Nugent v. Erb, 90 Mich. 55. Canal Co. v. Supervisor. 278; Cheboygan v. Mentor Twp., 139 Mich. 248. 288, 289 THE LAW OF TAXATION 420 drain tax may be reassessed, the supervisor has no authority so to do unless the record of the board of super- visors shows the particular parcel to be assessed, and the drain for whose benefit it is levied 56 . 288. Construction of Drains. Where a drain, is constructed by the contractor larger than called for by the specifications, it affords no ground for setting aside the drain proceedings or the taxes. The contractor may be guilty of a trespass which the com- missioner is in no manner responsible for 57 . The accept- ance, by the drain commissioner, of a drain contract which is in fact unfinished, is not final. Although the completion of the work has been certified to by the commissioner, he may yet stop the payment of orders issued therefor, though such orders are held by innocent purchasers for value 58 . The fact that the commissioner has certified that a drain is completed, when it is not, will not justify setting aside the tax 59 . Sewer pipe may be used in the construction of a drain, though not mentioned in the petition; but the pur- chase of them must be made at a public sale. The com- missioner cannot privately furnish them 60 . 289. Tax Roll. Where a drain tax is not placed upon the roll in such a way as to identify the drain to which it belongs, by name or otherwise, it is void 61 . An officer is charged with notice of the invalidity of his roll when such invalidity appears 56. Auditor General v. Tuttle, 59. Pollock v. Sowers, 137 146 Mich. 106. Mich. 368. 57. C L. 4343. Angell v. 60. Kenyon v. Board of Ionia Cortright, 111 Mich. 223. Co., 138 Mich. 544. 58. Van Akin v. Dunn, 117 61. C. L. 4355, 4359. Dunn- Mich. 421. ing v. Calkins, 51 Mich. 557. 421 LEVY OF THE TAX upon its face; as where a drain tax, under the law of 1881, was reassessed under the law of 1885, and a levy made therefor. There was no power to levy for a drain tax under the law of 1881 6 * Form for Certificate of Drain Tax Roll. / hereby certify that I, county drain commissioner of county, Michigan, on the day of , 790 . . , at in the said township of , that being the time and place at which a certain drain known and designated as " drain," i\.\is let by me. did then and there, before receiving any bids for the construction of said drain, order and determine that the whole per cent of the taxes to be spread for benefit to lands in the construction of said drain should be spread and collected in this fiscal year, to wit: 190. . , and I hereby certify that the above determination was then and there publicly announced by me for the information of bidders. I also hereby certify that the above and foregoing is the "special assessment roll of drain," for the township of , county of State of Michigan, and that I have entered therein a correct description of all the tracts, parcels and subdivisions of lands benefitted by said drain, as provided by laic .and that I have placed opposite each description the amount of the per cent heretofore determined upon by me, also the amount of the per cent apportioned by me to the said township of at large. Whereas, I county drain commissioner 62. Mogg v. Hall. 83 Mich. 576. ssi. 290 THE LAW OF TAXATION 422 of County, Michigan, did on the day of A. D. 190..., determine and apportion among such of the several town- ships in the said county of as have lands situated therein liable to be assessed for the laying out and establishing of a certain drain known and designated as " drain," the per cent of the entire amount to be leined by reason of such laying out and estab- lishing. And whereas, upon a computation of the whole cost of the drain I have ascertained the entire sum of the cost of laying out and establishing said drain to be dollars. Now, Therefore, I county drain com- missioner as aforesaid, do hereby apportion the said sum of dollars between such tozvns severally upon the said basis and per cent as follows, to wit: Given under my hand this day of A. D. ipo. . . County Drain Commissioner, Of County, Michigan. 290. Sale of Lands. The statute provides that delinquent drain taxes shall follow the course of other taxes, and be collected in the same manner. This authorizes a sale of the land 63 . A sale of land for drain taxes, under the provisions of the general tax law, is valid 64 ; and a deed from the auditor general is prima facie evidence of the regularity of the 63. Bump v. Jepson, 106 Mich. Mich. 647. 641, 644; Rumsey v. Griffin, 138 64. Hilton v. Dumphey, 113 Mich. 413; Blondin v. Griffin, 133 Mich. 241. I'.'.' 5 I KVY OF THE TAX taxes 65 . A sale of land for void drain taxes constitutes a cloud upon title 68 . $291. Drain Funds and Orders. A drain tax cannot be levied upon a portion of the public for the construction of a drain in which the public iiave no interest. Therefore, the board of supervisors, though authorized by statute, cannot order drain taxes spread at large, either upon the township or county, except as ordered by the drain commissioner and in accordance with his assessment 62 * A drain fund is not a township fund, and the township has no interest therein 67 . Contractors holding orders on a certain drain fund, and owners of specific parcels of land who are contesting a drain tax, have no such interests as will support a bill of interpleader by the collector, where he has collected the tax under protest 68 . Where an owner of tax has a drain tax vacated, he cannot there after compel the authorities to provide for payment of orders on that drain 69 . Neither will the court compel the payment of warrants as a special assessment fund where the legality of the contract in question is denied, pending a suit by a tax payer to have such contract declared void 70 . Where the township at large raised a tax based upon illegal 65. Palmer v. Rich, 12 Mich. 68. Wallace v. Sorter, :> Mich. 414. 159; Alger v. Slaght, 64 Mich. 66. Frost v. Leatherman, 55 589. Mich. 53. 69. Brownell v. Gratiot Board, 66a. Butler v. Saginaw Board, 49 Mich. 41 ; Mason v. Gladstone 26 Mich. 22, 29. City, 93 Mich. 232. holding that 67. Barker v. Vernon Twp., 63 such a person cannot compel the Mich. 516, 519; Dawson v. payment of an order on the fund Aurclius Twp., 49 Mich. 479; to which the tax set aside would Cathcart v. Merritt Twp., 38 have gone. Mich. 24&; Anderson v. Hill, 54 70. Detroit, etc., Plank Road Mich. 477; See Liability of Town- Co. v. Highland Park, 142 Mich. ship, 360. 326. 292 THE LAW OF TAXATION 424 drain proceedings, the township board transferred the money so raked back to the contingent fund cf the town- ship, and this atiion was sustained 71 . The acceptance of drain contract by the drain commissioner, rnd the issuing of an order therefor, is not a judicial proceeding; and payment of the order may be refused either for mistake, or the non-completion of the contract, though the order is in the hands of an innocent third party, for value, pur- chased before due 72 . Where a drain, having once been laid out, is deepened, widened and extended, funds raised on the last proceeding cannot be used to pay orders issued on the first 73 . A drain commissioner will. not be held person- ally liable on a drain order issued by him simply because the supervisors illegally refuse to spread the drain tax 74 . 292. Liability for Tax. The drain law of 1881 did not contain any provision making the drain tax a personal charge against the owner of the land, nor was there any power or authority in the collector to seize and sell personal property of the owner to satisfy such tax, as in the case of the collection of gen- eral taxes. Where a tax of 1881 was reassessed under the law of 1885, the statute could not add to it the element of personal lisfbility 75 . A purchaser takes state swamp lands liable to the drain taxes thereon and cannot contest them. 71. Vaughn v. Ellis, Supreme case of shortage, does not apply Court File No. 11038, not re- to proceedings had prior to the ported. passage of the act. 72. Van Akin v. Dunn, 117 74. Nash v. Kenyon, 151 Mich. Mich. 421. 152. 73. Dean v. Clinton Co. Treas- 75. C. L. 4350, 4367. Mogg urer, 146 Mich. 645, holding that v. Hall. 83 Mich. 576, 581. Act 222 of Public Acts of 1903, 76. Cook v. Auditor General, providing for a reassessment in 124 Mich. 430. } .'." LEVY OF THE TAX Ji -.'Ho 293. Liability of Townships. '1'lie township is in no way interested in drain proceed- ings or drain funds, and should not be made a party to a suit respecting them 77 . The township drain commissioners were elected in the townships, but they had their independ- ent duties to perform, in respect to which they were neither under the control of the township nor was the townships, as such, in any manner concerned. The laying out of drains is commonly a matter of mere neighborhood interest ; they affect small bodies of lands; the taxes laid are local assessments, and did not, and could not, under the statute, become a general charge. In the performance of his duties, the commissioner is in no sense the agent of the township, and there is no township responsibility for his miscon- ducts or defaults. Though the local levies were collected by the township treasurer and received into the township treasury, they were not received for the township and did not at any time become a part of the township money. In the treasurer's hands they were a specific fund; collected as such and held by him to be paid out on orders on the drain fund in favor of persons found to have claims upon it. The determination of these claims was made by the drain commissioner, and the township board drew orders on his determination, but exercised in respect to it no in- dependent discretion of their own, and were under no obligation to look beyond the commissioner's report. In drawing these orders the officers were not the agents of the township. For convenience, and to avoid a multiplicity of officers, certain township officers were charged with duties in connection with it ; but this was a mere matter of admin- 77. Barker v. Vernon Twp., 63 Hillyer v. Jonesfield. 114 Mich. Mich. 516. 519; Emerson v. 644. construing 86. Chap. 6. Act Walker Twp., 63 Mich. 483; 203 of Public Acts of 1893. 293 THE LAW OF TAXATION 426 istration and does not change the nature of the proceedings. Therefore, when drain monies are paid under protest and suit is brought, the action should be against the collector and not against the municipality 78 . The county is not liable for rejected county drain taxes under the law of 1889 79 . The township, however, was liable to the county for township drain taxes, under the law of 1889, when they were charged back to the county by the auditor general, and the township had had the benefit of them by settle- ment and disbursement 80 . The township board has no authority to employ an attorney to defend the township collector in suits arising over taxes, without a vote of the electors; and in no event can an attorney be employed in behalf of the township to defend such collector in his acts in collecting drain taxes. A township may defend and indemnify its officers in bona fide attempts to discharge their duty when such duty is one imposed by law, and when the matter is one in which the township has an interest. When the township has no interest, the contract is ultra vires, and no implied contract arises to compensate the con- tractor for work actually done. Although townships may defend their officers in some cases, there is no legal obligation to do so. It is not within the power of the township officers to obligate the town to do so by employ- ing counsel upon behalf of the town, nor can the town- ship board do so. The law permits townships to sue and be sued, and the supervisor may prosecute in the name of the people, or otherwise, for penalties and forfeitures in- 78. Dawson v. Aurelius Twp., 54 Mich. 477, 485. 49 Mich. 479, 480 ; Camp v. 79. Mason v. New Haven Algansee Twp., 50 Mich. 4; Twp., 82 Mich. 435. Taylor v. Avon Twp.. 73 Mich. 80. Mason v. Hazelton Twp., 604; Hilyer v. Jonesfield Twp., 82 Mich. 440. 114 Mich. 644; Anderson v. Hill, -*; LEVY OF THE TAX curred within his township. He is also the agent for the transaction of all legal business, and he is to bring and defend suits for and against the town, and process is to be served upon him. But the statute does not confer upon any officer or board the power to determine when it will protect or indemnify an officer against personal litigation or loss when there is no legal obligation upon the township to do so. These matters must go before the electors of the township 81 . Even though the municipality contracts for the construction of a sewer, where the charter provides that such expenses shall be paid only out of the special assessment fund, it will not be held liable where such fund is not collected 82 . Where a township treasurer sells property for an illegal tax, assumpsit and not mandamus, is the proper remedy to obtain the recovery of so much of the proceeds of the sale as were applied to township taxes. While New York holds that the township would not be liable at all because its treasurer acts as the agent of the state and county as well as the township, such rule does not prevail here under our system. The township is liable for so much money as it thus receives 83 . 294. Liability of Petitioners. The statute provides that the applicants for a drain "shall be jointly and severally liable for all costs and expenses in case the commissioner upon examination, or upon exam- ination and survey, shall determine that the same is un- necessary or impracticable, or in case the proceedings shall be dismissed for other cause 84 ." This statutes makes the 81. Jenney v. Mussey Twp., 83. Byles v. Golden Twp.. 52 1LM Mich. 229, 233. Mich. fil2. 82. Affield v. Detroit. 112 Mich. 84. 3 H. S. 8l740b5. C L. 560. 94319. 294 THE LAW OF TAXATION 428 petitioners liable for the cost of the proceedings at any stage when dismissed, or quashed, for any cause not due to the negligence of the commissioner. This may include the costs and expenses of two set of special commissioners when the first set disagreed 85 . The right of action against the petitioners is purely statutory and the commissioner must bring himself within its terms by showing the exist- ence of facts upon which liability is predicated. The application is the foundation of the whole proceeding in cases of this kind. It is this which confers jurisdiction upon the commissioner and no substantial departure from the improvement prayed for can be made without losing jurisdiction. When the improvement sought to be made by the commissioner is materially different from that prayed for in the petition, the petitioners are not liable for any of the costs of the proceedings, if they fail 86 . The fact that the drain commissioner's proceedings may have been illegal does not release the signers from their liability, if the commis- sioner followed the course set out in the petition. The peti- tioners are the actors in the proceedings and the statute con- tempates that they are the parties in the suit. It is mani- festly unjust that the petitioners should shield themselves be- hind defects in their own petition and assert a want of juris- diction in the commissioner 87 . The evident intent of the legislature was to make the petitioners in these cases liable for the costs if they failed to sustain them in any proceed- ings unless the failure was due to some fault or neglect of the commissioner, in which case they would not be liable 88 . Where proceedings are had under one petition, and abandoned after a survey etc., and a new petition had, 85. Parker v. Lincoln, 114 87. Rosenstiel v. Miller, 96 Mich. 306, 309. Mich. 99. 86. Hall v. Palmer, 54 Mich. 88. Case v. Telling, 112 Mich. 270. 689. I'-'! I LEVY OF THE TAX the signers of the last petition will not be liable for the expenses under the first petition, though the survey made under the first petition as well as other work, was used under the second petition 89 . 294a. Interest. Under the laws of 1881 (H. S. 1713) a returned drain tax drew interest at the rate of seven per cent per annum. The provision of the law of 1885 that taxes assessed under the 1881 drain law should be assessed with all lawful costs, charges and interest, the returned drain tax draws seven per cent interest and not one per cent a month. The pro- vision that drain taxes shall be collected in the same manner as other taxes does not authorize the imposition of the one per cent a month as charged on general taxes 90 . 89. Gable v. Deal, 150 Mich. Co. v. Snyder. 93 Mich. 325, 3*7; 430. Bump v. Jepson, 106 Mich. 641. 90. C. L. 84359. Jackson Tile CHAPTER XVIII. STATUTES AND RECORDS. 295. Record, Completeness. 296. Filing of Records. 297. Construction of Statutes. 298. Saving Clauses and Amendments. 299. Validating Acts. 300. Healing Acts. 301. Constitutionality of Powers. 302. Constitutionality of Laws. 303. Various Drain Laws. 304. Presumptions. 295. Record. Completeness. The record cannot be aided by knowledge which the com- missioner conceals in his own breast ; it must be complete in itself, and all jurisdictional facts must appears on its face 1 . Similarly, the right of way cannot be supplemented by a right of way given over the same line, but based upon a former petition 2 . It is not necessary that the statute should expressly direct what should be matter of record and how the record should be made up. The common law applies and determines that in all such proceedings which are quasi judicial, every substantial ingredient should be set down in 1. Harbaugh v. Martin, 30 Com'r., 40 Mich. 175 ; Dupont v. Mich. 234. It was sought here to Highway Com'r.. 28 Mich. 362. show by a subsequent paper that 2. Sturm v. Kelly, 120 Mich, the signers of a petition were in 685, 689 ; Whisler v. Drain Com'r., fact a majority of those traversed 40 Mich. 591. by the drain. Tireman v. Drain 1 -"-I STATUTES AND RECORDS 296, 297 writing 3 . A subsequent petition for a public improvement cannot be supplemented by a prior petition that has been laid on the table by the council 4 . The statute provides for supply- ing missing records on old drains. How much force such records would have is not determined 5 . 296. Filing of Records. The statute requires that all of the drain records shall be filed with the county clerk before the tax is ordered spread by the board ; and they will not be compelled to order the tax levied until such records are filed 6 . Where, however, the tax is in fact spread without the filing of such records, it will afford no ground for recovering such taxes, or for setting them aside 7 . The record need not be filed with the county clerk before the assessment is made 8 . 297. Construction of Statutes. Words in brackets form no part of the law as approved by the governor; and they have no proper place in the statute 9 . Act 203 of Public Acts of 1893 is amendatory of Act 227 of Public Acts of 1885, and is not a repealing act. It required no saving clause to preserve proceedings already commenced. The Act of 1885, and all its amendments, are to read as one act 10 . Legislative construction of past legis- 3. Milton v. Drain Com'r., 40 31. Mich. 229, 231. In Kroop v. 6. Conley v. St. Clair Board, Forman, 31 Mich. 144, it is held 88 Mich. 245. that the petition must be in writ- 7. Matran v. Tompkins, 99 ing. Whiteford v. Probate Judge, Mich. 528 : Lambach v. O'Meara. 53 Mich. 130; Lane v. Burnap, 39 107 Mich. 29. Mich. 739; Palmer v. Rich. 12 8. Jones v. Gable, 150 Mich. 30. Mich. 414. 9. Robertson v. Baxter, 57 4. Auditor General v. Fisher, Mich. 127, 131. 84 Mich. 128, 131. 10. Dennison v. Allen. 106 5. Freed v. Stuart, 147 Mich. Mich. 295. 298 THE LAW OF TAXATION 432 lation has judicial force for the future only, but may be con- sidered for the light it throws on doubtful language 11 . 298. Saving Clauses and Amendments. In the Act of 1859, the saving clause "saving any engage- ment, contract or undertaking heretofore entered into by the commissioner," did not keep alive any proceedings under the old law in an incipient stage, where no vested rights were concerned 12 . Act 203 of 1893, though containing no saving clause, did not oust the township drain commissioner of jurisdiction. It was really an amendatory act, as it re- enacted all of the old law which it did not directly amend. It cannot be considered as a repealing act 13 . Where differ- ent sections are amended, the entire act must be read as amended ; and the saving clause in the original act so amended, still remaining in the act after its amendment, protects and saves proceedings begun before the amend- ments took effect. Thus, the Act of 1885 had a saving clause; this act was amended by Act No. Ill of Public Acts of 1895, which amendatory act had no saving clause; but the saving clause* of the Act of 1885 applied to the act as it was after amendment in 1895 14 . Act No. 272 of Public Acts of 1899 expressly provides that all proceedings commenced should be carried forward under the law under which they were begun. Therefore, that act was not applicable to proceedings pending when it took effect 15 . Act No. 612 of Local Acts of 1905, referring to Ionia County, amended the drain law with reference to that county alone; 11. Robertson v. Baxter, 57 Mich. 295. Mich. 127. 14. Brady v. Hayward, 114 12. Palmer v. Rich. 12 Mich. Mich. 326, 330. 414. 15. Gitchel v. Whipple, 126 13. Dennison v. Allen, 106 Mich. 646. STATUTES AND RECORDS ~!>'J held, that, as it did not amend the general act in its appli- cation to the other counties of the state, it was not necessary, as to Ionia county, to set out the amended law in full in its reference to this county 16 . 299. Validating Acts. In 1871 the legislature passed an act requiring certain old drain taxes to be reassessed, and if not collected in this manner, to be assessed upon the townships. It was intended as a broad healing act for Saginaw county, many of the drain taxes therein having been set aside by the courts. The legislature could not make valid, retrospectively, what it could not originally have authorized. The doing of a void act by individuals could confer no new power upon the legis- lature. The purpose of the act was to avoid the effect of these decisions, not directly and in terms setting them aside, but by a direction to the board of supervisors, which, in effect, must be of equivalent import. It is well settled that the apportionment of legislative power to one department of the government, will not authorize it to exercise any portion of the judicial power, which is apportioned to another department. The apportionment is of itself an implied pro- hibition upon its exercise by the legislature. That body, consequently, cannot set aside a judgment or decree, nor can it even require the judiciary to give a new hearing in a case once passed upon. The line which separates judicial from legislative authority is clear and distinct, and the principle is so well settled and understood, that it is seldom called in question, and probably not often violated except through inadvertence 17 . 16. Rice v. Probate Judge, 141 Butler v. Saginaw Board, 25 Mich. Mich. 693. 22, 26. 17. Laws of 1871, Vol. 3, p. 92 ; (28) 300, 301 THE LAW OF TAXATION 434 300. Healing Acts. The statute provides that proceedings shall not be declared absolutely void in consequence of any error or informality either of the officer or in the record 18 . This would heal defects which are only irregularities and not jurisdictional 19 . It cures lack of filing the drain records with the county clerk 20 . Under the healing act of 1881 21 , which attempted to give the court original jurisdiction over drains in general, with power to correct all errors and inequalities, the supreme court declined to review drain proceedings on certiorari 22 C. L. 4381, providing that drains shall conclusively be deemed regularly established after ten years, is valid 23 . 301. Constitutionality of Powers. The court cannot put itself in the place of the con- stitutional jury of inquest. Equity jurisprudence does not include the exercise of eminent domain, and .the determin- ation of the necessity of a public improvement or damages occasioned thereby 24 . Neither can the legislature provide for the assessment of an illegal tax 25 . And equity will refuse to review the merits of an assessment for benefits 26 . The legislature cannot convey any rights by causing a new record to be made 27 . It cannot require railroad companies to make 18. 3 H. S. 1740gl; C. L. 24. C. L. 4364. Clark v. 4364. Teller, 50 Mich. 618. 19. Brady v. Hayward, 114 25. See 389. supra. Butler v. Mich. 326, 336; Null v. Zierle, 52 Saginaw Board, 26 Mich. 22; Mich. 540 ; Whiteford Twp. v. Mogg v. Hall, 83 Mich. 576. This Probate Judge, 53 Mich. 130, 134. provision was first incorporated 2K). Matran v. Tompkins, 99 in the drain law of 1875, and since Mich. 528. maintained in various forms to 21. Laws of 1881, p. 367. 40. the present time. (Act No. 229 22. Tucker v. Parker, 50 Mich. of Public Acts of 1875). 5 ; Dietz v. Frazer, 50 Mich. 227. 26. Houseman v. Circuit Judge, 23. Zabel v. Harshman. 68 58 Mich. 367. Mich. 273, 2S1 ; Patterson v. Mead 27. Parker v. People. 22 Mich. Drain Com'r., 148 Mich. 659. 93. \ ''' STATUTES AND RECOH it- drain culverts at their own expense 28 . The provision authorizing the commissioner to add ten per cent to the cost of the drain, for contingent expenses, is constitutional". 302. Constitutionality of Laws. Act 323 of 1881, having for its object the making of internal improvements instead of benefiting the public health, was unconstitutional 30 . The object of Act 227 of the Public Acts of 1885 is sufficiently expressed in its title 31 . This act is not in violation of Art. XIV, 9, of the Con- stitution, relating to the state engaging in the making of internal improvements. This work is one of local improve- ment for the benefit of the public health, and to be paid for by the township and persons to be benefited thereby, and which has always been held proper under our constitution, when the improvement has been undertaken and carried forward under reasonable legal limitations and safeguards 32 . The act is constitutional and effective notwithstanding the unconstitutional provisions as to reviewing assessments and damages by the courts 33 . H. S. 1740, as amended in 1893, empowering commissioners to relay a drain when the first proceedings are set aside, is constitutional 34 . C. L. 4334, requiring railroads to construct culverts over new drains at their own expense is unconstitutional in not providing compensation 35 . Act 592 of Local Acts of 1905, in Livingston County, providing for the election of public 28 Chicago, etc., Ry. v. Chap- Supervisors, 115 Mich. 202. pell. 124 Mich. 72. 32. Gillett v. McLaughlin. fiO 29. Auditor General v. Melze. Mich. 547, 551. 121 Mich. 285. 33. Mathias v. Drain Com'r., .".<>. Anderson v. Hill. 54 Mich. 73 Mich. 5; These unconstitu- 477. tional sections are C. L. 8543f>4-5. 31. Hall v. Slaybaugh, 69 34. Heuser v. Burbank, 117 Mii-h. 4S4; Smith v. Carlow, 114 Mich. 463. Mich. 67; Brady v. Hayward, 114 35. Chicago, etc.. Ry. v. Chap- Mich. 326; Smith v. Board of pell. 124 Mich. 72, 74. 303 THE LAW OF TAXATION officers, and for the appointment of commissioner by the governor, is constitutional 36 . Act 612 of Local Acts of 1905, being an act for locating and establishing drains in the County of Ionia, does not repeal the general drain law as to drains traversing several counties 37 . Act 592 of Local Acts of 1905, providing for the appointment of a drain commissioner for Livingston County is constitutional 38 . 303. Various Drain Laws. Act 612 of Local Acts of 1905, relating to Ionia County, provided : 1st. That no drain should be laid out unless the same should be necessary for the public health; that public con- venience and welfare should not be considered. 2nd. Requires the petition to be signed by the owners of ever one-half of the value of the lands to be drained or benefited, as shown by the last assessment rolls. 3rd. Requires the assessment for benefits to be made before sale, and another petition signed by -parties repre- senting over one half of the benefits assessed, for the con- tinuance of the proceedings. 4th. Limits the commissioner to the precise starting point, route, and terminus as specified in the petition. 5th. Authorizes the board of supervisors to make further conditions, which must be complied with. 6th. Permits the board of supervisors to disallow any item of the expense of the drain. 7th. Suspends pending proceedings until the board of supervisors shall act. 36. Alexander v. McClear, 146 Judge. 149 Mich. 192. Mich. 45. 38. Attorney General v. Mc- ?>7. Whitmore v. Probate Clear, 146 Mich. 45. 437 STATUTES AND RECORDS jj:;ii:; 8th. Provides for action of the drain commissioner under the general law, subject to the foregoing conditions. This act was sustained; the fact that the legislature saw fit to impose hard and exact conditions affords no grounds for setting it aside. All of the conditions are possible of fulfillment. The drain commissioner has no such vested rights to the prior functions of his office that his duty may not at any time be restricted, suspended, or enlarged 39 . Act No. 495 of Local Acts of 1903, referring to Saginaw County, required: 1st. A petition signed by not less than one-third of all the freeholders of lands to be drained or benefited thereby. This act was held inoperative and invalid because of this provision. The persons benefited would not be ascertained until after the assessment was made; and this assessment was subject to change on appeal. Therefore, the commis- sioner would never know when he had the requisite number of signers 40 . Act No. 237 of Public Acts of 1903, relating to the counties of St. Joseph and Saginaw, provided that the boards of supervisors might, from time to time, fix and determine further conditions than those set forth in the act, before any contract should be made or entered into for the construction of a drain ; and further provided that the board might disallow any item of expense. This act was held con- stitutional, being in accordance with the constitution, which provides that the legislature may delegate powers to muni- cipalities and boards of supervisors to enact local legis- lation 41 . 39. Rice v. Probate Judge, 141 41. Constitution of 1850. Art. Mich. 693. IV. 533', Bcecher's Constitution 40. Alberts v. Gibson. 141 of 1903 Art. V1IT, 58. Alberts v. Mich. 698. Gibson, 141 Mich. 698. 304 THE LAW OF TAXATION 438 304. Presumptions. It will be presumed to be necessary that an established drain needs to be cleaned out and kept in order 42 , and that the petitioner asks for legal proceedings 43 ; and that if a paper is not found where, if in existence, it ought to be deposited, that it was never in existence 44 . 42. See Records, 366, supra; 739. Barker v. Vernon Twp., 63 Mich. 44. Hall v. Kellogg, 16 Mich. 516, 518. 135; Platt v. Stewart, 10 Mich. 43. Taylor v. Burnap, 39 Mich. 260. CHAPTER XIX. HIGHWAY AND SURFACE WATERS. 305. Drains in Highways. 5306. Private Drains in Highways. 5307. Private Drains. 5308. Municipal Liability. 5309. Drain Out-lets. 5310. Bridges and Culverts. 5311. Obstructing Highway Drains. 5312. Diversion of Stream. 5313. Riparian Rights in Lakes. 5314. Surface Waters. Lower Proprietor. 5315. Percolating Waters. 305. Drains in Highways. Under and subject to the regulations of the statute, high- way commissioners may provide for such ordinary highway ditches and culverts as the good of the road shall demand ; but they cannot lawfully depart from this object, which is the beginning and end of their authority, and, under color of ditching to improve a road, proceed to cut drains to im- prove the health of the neighborhood and improve the sur- rounding lands and improve their value. The power to' ditch and drain for road purposes is necessarily very limited, and its exertion is only authorized when the sole end of such exertion is the improvement of the road and the consequent benefit to the public; and the power, after being rightfully set in motion, in connection with an authorized object, can- not be lawfully carried beyond such object and into a domain which the law has assigned to another system and authority. 305 THE LAW OF TAXATION 4 t<) In case of mere highway ditches the whole matter is summary and substantially of discretion. No provision is made for allowing damages, the law assuming that the work is exclusively upon public grounds, and that nothing is authorized to be done which could fairly be considreed as a private and individual damage. If the highway commis- sioner exceeds his authority in this respect, he will be personally liable. If, however, in constructing an ordinary ditch such as the good of the road would dictate, it becomes either necessary or expedient to dig a ditch in the highway past the gateway of a private owner, the commissioner, or overseer acting under his direction, may do it, although the private owner may be required to bridge the same. It would be the performance of a public duty and a lawful exercise of authority, and the private injury, if any, would be damnum absque injuria 1 . The highway overseer has 1. C. L. 4336. Highway Com'r. v. Ely, 54 Mich. 173, 177; Conrad v. Smith, 32 Mich. 429; Dean v. Millard, 151 Mich. 582; Parker v. Fields, 48 Mich. 250. Territorial Laws, Vol. 1, p. 453 (1819), provided that the super- visor could dig ditches in the highway. Territorial Laws, Vol. 2, p. 325 (1827), made overseer of highways act as drain commis- sioner in constructing drains on farm lines. This act, with amend- ments, remained in force until 1857. Laws of 1857. p. 431, made it the duty of the highway officers, whenever a drain was laid in the highway, to keep the same free from obstructions. This was repealed in 1861. Laws of 1859. p. 1064, made highway commissioners ex oMcio township drain commissioners, and with amendments, continued in force until 1875. Laws of 1861, p. 453, repealed the prior county drain laws of 1857 and 1859, and pro- vided that "drains may be laid along or upon any public road," placing them under the care of the overseers of highways when constructed. This was repealed in 1869. Laws of 1869, Act No. 70. 14, a county drain act, pro- vides, "drains may be laid along, within the limits of. or across any highway," and required the over- seer of highways to keep the drain clean. Act No. 169 of Laws of 1871, 14, a new county drain law. has the same provision. Laws of 1875, Act No. 140, pro- vides, "Water courses may be established, ditches or drains located along, within the limits of, or across any public highway," and were to be kept clean by the highway officers. Laws of 1881, Act. No. 269, contained similar provisions. Laws of 1885, Act Ill IlKiHWAV AM) Sl'Kl-A(K \\ATKRS much discretion in deciding how and where he will expend highway labor; but it is a discretion limited by the rights of individuals, and when he invades those rights he become^ liable. When he is liable for a lawless act, all of his assistants are liable with him for the consequent injury. Absence of bad faith can never excuse a trespass, though the existence of bad faith may sometimes aggravate it-. It has been the settled policy of the state to permit the use of highways for drainage purposes as appears from the legislation upon the subject from 1819, when Michigan was a territory, to the present time. It is within the power of the legislature to permit this, and not confine such work exclusively to those officers having the highway in charge 3 . The township is not bound to erect railings or barriers along the banks of drain in the highway. The statutory requirement does not apply to artificial drains 4 . 306. Private Drains in Highways. Some jurisdictions hold that a municipality cannot grant a vested right in a private owner to construct a private sewer in a public street; and that such attempted grant is only a license, revocable at pleasure, because the municipality does not own the fee of the streets, and can make no binding grant No. 227, 819, (3 H. S. 1740d3), way under the charge of the over- provides, "drains may be laid seer of highways, along and within the limits of, or 2. Cubit v. O'Dett, 51 Mich, across any public highway; pro- 347. 351. See Chapel v. Smith, vidcd, when it is proposed to con- 80 Mich. 100, where the ais'a- struct a drain in whole or in part to a drain commissioner was he.d along a public highway," a right not liable in trespass on the case, of way shall he obtained as in 3. Kiley v. Bond, 114 Mich, other cases. All of the drain con- 447 ; Conrad v. Smith, 32 Mich, structed in the highway is placed 429. under the care of the overseer of 4. Kiley v. Bond, 114 Mich, highways. Laws of 1897, Act No. 447; Delapp- v. Beckwith. 114 254, C. L. 4336. omits the pro- Mich. 394. vision placing drains in the high- 306 THE LAW OF TAXATION 442 that might later interfere with a public use 5 . Michigan holds the contrary doctrine, that a grant of a right for such a purpose conveys a vested right, which will be protected by injunction. Where the act of the city was in passing an ordinance forbidding the use of such sewer, and an arrest for the violation of such ordinance, injunction alone will lie, the passage of. the ordinance being a governmental act for which an action at law would not lie 6 . As against a third party, the municipality, under proper restrictions, may grant a vested right to a private citizen to construct a private sewer in a public street. The idea that such a right cannot be granted is based upon the theory that the fee of the street is in the private owner and that the laying of a private sewer or drain pipe is an invasion of his right as owner of the land. The fallaciousness of this proposition is apparent when it is considered that the right of the public in the streets of cities, boroughs and towns is far more extensive than the rights to use the surface of the land for the purpose of passage. There is no good reason for holding such a doctrine. The streets and alleys of cities, towns and borroughs are under the con- trol and direction of these municipalities and they have all of the power over them that can lawfully exist. They are the universally recognized channels of communication be- tween the different parts of the municipal territory, and no private interest in or ownership of the subsoil is permitted to interfere with the free use of both the surface and the sub- soil by the municipal authorities or their delegated sub- stitutes. The municipal authorities use them for all public purposes; and if the use permitted to a private individual is of the same kind to which the surface or subsoil of the street may be devoted by the municipality, the private owner can no 5. Eddy v. Granger, 28 L. R. 6. Stevens v. Muskegon, 111 A. 517 (R. L). Mich. 72, 74. 44:{ UK; ii WAY AND SURFACE WATERS 307,308 nio.e object in the one cr.se than in the other 7 . Neither can the municipality destroy 'a gutter which carries off the water from private premises, where the destruction results in pre- cipitating water on .to such premises 8 . 307. Private Drains. A license to dig a drain may be revoked at pleasure 9 . The same rule applies to a ditch dug as a neighborhood drain, as to other watercourses, if dug by common consent ; and where a rail fence is placed across such a drain, and settles and obstructs the drain, the owner is not liable therefor 10 . A right of drainage through the lands of another is such an interest in land that it cannot be conveyed by parol 11 . <308. Municipal Liability. Where a municipality, by its express direction, through its governing body, causes an act to be done which injuri- ously affects a private land owner by causing an unnat flow of water upon his premises, the municipality will be held liable. It is very manifest from a reference to the au- thorities that they recognize in municipal corporations no exemption from responsibility where the injury an individual has sustained is a direct injury accomplished by a corporate act which is in the nature of a trespass upon him. The right of an individual to the occupation and enjoyment of his premises is exclusive, and the public authorities have no more liberty to trespass upon it than has a private individual. If the corporation sends persons with picks and spades to cut 7. Boyden v. Walkey. 113 175. Mich. 609, 612. 10. Freeman v. Weeks. 45 Morley v. Buchanan Village. Mich. 2.V5. 124 Mich. 128. 11. Schnltz v. Hoffman, 127 9. Hopkins v. Briggs, 41 Mich. Mich. 276. 309 THE LAW OF TAXATION 444 a street through private property without first acquiring the right of way, it is liable for a tort; but it is no more liable under such circumstances than when it pours upon such land a flood of water by a public sewer so constructed that the flooding must be a necessary result. The one is no more justifiable and no more an actionable wrong than the other. Each is a trespass, and in each instance the city exceeds its lawful jurisdiction. A municipal charter never gives, and never could give, authority to appropriate the freehold of a citizen without compensation, whether it be done through an actual taking of it for streets or buildings, or by flooding it so as to interfere with the owner's possession. His prop- erty right is appropriated as much in the one case as in the other 12 . A municipality, in providing a system of drainage, must use due caution and care to provide a reasonably efficacious means of carrying off the water that might reasonably be expected to accumulate; and when it has not done so, and premises are flooded, the city will be liable 13 . The fact that the system of drainage or sewer is built accord- ing to a plan does not change the liability 14 . 309. Drain Out-Lets. A drain commissioner cannot lay out a drain, except at his peril, without furnishing a sufficient outlet. The fact that the drain as laid out was determined necessary by special commissioners is no defense to flooding lower owners. Although there may once have been a sufficient outlet, by prescription, for the drain in question, yet if that outlet had 12. Ashley v. Port Huron, 35 small a culvert, and increased the Mich. 296, 301, and cases cited. natural flow of water. Pennoyer v. Saginaw City, 8 13. Seaman v. Marshal, 116 Mich. 534; Rice v. Flint, 67 Mich. Mich. 324. 401; Richards v. Ann Arbor, 152 14. Defer v. Detroit, 67 Mich. Mich. 15, where the city built too 346. 11.". H K;H WAY AND SURFACE WATERS been stopped up for any considerable time, such prescriptive right is lost. Moreover, although the dimensions of the drain may not be increased, yet if the drain brings an in- creased flow of water upon the lower proprietor, more than the prescriptive right permitted, the drain commissioner will be personally liable 15 . When taken in time, the commis- sioner will be restrained from constructing a drain without a proper outlet 16 . A private owner, even with the consent of the drain commissioner, has no right to enter other premises than his own to clean out a drain, except under proceedings had by the statutory petition 17 . Where a drain outlet as originally constructed floods a lower proprietor, but, after suit is commenced, the defendants remedy the defect, an action by injunction will not lie, but the parties will be left to their remedy at law 18 . The commissioner cannot construct a drain that will flood lands below the out- let. In such a case, injunctioa will lie 19 . 310. Bridges and Culverts. If, by the construction of a drain in the highway for road purposes, a bridge or culvert is necessary for the private owner, he may make one at his own expense because he has a right of access to the public street. In so doing, he has no right to wilfully obstruct the ditch or highway, his rights as a private owner being subordinate to the public right of constructing and maintaining such ditch and keeping the highway in repair 20 . A township may have an injunction to 15. Chapel v. Smith. 80 Mich. H>. Surafield v. Smith, 153 100,114. Mich. 270; Keuerstein v. Richter, ifi. Bruggink v. Thomas, 125 15 L. N. 751. Mich. 9. where the principle is recognized 17. Freed v. Stuart, 13 .L. N. hut an injunction denied on the 050. 147 Mich. 31. facts. 1H. Perry v. Reed, "147 Mich. 20. Highway Commissioner v. 146. Ely, 54 Mich. 173, 178. 311, 312 THE LAW OF TAXATION 44'J restrain the deepening and widening of a drain whereby unusual quantities of water will be brought down at once, endangering its culverts and bridges. If such deepening and widening has been completed, an order will issue com- pelling the drain commissioner to dam up the drain so as to make it, or restrict it, to its original capacity. The com- missioner may clean out drains to their original capacity but cannot go further if it does damage. The township can- not recover damages for bridges and culverts destroyed in an action of this kind; the action must be brought by the overseer of highways 21 . 1 311. Obstructing Highway Drains. Under the statute, the highway commissioner may sue an individual for the penalty provided, for wilfully obstruct- ing a ditch in the highway. In such case, the intent of the defendant is proven by the preponderance of the evidence- 2 . The defendant, in such an action, cannot plead that the drain was not legally laid out. The court, however, cannot direct a verdict for more than six cents, it being for the jury to determine whether all, or a part, of the penalty shall be imposed 23 . 312. Diversion of System. A stream may be diverted from its course if returned to its original channel before it leaves the premises of the owner diverting it; but he cannot diminish the flow to the injury of the lower proprietor 24 . The riparian owner has 21. Merritt Twp. v. Harp, 141 23. Hines v. Darling, 99 Mich. Mich. 233. 47. 22. 3. H. S. 1403 ; C. L. 4157. 24. Pettibone v. Smith. 37 Highway Commissioner v. Ely, 54 Mich. ,575 ; Rummell v. Lamb, 100 Mich. 173, 179; Highway Com- Mich. 424: Hilliker v. Coleman, missioner v. Sperling. 120 Mich. "3 Mich. 170. 493. 447 HIGHWAY AND SURFACE WATERS 5j '' 1 ''>. ''> 1 1 the right of drainage into a stream opposite, and the right to the natural flow of the stream 25 . 313. Riparian Rights in Lakes. The owner of a mill pond, or lake supplying his mill, may enjoin the construction of a drain which will lower the level of the lake 26 . Moreover, the right to construct a drain does not extend to the construction of a ditch that will impair the navigability of any navigable river or lake. The drain com- missioner is without jurisdiction in such a case- 7 . A tem- porary injunction will be granted to a holder of land under a contract to restrain threatened flooding 28 . 314. Surface Water. Lower Proprietor. Whatever may be the rights of adjoining proprietors as to the use and diversion of water, there is no right in any one, by raising artificial obstructions, to flood his neighbor's land by stopping the escape of water that cannot otherwise flow off 29 . A sag hole or ravine, having no defined banks or bed. or source of permanent supply of water, is not governed by the rules of natural watercourses. An upper proprietor has no right to collect and discharge his water into such ravine as in a natural watercourse, but must IDC governed by the law relating to the flow and disposition of surface water. The upper owner would have the right, in the interests of good husbandry, in the good faith, improvement and tillage of his farm, to fill up sag holes on his own land so that no water would accumulate or stay therein, even if the water 95. Treat v. Bates, 27 Mich. 419; C. L. 4339. 390. 28. Emery v. Circuit Judge. 26. Stock v. Jefferson Twp., 138 Mich. 542. 114 Mich. 357; Hyatt v. Albro, 29. Boyd v. Conklin. !>4 Mich. 121 Mich. 83S. 5*3. 591. 27. Cole v. Dohv. 137 Mich. 315 THE LAW OF TAXATION 448 arising from rain fall or melting snow should thereby, in natural processes, find its way into the ravine of the lower owner and incidentally increase the flow thereon. But he cannot, by artificial drains, collect the waters of stagnant pools, sag holes, basins, or ponds upon his premises and cast them in a body upon the proprietor below to his injury 30 . It is error to lay down the broad rule that an upper proprietor may, by artificial drains, cast all of his natural drainage, at once, upon the lower proprietor. It may be cast enough more rapidly to cause serious damage to the lower pro- prietor 31 . Where a lower proprietor is in one county and is flooded by the upper proprietor in another county, a bill will lie in the county where the land is flooded, to restrain such upper proprietor 32 . Where the upper proprietor unlawfully casts upon the one below, more water than had been accustomed to flow there, the lower proprietor has a right to dam back such water though in so doing he necessarily obstructs the flow of water that would naturally come upon him 33 . The .upper proprietor may fill up his sag holes, but he cannot collect the water of pools, holes or ponds and cart it in a body upon the lower estate 34 . 315. Percolating Waters. The movements of sub-surface waters are commonly so obscure that rights in or respecting them cannot well be pre- served. They do not often have a well defined channel ; and it is not easy in many cases to determine in what direction 30. Gregory v. Bush, 64 Mich. 196. 37, 42; Page v. Huckins, 150 32. Davis v. Frankenlust Twp., Mich. 103. Leidlein v. Meyer, 95 118 Mich. 494. Mich. 586; Horton v. Sullivan, 97 33. O'Connor v. Hogan, 140 Mich. 282. Mich. 613. 31. Breen v. Hyde, 130 Mich. 34. Lannstein v. Lannstein, 14 1, 5; Osten v. Jerome, 93 Mich. L. N. 773, 150 Mich. 524. H'.t II I HGWAY AND SURFACE WATERS i!5 their movements tend. In some cases a new well at a con- siderable distance from the old one may withdraw the water from the other and destroy it ; while in other cases, in which the same result would seem more likely, there is no percepti- ble influence. It is in view of these difficulties that the rule of law has become established that owners of the soil have no rights in subsurface waters not running in well defined channels, as against their neighbors, who may withdraw them by wells or other excavations 35 . In Pennsylvania, the right to divert sub-surface water is limited to those cases where the destruction of the well or spring could not be reasonably foreseen or avoided by the use of ordinary care 38 . The owner of the soil has the same right to a well defined flow of subterrean water as he has to the surface water on his prem- ises. The difficulty in preserving these rights lies not in the principle, but in the necessary proofs to substantiate them 37 . A stream whose course can only be ascertained by excavating is not so well defined as to certainty as to come within the rule of protection. In the case of a well sunk by a proprietor on his own land, where the water which feeds it does not flow openly thereto, but through the hidden veins of the earth beneath the surface, no proprietor can tell what portion of the water is taken from beneath his own premises and what portion from an adjoining proprietor. In fact, until the well has been dug, there cannot be said to have been any flow at all 38 . 35. Upjohn v. Richland Twp., 36. Collins v. Chartiers Valley 48 Mich. 542, 549 ; Greenleaf v. Gas. Co., 131 Pa. St. 143. and 130 Francis, 18 Pick. 117; Bliss v. Pa. St. Ill; Wheatley v. Batigh, Greeley, 45 N. Y. 671; Roath v. 25 Pa. St. 528; Haldeman v. Driscoll, 20 Conn. 533; Chatfield Bruckert, 45 Pa. St. 514. v. Wilson, 28 Vt. 49; Chase v. 37. Cross v. Kitts. 69 Cal. 27; Silverstone, 62 Me 175; Frazier Shively v. Hume, 10 Or. 76. v. Brown, 12 Ohio St. 294; New 3S. Acton v. Blundell, 12 M. & Albany, etc., Ry. v. Peterson, 14 W. 324; Chasemore v. Richards. Ind. 112; Coleman v. Chadwick, 7 H. L. Cas. 349. But see Bur- SO Pa. St. 81 ; Hanson -v. McCue. roughs v. Saterlee, 67 la. 349. 42 Cal. 303. (29) PART THREE SPECIAL ASSESSMENTS CHAPTER XX. GENERAL POWERS AND PRELIMINARIES. 316. Power to Levy Special Assessments. 317. The Tax Must be for the Purpose Named. 318. The Petition. 319. The Vote. 320. Ordinances. 321. The Determination. Form of Determination. Form of Determination after Hearing Objections. 322. Particulars of Determination. 323. The Jury. 324. Comprehensiveness of Terms. 325. Power to Pave. 326. Power to Make Sewers. 327. Power to Build Sidewalks. 328. Reasonable Time to Build. 329. Power In Re Public Parks and Water Works. 330. Limitations of Tax. 331. Board of Public Works. 332. Board of Estimates. 333. Board of Assessors. Form of Instructions to Assessors. 8334. Determining Amount to be paid by City. 335. Plans and Specifications. 336. Use of Patented Articles. 6337. Estimates. 338. Notice of Proposed Improvement. 339. Notice of Assessment. Form of Notice of Review of Assessments. 340. Notice for Bids. 341. Publication of Notice. 342. Service of Notice and Return. 343. Costs and Expenses. 316. Power to Levy Special Assessments. These assessments are levied under a public law, by a municipal corporation, created for local but public purposes, I'.l GENERAL POWERS AND PRELIMINARIES and the proceeds of the assessment are devoted to a particu- lar public purpose. The common council have power to levy a tax upon the whole city for paving all streets within its boundaries ; and the constitution would sanction the taxation of each ward for all of the expenses of all improvements in it. There is, therefore, no constitutional difficulty in assess- ing a smaller district than the ward for the expense of the improvements within it. The constitution, however, must be conceded to enjoin a just principle of equality in regard to all public burdens, and prescribes as a limit to the taxing power, that common burdens should be sustained by com- mon contributions, and regulated by some fixed, general rule, and apportioned according to some uniform ratio of equality 1 . The distinction between taxation and eminent domain is this : Taxation exacts money or services from in- dividuals, as and for their respective shares of contribution to any public burden. Private property taken for public use by right of eminent domain is taken, not as the owners share of contribution to a public burden, but as so much beyond his share. Special compensation is therefore to be made in the latter case because the government is a debtor for the property so taken; but not m the former, because the pay- ment of taxes is a duty, and creates no obligation to pay otherwise than in the proper application of the tax. Again, taxation operates upon a community, or upon a class of per- sons in a community, and by some rule of apportionment. The exercise of eminent domain operates upon an individual and without reference to the amount or value exacted from any other individual, or class of individuals*. !. Williams v. Detroit, 2 Mich. Mich. 274. 280; People v. Mayor 560, 569. of Brooklyn. 4 Comst. 423; Motz 2. Woodbridge v. Detroit, 8 v. Detroit, 18 Mich. 495, 522. 316 THE LAW OF TAXATION 452 Taxation, as a general thing, can only be justified for a public purpose and as affecting some well defined class or community of the public. It must operate upon a community or a class, and by some reasonable rule or apportionment, by which the amount required to be paid by one person or piece of property shall bear some relation to the amount to be paid by another. The improvement of private property is no part of the object of government, and therefore, if pri- vate property receives, incidentally, a benefit by the public use of that taken, such benefit furnishes no just ground or correct basis for taxation 3 . Article XIV of the constitution, 11, 12 and 13, providing that there shall be a uniform rule of taxation, that property shall be assessed at its cash value, that the legislature shall provide for the equalization of taxes by a state board, refers only to the state, county and municipal taxes for municipal government. Taxes for purely local public improvements are not mentioned in the constitution, nor is it necessary that they should be to give the legislature power over them. The power to impose and collect such taxes, like all other legislative power not men- tioned in the constitution, is plenary, and in the exercise of it is subject to legislative discretion only 4 . Local assess ments for the improvements of the streets are made in the exercise of the power of taxation, and cannot be justified on the grounds of being mere regulations of police; and are consequently subject to the general principles of taxation 6 . Special assessments do not constitute the taking of private property under the power of eminent domain; they are an exercise of the taxing power 6 . In conferring the power to 3. Chaffee's Appeal, 56 Mich. 5. Motz v. Detroit. 18 Mich. 244, 259. 495, 523. 4. Woodbridge v. Detroit, 8 6. Roberts v. Smith, 115 Mich. Mich. 274, 280; People v. Mayor 5, 8. of Brooklyn, 4 Comst. 423. I 53 GENERAL POWERS AND PRELIMINARIES > ''> 1 levy a special assessment, the legislature usually enacts the rule by which the assessments shall be apportioned; but it may leave to the council to prescribe, by law or ordinance, the mode of assessing, levying and collecting such tax 7 . 317. The Tax Must be for the Purpose Named. The council cannot construct a sewer under the guise of grading and graveling a street. When action is taken to lay out, grade and pave a street, the construction of a sewer is not included within those terms. The district benefited by a sewer is generally different from the district benefited by a highway. The inhabitants of a city are entitled to a hearing on each of these improvements, and neither can be included in the other. One may be necessary and the other may not. Such an assessment for a double purpose is void 8 . The necessary drainage for the pavement, however, which may be called a storm sewer, may be built without being men- tioned in the determination to pave 9 . Upon the same prin- ciple, a determination to pave will be deemed to include the necessary grading, leveling, curbing, gutters and cross- walks ; and money used for such purposes will not be deemed a diversion of the tax 10 . Where bonds are issued, in reality for a bonus, but ostensibly to purchase a park, they will be illegal and void in the hands of a party knowing the facts, but will be protected in the hands of an innocent purchaser for value if they contain the proper recitals 11 . The de- termination of the council must, in fact, describe -the pro- 7. Whitney v. Hudson, 69 Saginaw, 87 Mich. 439. Mich. 189, 197. 10. Williams v. Detroit, 2 8. Peck v. Grand Rapids, 125 Mich. 560, 577 ; Cummings v. Mich. 416. Grand Rapids, 46 Mich. 150, 157. 9. Williams v. Detroit, 2 Mich. 11. Schmidt v. Frankfort, 131 560; Gates v. Grand Rapids, 134 Mich. 197; Thompson v. Mecosta Mich. 196 ; Parsons v. Grand Rap- Village, 127 Mich. 522. ids, 141 Mich. 467; Davies v. 317 THE LAW OF TAXATION 454 posed improvement. Upon the plea of improving or repair- ing a street, it cannot build a sewer and levy an assessment therefor upon private property 12 . It is not competent for the council to order the construction of two separate and distinct improvements and provide that the expenses be met by a single assessment to be levied upon abutting owners 13 . The fact, however, that one street may have different names for different portions of it, does not constitute a work embrac- ing the whole street separate and distinct works for each part of the street having a different name. The unity of the work as a whole must determine the right to deal with it, and not the diversity of names that may be given to various parts of it 14 . Several streets, however, may be paved in one general improvement, though the pavement is of different widths, there being separate estimates of the cost of each street. "The improvement is one and the same, but it does not follow that each piece of property fronting on different streets should pay the same amount per foot. It is competent for a city to include more than one street in a local improvement of this kind; and the fact that the streets are of different widths does not affect the right" 15 . The legislature may authorize the raising of a tax for a special improvement; and it will be presumed that it was intended that the funds should be disbursed by the regular ofBcers. Where the act provides that certain special officers shall disburse the money and the title of the act is silent in relation thereto, the act will be held unconstitutional 16 . 12. Clay v. Grand Rapids, 60 included in paving. Mich. 451, 458. 15. Haley v. Alton, 152 111. 13. Arnold v. Cambridge, 106 113; Adams Co. v. Quincy, 130 Mass. 352, cited in 46 Mich. 150, 111. 566; Springfield v. Green, 120 155. 111. 269. 14. Cummings v. Grand Rap- 16. McDonald v. Springwells, ids, 46 Mich. 150, 155; holding 152 Mich. 28. that branches of a street may be 455 GENERAL POWERS AND I'KKLIMINAKIHS >> .'51 s , 318. The Petition. A guardian or an administrator cannot, as a freeholder, representing his estate, sign a petition for a public improve- ment. Where the husband and wife own land jointly, both must sign, as the signature of one alone is of no effect. The fact of whether or not the requisite number of free-holders have signed a petition or not, may be shown by extraneous testimony. It would seem that the holder of a land contract, in possession of the premises, has such an equitable interest in the fee that he would be deemed a freeholder 17 . Where the statute does not expressly require a petition as a basis for starting procedings for a public improvement, a land owner cannot be heard to object that the petition presented was too indefinite 18 . 319. The Vote. Where the charter requires that the aye and nay vote shall be had upon any proposition, it is not sufficient that the record show that all members of the council were present at the opening of the meeting, and that the resolution in ques- tion, when brought before the council, was unanimously carried. The record must distinctly show how each mem- ber voted. There is no presumption that all of the members present at roll call remained until any particular resolution was voted upon, or that every member voted upon the reso- lution. The actual attendance of the members upon any meeting will frequently be found to change from hour to hour, so that a record that a vote was unanimous would be slight evidence that any particular member present at roll 17. See 5250, supra. Auditor IS. Auditor General v. Hoff- General v. Fisher, 84 Mich. 128. man, 132 Mich. 198. 319 THE LAW OF TAXATION 456 call voted for it, or that a member not present at roll call did not vote for it, or that a member present was not excused from voting, or did not abstain from voting. Such a statute is designed to fix upon each member who takes part in the proceedings on such resolutions, the precise share of respon- sibility which he ought to bear, and that by such an un- equivocal record that he shall never be able to deny either his participation or the character of his vote 19 . The fact that an alderman is interested in the proposed improvement, and will be liable to an assessment thereon, does not dis- qualify him from voting upon questions relating to the im- provement. Such action is legislative in character, and the interest of an alderman therein is of the same nature with that which every legislator has in a bill he votes for, which is to subject his property, in common with that of his fel- low citizens, to taxation. While it might not be competent for such an alderman to assist in making the assessment, for all other purposes he would be qualified to act 20 . The de- termination of the necessity of the improvement and the con- firmation of the roll, inasmuch as it is the levy of a tax, re- quires a two-thirds vote of the council. Likewise, a recon- sideration of such a resolution by less than that two-thirds of the members is a nullity 21 . Where the council is com- posed of six trustees and a mayor, each having a vote, a two- thirds vote to levy an assessment requires the vote of five of such members 22 . Where a municipality is required to determine upon the details of a work and then submit the question to the electors, the board may, in good faith, change the grade of a street after such election 23 . Where the char- is. Steckert v. East Saginaw, lage, 69 Mich. 189, 201. 22 Mich. 104, 109. 22. Whitney v. Hudson Vil- 20. Steckert v. East Saginaw, lage, 69 Mich. 189. 22 Mich. 104, 112. 23. Campau v. Grosse Pointe 21. Whitney v. Hudson Vil- Board, 132 Mich. 365. 457 , 1 \1.K.\L POWERS AND FRELIMINAK1 1 .". '''' 1 ter requires estimates of the cost of a work to be prepared by engineers; and, after receiving such estimate, does not adopt or reject it, but submits a lower price to the vote of the people, the vote upon such question will be void 24 . Where the charter provides that the council may rescind an invalid assessment, it may do so by a majority vote, although it requires a two-thirds vote to levy an assessment 35 . A charter may require that all persons voting upon a proposed bond issue, shall be tax-paying electors 20 . ^ 320. Ordinances. The successive steps prescribed by a city ordinance to be taken to levy a special assessment must be followed by the city council 27 . An ordinance is not violated because the clerk nowhere certifies when it was presented to the mayor for his signature. When the statute provides for a board of assessors there is no necessity for an ordinance directing such appointment 28 . Where, however, the statute requires that the resolution determining the necessity of the improve- ment shall be approved in writing by the mayor, such written approval must affirmatively appear 29 . 321. The Determination. The legislature has power to determine whether or not an improvement is a public necessity, and it may delegate this power to the local municipalities ; when these municipalities follow the rules and directions laid down for their guidance by the legislature, their conclusion is final and will not be 24. Richards v. Bellaire Vil- 27. Williams v. Detroit. 2 lage, 153 Mich. 560. Mich. 560. 25. Townsend v. Manistee, 88 28. Boehme v. Monroe City, Mich. 408. lOf, Mich. 401. 26. Menton v. Cook, 147 Mich. 20. Twiss v. Port Huron. 63 540. Mich. 528, 532. 321 THE LAW OF TAXATION 458 reviewed 30 . Where the charter provides for the determina- tion of the necessity of an improvement by the council, it must be formally and expressly made. It will not be in- ferred from the mere ordering of the improvement made, nor from the letting of the contract for the work. It may seem that the legislature has been over particular in requir- ing from the council an express preliminary declaration that they deem the improvement necessary, when the fact that they order it to be made is evidence that such is their opinion. It is evident, however, that if such an inference can be drawn, then this charter provision is idle, and the provision itself mere surplusage. The court has no authority to treat any legislative enactment which is not ambiguous in itself and is capable of reasonable application, as so far unimportant that it is matter of indifference whether it is complied with or not. It must be supposed that the legislature saw suf- ficient reason for its adoption, and intended it to have effect. It is often the case that some portion of a legislative enact- ment prescribing the course of proceedings to be pursued by public officials, can be treated as directory merely, and not mandatory ; so that a failure to strictly comply with some part of its directions will not defeat the whole proceedings. This can never be the case, however, where that which is required to be done is in the nature of a condition precedent to subsequent action, and not simply a step in the course of the proceedings prescribed with a view to a regular, orderly and prompt transaction of the business in the progress of which such step is to be taken 31 . As the charter and ordi- nances, however, declare the mode in which the expenses of making any public improvement within the municipality shall 30. Voigt v. Detroit, 123 Mich. Mich. 39, 44; White v. Saginaw, 547. 67 Mich. 33, 41. 31. Hoyt v. East Saginaw, 19 l.V.i GENERAL POWERS AND PRELIM1NAK1 321 be assessed and collected, and point out the property to be assessed, no formal determination is necessary unless re- quired by such provisions; and when it is not required, a determination will be implied from the making of a con- tract for the improvement 32 . Where the charter requires that the portion of the city deemed benefited by the pro- posed improvement, and the amount to be paid by the city at large, to be entered upon the minutes of the proceedings of the council, such determination is jurisdictional to the levy of the tax. The council cannot, by resolution, change the district, nor delegate their power in this respect to commis- sioners. The order to the commissioners should specify the principle or method of the assessment; and in the absence of any directions, there is no presumption that the assessment was made with any reference to benefits or advantages which are to arise from the improvement 33 . The language of char- ters is sometimes carelessly drawn, and may if interpreted literally, without reference to legal rules, involve extrava- gant powers. All such language should be so construed, if possible, as to bring the powers within the constitutional safeguards, which the legislature cannot violate, and will not be supposed to design violating 34 . The declaration of the necessity of a public work does not necessarily involve the enumeration of the details of such improvement ; but such declaration, although general in character, covers the doing of whatever is deemed or found to be necessary in the course of constructing an improvement of the character designated, as the building of a necessary drainage sewer for a pavement 35 . Where a charter provides that no paving 32. Williams v. Detroit, 2 35. Davies v. Saginaw, 87 Mich. 560, 576. Mich. 439; Baisch v. Grand Rap- 33. Scofield v. Lansing, 17 ids, 84 Mich. 666; but see Peck Mich. 437, 447. v. Grand Rapids, 125 Mich. 416, 34. Gay v. Grand Rapids, 60 and S406. supra, for a restriction Mich. 451, 458. upon the first cases. 321 THE LAW OF TAXATION 460 shall be done within one year after a sewer, water or gas pipe shall have been laid in the street proposed to be paved, and the laying of gas or water pipe is not under the control of the council, the provisions as to these latter pipe will be held inoperative, as being inconsistent with the other pro- visions of the act, and inconsistent with the proper exercise of the general powers that the council possesses for improv- ing the streets 36 . Where the statute requires that the resolu- tion determining the necessity of the work shall be approved in writing by the mayor, the lack of such approval is fatal to the tax 37 . Under the charter of Grand Rapids the neces- sity of an improvement need not be submitted to the elec- tors. The council may let the contract at once, and later provide for a review of the assessment 38 . Where the neces- sity is to be determined by a jury, they may determine the expenses before they do the necessity of the proposed im- provement 39 . A resolution reciting that the city would pro- cure a bill to be introduced in the legislature authorizing the issue of bonds to build a bridge, and directing plans, specifi- cations and estimates to be made, is a sufficient determination under the charter of Saginaw 40 . The determination to make a public improvement is final, and not open to collateral at- tack except for fraud 41 . Form of Determination. Resolved that the counsel deems ( the paving of street from the west side of street to the 36. Goodwillie v. Detroit, 103 Mich. 454. Mich. 283, 239. 40. Kundiger v. Saginaw, 132 37. Twiss v. Port Huron, 63 Mich. 395, 402. Mich. 528, 532. 41. Shimmons v. Saginaw, 104 38. Parsons v. Grand Rapids. Mich. 512 ; Davies v. Saginaw, 87 141 Mich. 467. Mich. 439; see 455, post. 39. Detroit v. Beecher, 75 461 GENERAL POWERS AND PRELIMINARIES east side of street, or if a sewer, that it deems the construction of a setter on street, describing the sewer) to be a necessary public improve- ment; and that notice be given that this counsel intends to make the public improvement as shown by the plans, plat, diagram and specifications now on file, a proposed (paving or sewer; on street, and to the formation of a special assessment district therefor; And Whereas, after listening to the objections of all parties desiring to present the same, in due consideration being had thereon, therefor, Resolved that the plans, plat, diagram and specifications for the (paving of . . . street, or sewer on street) specifying the length of the pavement or seiver so as to lo- cate it particularly) a 4 The jury necessarily determines the necessity of the taking of private property for the use of the proposed improvement and the necessity of the improvement, and under some char- ters, apportion the expenses of opening a street. In such a case, it is immaterial whether they first determine the ex- pense, or the necessity 80 . Under their powers as a jury of inquest, they cannot follow their own caprice as to the value of property to be taken, but will be bound by the testimony 81 . A juror who has been summoned and acted upon a jury in a former proceeding to condemn a parcel of land, but disagreed and were discharged, is not qualified to sit upon a subse- quent panel to condemn the same parcel, and may be chal- lenged for cause. When he denies having formed an opinion, and a party interested was unaware of such former ser- vice, the IOWCF court will be compelled by mandamus to set aside the verdict rendered 82 . 324. Comprehensiveness of Terms. The term "paving" includes the necessary work incident to paving. Upon this principle, a determination to pave in- cludes the necessary grading, leveling, curbing, gutters and cross-walks 53 . The statute is sufficiently complied with where the council orders a street paved "with Nicholson pavement." This will include such incidental work as ex- cavating and setting curb stones 84 . The term "paving" will also include storm-water sewers 88 , but it will not include the building of a sewer proper, for general purposes 86 . 50. Detroit v. Beecher, 75 Grand Rapids, 46 Mich. 150, 157. Mich. 454 ; Powers Appeal, 29 54. Steckert v. Saginaw, 22 Mich. 504, 510; Scotten v. De- Mich. 104. troit, 106 Mich. 564, 569. 55. Davies v. Saginaw, 87 51. Chaffee's Appeal, 56 Mich. Mich. 439; Gates v. Grand Rap- 244. ids, 134 Mich. 96; Parsons v. 52. Hester v. Chambers, 84 Grand Rapids, 141 Mich. 467. Mich. 562. 56. Gay v. Grand Rapids. 60 53. Williams v. Detroit, 2 Mich. 451 ; Peck v. Grand Rapids. Mich. 560, 577; Cummings v. 125 Mich. 416. (30) 325 THE LAW OF TAXATION 466 325. Power to Pave. The power to pave and levy the expenses upon property benefited, -having been once exercised by the municipality, does not become functus ofKcio. This power is not limited to keeping a pavement in repair, but in regard to paving, grading, or otherwise improving its streets, is a continuing power. While this power may be abused, still, if restraints or limitations are placed upon it, resort must be had to the legislature and not to the courts 57 . The occupation of a highway by a plank road company, which collects toll for travel thereon, does not deprive a municipality of power to pave such a street. The municipality is only divested of such rights as conflict with those granted to the company. Such a company has the right to use the street in the construction of its road, and to the exclusive possession of the street only so far as it is necessary to the enjoyment of the company. It is not necessary that a company occupy the whole street; and the municipality may pave up to the part occupied 58 . A proposed paving may be made to include the part occupied by a sidewalk, in effect abolishing the sidewalk, not by any direct resolution, but by ordering the pavement made within the limits of the walk. A street includes the whole width of public highway; and while it is customary in a city to set aside a. portion of it for foot passengers, there is no rule of law absolutely requiring this, and in many instances it might be useless. The entire matter is within the control of the council 59 . A municipality may repave a street at the 57. Williams v. Detroit, 2 law, provides for improving roads Mich. 560, 581 ; In re Furman in townships. This law has not Street, 17 Wend. 667; Sheley v. yet been before the court. Detroit, 45 Mich. 431, 433. Act 58. Bagg v. Detroit, 5 Mich. 231 of Public Acts of 1903, amend- 336,345. . ed by Act 47 of Public Acts of 59. Brevoort v. Detroit, 24 1907, known as the "Good Roads" Mich. 322, 325. 467 GENERAL POWERS AND PRELIMINARIES \ 926 expense of the property owners as often as necessity re- quires. All street improvements are ordered in view of existing needs, which vary from time to time. Where a cheap improvement might answer now, a costly improve- ment might be demanded in the future; and as all improve- ments add to the value of the abutting lands, there is no inequity in taxing such lands 60 . The power exists to repave a street once improved; and the question of necessity must be determined by the body in whom the power is vested. This determination is not open to review or collateral attack except in cases of fraud. In such work, the material taken from one street may be used on other streets 61 . Where the municipality is required to determine upon the details of the contract for paving, and then submit the question to the elec- tors, the town board and highway commissioner, may, in good faith, change the grade of the highway after the elec- tion 62 . Where a street needs repaving in a municipality hav- ing a charter provision that the owner of property shall not be chargeable with the cost of a repaving occasioned by a change of grade of the street, nevertheless the council may change the grade of the street when it repaves and assess the cost to the property owners when the change of grade is only incidental to, and not the cause of, the repaving 63 . Where, however, the charter provides that the property own- ers shall pay the cost of paving in the first instance, but that he shall not be chargeable with the cost of a repaving, any repaving cannot be charged to the property owner 64 . When the charter provides that the cost of repaving shall be paid by the city, changing the width of location of a new paving 60. Sheley v. Detroit. 45 Mich. Board, 132 Mich. 365. 431, 434; Wilkins v. Detroit, 46 63. Auditor General v. Chase, Mich. 120, 122. 132 Mich. 630. 61. Shimmons v. Saginaw, 104 64. Wreford v. Detroit. 132 Mich. 512. Mich. 348. 62. Campau v. Grosse Pointe 326, 327 THE LAW OF TAXATION 468 will be deemed a repavement, as where the city tore up an old pavement and left a park in the middle of the street, paving on each side of such park 65 . 326. Power to Make Sewers. A city or village has the right to use its streets for the purpose of constructing sewers without obtaining any release of right of way from the abutting owners. The dedication of land to the purpose of a city or village street must be understood as made and accepted with the expectation that it may be required for other public purposes than those of passage and travel merely, and that under the direction and control of the public authorities, it is subject to be appro- priated to all of the uses to which city or village streets are usually devoted, as the wants of the people may render neces- sary or convenient. One of the uses is the construction of sewers, which are usually laid under the public streets; and the custom to lay them there must be assumed to be had in view when a way is dedicated ; and the act of dedication is a waiver of any claim to compensation the owners might otherwise have made, had a sewer been laid across their premises 66 . 327. Power to Build Sidewalks. A provision of a city charter that all repairs of sidewalks shall be paid by the city, does not compel the city to build a new walk when one is needed. Such a provision only has reference to such ordinary repairs, which, without changing the character of the walk, or amounting to a substitution of one for another, are needed to keep an existing walk in a ser- es. Dickinson v. Detroit, 111 30 Mich. 24, 28 ; the street in ques- Mich. 480. tion being one by user. 66. Warren v. Grand Haven, 409 GENERAL POWERS AND PRELIMINARIK- ? i 32 viceable and safe condition. That term does not include con- struction or reconstruction 67 . It is no unlawful interfer- ence with the rights of a property owner to prescribe the kind of walk he shall build. He has no interest in the street except that common to the general public. He may own the fee subject to the public easement, and when the street is vacated, the entire title reverts to him ; but until then, the city has the exclusive control 88 . 328. Reasonable Time to Build. The municipality must give the citizen a reasonable time in which to build his walk. The legislature cannot impose a duty upon a citizen, give an insufficient time to perform it, and then authorize some one else to perform that duty for him, and impose a tax upon him for the cost. The duty to construct a sidewalk is purely statutory. A provision that a walk be built within ten days is unreasonable and void 89 . Either an ordinance or a statute requiring all owners of lots to maintain good and sufficient sidewalks under penalty of a fine or imprisonment, is void. No legislative body has the power to impose a duty on a citizen which it is impossible for him to perform and then make its non-performance a crime 7 B 70 329. Power In Re Public Parks and Water Works. These conveniences are local, being the private property of the municipality, in which the state has no concern. The legislature has no authority to compel the citizens of the state to submit to taxation by way of special assessments in f>7. Walker v. Detroit, 143 60. Auditor General v. Hoff- Mich. 427. man. 129 Mich. 541. 68. In re Obrien, 119 Mich. 70. Port Huron v. Jenkinson, MO; Schrihner v. Grand Rapids, 77 Mich. 414, 419. 119 Mich. 188. 330 THE LAW OF TAXATION 470 matters which apply to such necessities or conveniences adopted only to local conditions. Therefore, the legislature cannot authorize a water board to lay water pipe and assess the cost thereof against the adjoining property 71 . The legis- lature cannot delegate to a commission not appointed by the municipality for that purpose, the power to purchase lands for a park, and compel the municipality to pay for it. As to such property, the state cannot interfere with it any further than it could with a private owner, further than to restrict the action of the municipality, since it is the local property of such municipality 72 . The legislature cannot confer upon a body of local officers previously appointed, the power to act in these local matters, since such action in fact gives the municipality no voice in the matter, and is equivalent to an appointment by the state itself 73 . The statute cannot author- ize the cost of street sprinkling to be assessed upon property owners 74 . A village may not borrow money to construct and maintain water works. It has no authority to borrow money for maintenance 76 . 330. Limitations of Tax. The statute, 1 H. S. 2646, C. L. limits the amount to be levied upon any property at 25 % of its assessed value; and H. S. 2699 limits the amount to be. raised in any one year at 5% of such valuation. If the total levy does not 71. Cass Farm Co. v. Detroit, troit Council, 28 Mich. 228, 242; 124 Mich. 426, 429, construing Lo- Cass Farm Co. v. Detroit, 124 cal Act No. 477, of Public Acts Mich. 426; Bailey v. Mayor of of 1897; Bailey v. Mayor of New New York, 3 Hill 531. York, 3 Hill 531 ; Blades v. Water 74. Stevens v. Port Huron, 149 Co., 122 Mich. 366 ; Jones v. Com- Mich. 536 ; Kalamazoo v. Craw- missioners, 34 Mich. 273. ford, 15 L. N. 669, . . . Mich. 72. Bd. of Park Com'rs>. De- 75. Richardi v. Bellaire Vil- troit Council, 28 Mich. 228, 242. lage, 153 Mich. 560., 73. Bd. of Park Com'rs v. De- -K 1 GENERAL POWERS AND PRELIM I NAK I $:','', I exceed such 25%, and is not spread over more than five years, the levy is valid 76 . Under C. L. Chap. 87, a village has no authority to extend an assessment over a number of years. Any excess of cost of an improvement over the maximum limit provided by statute to be assessed upon the private owners must be paid by the municipality 77 . Under Act 39 of Public Acts of 1899 providing that special assess- ments may be divided into five equal annual installment^ but that if one part is not paid, it shall all become due and no extension be granted, will not authorize a village to raise in one year more than 5% upon the valuation provided by C. L. 2856. The property will be discharged from all liens over the 5% 78 . 331. Board of Public Works. A provision of a city charter giving the board of public works power to determine the kind and quantity of material to be used, does not give it power to determine the general character of the work. It is the duty of the council to avail itself of whatever information the board possesses, but the authority for expenditures originates with the council; and that authority includes the right to determine the question of cost, dimensions, and general character of the work 70 . The purpose of the statute in creating a board of public works is to place public improvements under the oversight of a responsible board, not independent of the council, but auxil- iary to it. There is nothing inconsistent with local legisla- tion in having either boards or other executive service do, 76. Boehme v. Monroe City, 161. 106 Mich. 401, 406. 78. Corliss v. Village of High- 77. Corliss v. Highland Park, land Park, 146 Mich. 597. 132 Mich. 152, 159; Corliss v. 79. Common Council v. Board Highland Park. 132 Mich. 152, of Public Works, 87 Mich. in. 332 THE LAW OF TAXATION 472 under proper conditions what is in no sense legislative work. As a rule, their action is not final but merely designed to enable the council to act understandingly 80 . When the board directed its clerk to advertise for bids, but did not fix the time, they will be held to have adopted the time fixed by the clerk when they receive proposals under the advertise- ment 81 . When a contract is authorized to be let by the council, the board of public works can make no substantial deviation therefrom. It has no power to allow for extras without the consent of the council. This would be in effect making a new contract which had not been ratified by the council 82 . Although the board of public works may be re- quired to execute the contract, yet if its approval is required by the council, it may refuse to do so after the board has accepted the lowest bid 83 . The boafd has no power to modify a contract and increase the cost of the work, or to allow extras, without the consent of the council. See 363, post. 332. Board of Estimates. Litigation over the powers of this board have arisen mainly under the charter of the City of Detroit. It is not necessary that this board approve of the issuing of bonds to pay for an improvement 84 . Where, however, it has struck out a charge for a sidewalk assessment clerk employed by the board of assessors, the controller will not be obliged to pay the same 85 , and it is competent for it to disallow items 80. Butler v. Detroit, 43 Mich. 362, post. 552, 555. 83. Grant v. Detroit, 91 Mich. 81. Duffy v. Saginaw. 106 274. Mich. 335. 84. Commissioners v. Rush. 84 82. Campau v. Detroit, 106 Mich. 154. Mich. 414, 419 ; Chittenden v. Lan- 85. Detroit v. Blades, 133 Mich, sing, 120 Mich. 539; see Contract. 249. 473 GENERAL POWERS AND PRELIMINARIES in the annual budget, approved by the council 86 . The council have no authority to submit a vote for a loan to construct water works without having first adopted an estimate of the cost 87 . Neither can the council erect electric light works without having estimates from the board before the con- tract is let 88 . ;;333. Board of Assessors. The municipality has the power to delegate the assessment of these taxes. The statute does not require that the appor- tionment of the tax among individuals or between lots with reference to benefits, is to be performed by the council. Such an apportionment requires for its proper performance an examination of the several premises in detail ; and as it in- volves merely administrative functions, it is not necessary that the entire council participate in the work, which would often be impracticable. It is the natural and customary pro- ceeding to designate one or more assessors for that pur- pose 89 . When a board is appointed and they proceed to act, they are at least officers de facto; and in an attack upon the tax, the court will not determine whether or not they were officers de jure 00 . Action by the majority of the as- sessors is valid, if all members of the board had proper notice of their meeting 91 . Form of Instructions to Assessors. Resolved that the Board of Assessors of the city of be and hereby are ordered to prepare a special 86. Robinson v. Detroit, 107 89. Warren v. Grand Haven, Mich. 168. 30 Mich. 24, 29. 87. Richardi v. Bellaire Vil- 90. Boehme v. Monroe City, lage, 153 Mich. 560. 106 Mich. 401, 406. 88. Bay Qty Traction, etc., Co. 91. Cummings v. Grand v. Bay City, 15 L. N. 1039 Rapids, 46 Mich. 150, 160. Mich. 333 THE LAW OF TAXATION 474 assessment roll for the payment of .... per cent of cost of paving street or seivering , street, which per cent is to be paid by the lots, lands and premises abutting upon such improvements, which said role sliatt levy the sum of dollars, being .... per cent of the cost of said improvement upon all lots, land and premises abutting upon said improvements, including there- in all intersections of street, alleys and public parks and pub- lic grounds benefited thereby, according to the map, plans, and diagrams thereof now on file with the clerk of this counsel. a to decide what proportion of the cost of the proposed im- provement shall be assessed to any given description, there must then be given an opportunity to the owner of the land to be heard upon that question 12 . The charter of fourth 7. Goodwillie v. Detroit, 103 Rapids, 46 Mich. 150, 158. Mich. 283, 286; Cummings v. 10. Baisch v. Grand Rapids, Grand Rapids, 46 Mich. 157; 84 Mich. 666. Butler v. Detroit, 43 Mich. 552; 11. Richardi v. Bellaire Vil- Mills v. Detroit, 95 Mich. 422. lage, 153 Mich. 560. 8. Wilkins v. Detroit, 46 12. Voigt v. Detroit, 123 Mich. 120, 124. Mich. 447. 9. Cummings v. Grand 339 THE LAW OF TAXATION 480 class cities requires notice to be given by publication, for two weeks, of the hearing of objections to a proposed im- provement. Such requirement is not complied with unless fourteen days intervene between the time of the first pub- lication and the hearing 13 . Where an ordinance requires ser- vice of notice of a proposed improvement to be made either personally, or by leaving the notice at the land owner's resi- dence, the service will not be good where the notice is left at the office of a land owner during his absence therefrom. When the notice is required to be published for five consecu- tive days, a publication, omitting the fourth day (Sunday), will not be good where the paper was published on that day 14 . The notice must give the approximate location of the improvement, and of the property to be assessed there- for 15 . See Form, 321. 339. Notice of the Assessment. Notice to the owners or occupants of lands to be assessed must be given, whether the statute requires it or not. The statute may delegate to the common council the mode of making the assessment, and the method of giving notice to the persons interested. Personal service of a notice is not required, and in fact, is often an impossibility. The ordi- nance may provide for substituted service by publication; and such notice will be valid 16 . Persons whose property is taxed for a special improvement are entitled to be heard at some stage of the proceedings before the tax becomes an established lien against their property 17 . An assessment for 13. Auditor General v. Cal- Muskegon, 152 Mich. 59. kins, 136 Mich. 1. 16. Williams v. Detroit, 2 14. Mills v. Detroit, 95 Mich. Mich. 560, 580. 422. 17. Thomas v. Gain, 35 Mich. 15. Thayer Lumber Co. v. 155. 4*1 GENERAL POWERS AND PRELIMINARIES a public improvement will be void where the statute fails to provide for notice to the owners of property proposed to be assessed 18 . A requirement that the city engineer should give notice of the completion of the assessment, contemplates notice by publication; and the owners need not be named in such notice unless it is so required by statute 18 . Where the notice fixes upon Sunday as a day of review, and is not corrected, the mistake is fatal to the tax in the absence of an estoppel, such as paying part of the tax 20 . When the land owner appears at the hearing, such an appearance is a waiver of any irregularities in the service of the notice 21 . Two weeks notice, by publication, is a reasonable time to give the tax payer to file his objections to an assessment 22 . A tax- payer is not entitled to be heard to complain of the proceed- ings in the probate court to condemn a right of way for a street, when the assessment is not made by the jury- 3 . Where the first assessment is set aside and a new one made, a land owner cannot complain because he did not receive notice of the first one 24 . Form of Notice of Review of Assessors. Rcsok'cd, that the counsel of the city of TV.-/// meet in the counsel chamber of said city on the day of , at 7 o'clock P. M., together until the Board of Special Assessors of said city, to hear objections TO special assessments reported to this counsel for special street No ; and all persons interested 18. Sligh v. Grand Rapids, 22. Auditor General v. Hoff- 84 Mich. 497. man, 132 Mich. 198. 19. Palmer v. Port Huron, 23. Scotten v. Detroit, 106 139 Mich. 471. . Mich. 564; Borgman v. Detroit, 20. Louden v. East Saginaw, 102 Mich. 261. 41 Mich. 18. .24. Townsend v. Manistee, 21. Gregory v. Ann Arbor, 88 Mich. 408. 127 Mich. 454. (31) 340, 341 THE LAW OF TAXATION 482 therein are notified to be present and make their objections, if any, known; and this counsel will then revieiv the said special assessment roll which is on file in the office of the clerk of said city and open for inspection. It is further ordered that the city clerk cause notices to be published for two weeks prior thereto in the , a newspaper printed and of general circulation in said city and county. Clerk. (The above resolutions should be passed by the counsel and then may be printed as a notice in this form.) 340. Notice for Bids. Where the statute requires the board of public works to advertise for bids, a notice signed by the president is suf- ficient, if it purports to emanate from the board 26 . Where the board directed its clerk to advertise for bids, but did not fix the time for opening them, the time fixed by the clerk will be deemed adopted by the board when it opens the pro- posals at that time 26 . Where the charter requires the notice to contain the specifications of the work, it should furnish the bidders a full knowledge of the work without requiring a personal visit to any office for the details 27 . The specifica- tions included in the notice may form the entire contract 28 . 341. Publication of Notice. A provision that notice shall be given without specifying details, contemplates a notice by publication 29 . Either the 25. Beniteau v. Detroit, 41 Mich. 120, 125. Mich. 116, 119. 28. Whitney v. Hudson Vil- 26. Duffy v. Saginaw, 106 lage, 69 Mich. 189, 204. Mich. 335. 29. Palmer v. Port Huron, 27. Wilkins v. Detroit, 46 139 Mich. 471. GENERAL POWERS AND PRELIMINARIES statute or the ordinance may provide for substituted service. Personal service is not an essential, and is often an impos- sibility 30 . Where the statute requires notice to be given for two weeks, by publication, such a provision requires that fourteen days intervene between the time of the first pub- lication and the day of hearing specified in the notice 31 . Two weeks notice, by publication, is a reasonable time for the tax payer to file his objections to an assessment 82 . Where the council permits the lowest bidder to withdraw his bid, the work should be readvertised 33 . Where a notice is required to be published for five consecutive days, a publication which omits the fourth day, Sunday, will not be good when the paper was published on that day 34 . Where the only notice given to a non-resident property owner is a publication of the supposed names of the owner, without describing the property, a mistake in the name of an owner, or the omission of his name altogether, is fatal to the tax 35 . Where the plans are changed after letting one contract, there should be a new publication 38 . 342. Service of Notice and Return. Where a tax payer appears before the reviewing board, his appearance is a waiver of any irregularity in the service 37 . Under the healing act in the charter of Saginaw, the failure to file proof of the service of notice of the review of an 30. Williams v. Detroit, 3 Mich. 528, 532. Mich. 560, 580. 34. MMlls v. .Detroit, 95 31. Auditor General v. Cal- Mich. 422. kins, 136 Mich. 1; the same 35. Hill v. Wanell, 87 Mich, rule will be found, as to the 135. intervening time, in Gantz v. 36. W. F. Stewart Co. v. Toles, 40 Mich. 725; Bacon v. Flint, 147 Mich. 637; Auditor Kennedy, 56 Mich. 329. General v. Stoddard, 147 Mich. 32. Auditor General v. Hoff- 329. man, 132 Mich. 198. 37. Gregory v. Ann Arbor, 33. Twiss v. Port Huron, 63 127 Mich. 454. 343 THE LAW OF TAXATION 484 assessment by the council, will not invalidate the roll when such notice was in fact given 38 . Leaving a notice at the office of a tax payer, in his absence, will not be good ser- vice where the ordinance requires that it be left at his resi- dence if he cannot be found 39 . A return that service was made upon the different named parties as provided by ordi- nance, and reciting the ordinance, is a good return 40 . 343. Costs and Expenses. The cost of advertising, superintendance, etc., is properly included in the sum to be raised 41 . So also is the cost of storm sewers 42 . The warrant may provide for the collection of the treasurer's fees in addition to the amount to be paid into the special fund 43 . It is in the power of the council of Detroit to provide that the penalties of the general tax law shall apply to the collection of a special assessment for street opening purposes 44 . 38. Shimmons v. Saginaw, Mich. 116, 118. 104 Mich. 512, 520. 42. Purpose of Tax, 406, 39. Mills v. Detroit, 95 Mich. supra. 422. 43. Warren v. Grand Haven, 40. Grand Rapids Furniture 30 Mich. 24. Co. v. Grand Rapids, 92 Mich. 44. Powers v. Detroit, 139 564, 572. Mich. 30. 41. Beniteau v. Detroit, 41 CHAPTER XXI. THE ASSESSMENT. 8344. The Assessment District. 345. Exemptions. Church Property. 3 16. Exemptions. Public Property. 5347. Contracts to Exempt. 348. Roll. Residents and Non-residents. 349. Roll. Valuation. 350. Roll. Amount to be Raised Each Year. 351. Roll. Miscellaneous. 352. Assessment by Frontage. 8353. Assessment According to Benefits. 8354. Assessment According to Area. 8355. Hearing or Review. 8356. The Certificate on the Roll. Form of Certificate of Board of Assessors. 8357. Confirmation of Roll. Form of Resolution Approving Roll. 8358. Vacating Assessments. 8359. Re-assessment. 344. The Assessment District. The primary purpose of a sewer is to carry off offen- sive material which, if not removed, would be a cause of discomfort and disease. In the construction of sewers, con- siderations of convenience to the inhabitants of the particu- lar locality are involved quite as much as those of health; and it would be competent for the proper authorities to order a sewer opened without taking into account all, or any, of the improvement to the natural surface or protec- tion of health. Whether or not it would be wiser or more just that the burden should be borne by the city at large rather than by a particular district, must be determined by 344 THE LAW OF TAXATION 486 the proper legislative authority, which has an undoubted rigkt to designate a special taxing district 1 . Every valid assessment must be based upon the legally ordained basis of apportionment, and not arbitrarily. The charge, whether based on supposed benefits or any other legal basis, must be spread over the taxing district according to some uniformly applied rule, and in such a way as to show a compliance with the rule. There may be a necessity of leaving con- siderable discretion to the authorities who determine a tax- ing district, if it differs from the ordinary municipal sub- divisions; but it cannot be such an uncontrolled discretion as to leave no public character whatever to the district, and make a purely private charge under pretense of setting off an assessing district. The only theory on which the doc- trine of charging the expense of public works on property benefited can be maintained is that if local improvements can be conveniently paid for by local assessments, in the long run the general public may be charged with the gen- eral result with approximate equality. In other words, each locality will be paying for such improvements so that finally it will amount to the general public paying for all of the im- provements 2 . Local taxation need not be limited, or co- extensive with, any previously established district. The legislature may determine upon all questions of policy or fact in determining an assessment district; and it must be left to its own methods in making this determination. It may refer the whole matter to the local authorities, under such directions as it may deem best to -impose. As the legis- lature could have defined the district without notice to the property owners, so the local councils, standing in the place 1. Warren v. Grand Haven, 503, 509; Clay v. Grand Rapids, 30 Mich. 84, 29. 60 Mich. 451. 2. Detroit v. Daley, 68 Mich. 487 THE ASSESSMENT ? '' \ 1 of the legislature, may likewise determine the assessing dis- trict without notice to the local owners 3 . The council must definitely fix and determine the assessing district. This is required for the benefit and protection of the owner and others having interests in the lands, and to enable the assess- ing officers to lay the burden upon the district designated, in the proper proportions. The assessment becomes a lien upon the land; and the parties in interest have a right to know the amount and extent of the lien created 4 . The dis- trict must be defined before the assessment is made. When this is not done, there is no way of determining whether or not the assessors are interested and so disqualified. In a street opening case, unless the district is defined, the jury have no sufficient basis upon which to determine what bene- fits shall be deducted from the award of damages 5 . When the council determines the limits of the district, which the charter requires to be done by the board of public works, their certificate on the roll, in effect adopting the district, is sufficient 9 . A description of a paving district as being all of the lots and parcels of land fronting upon a certain street, between certain points, is sufficient 7 . When the council in- structs the city engineer to make a plat of the assessing dis- trict, and then adopts the plat, it is a sufficient designation under the statute 8 . It is competent to provide that any sur- plus in the special improvement fund shall be returned to the tax payer in the same proportion that he was assessed ; and an action will lie at the instance of the tax payer there- 3. Voigt v. Detroit, 123 7. Beniteau v. Detroit, 41 Mich. 447. Mich. 116. 4. Whitney v. Hudson Vil- 8. Auditor General v. Cal- lage, 69 Mich. 189, 200. kins, 136 Mich. 1, 5; Walker v. 5. Powers Appeal, 29 Mich. Detroit, 136 Mich. 6; Da vies v. 504, 511. Saginaw, 87 Mich. 439; Boehme 6. Shimmons v. Saginaw, 104 v. Monroe City, 106 Mich. 401. Mich. 512. 345 THE LAW OF TAXATION 488 for 9 . A member of the council who resides within the dis- trict is not disqualified from voting on a resolution estab- lishing the district 10 . When a street is being improved, it is not necessary that a lot assessed for benefits actually front upon the street. In other words, when the assessment is to be made according to benefits, the assessing district may in- clude property which does not touch the street 11 . Includ- ing a strip of land 300 feet wide on each side of a street, within the district, is not an abuse of discretion in a street opening case 12 . The paving of several streets may be in- cluded within one district, even though the pavement be of different widths, if the estimates and specifications show the cost on each street 13 . Where property benefited by a pro- posed improvement is omitted from the district, it will not avoid the special assessment. To entitle a tax payer to any relief, he should tender the amount that ought to have been assessed against him 14 . 345. Exemptions. Church Property. The purpose of general taxation, where the tax is appor- tioned according to the true value of the property, there is no practical difficulty in making an assessment. The buildings, or portions exempt, may easily be separated from the non-exempt property. When the assessment is not according to value, the practical difficulties to be encountered may be considered in construing an act of the legislature. The motives for exempting houses of religious worship from 9. Thayer v. Grand Rapids, Mich. 30. 82 Mich. 398. 13. Haley v. Alton, 152 111. 10. Corliss v. Highland Park, 113; Springfield v. Green, 120 13fr Mich. 152. 111. 269; Adams County v. 11. Parsons v. Grand Rapids, Quincy, 130 111. 566. 141 Mich. 467; Goodrich v. De- 14. Boussneur v. Detroit, troit, 123 Mich. 559. 153 Mich. 585. 12. Powers v. Detroit, 139 4.VJ THE ASSESSMENT 346 general taxation is obvious and commendable. They are regarded as having a claim upon public benevolence; and while the constitution provides that "no money shall be appropriated or drawn from the treasury for the benefit of any religious sect or society, theological or religious sem- inary, nor shall property belonging to the state be appro- priated for any such purposes," an equally wise policy dictates that some consideration should be had for the public benefit which they bestow. But the extent and man- ner of the encouragement to be conferred upon religious associations, by exempting their property from taxation or otherwise, is confided by the organic law, subject to certain restrictions, to the wisdom of the legislature. In the absence of an express provision, property exempt under the general tax laws will not be held exempt from a special assessment. The convenience of the proprietors of a church, and its sup- porters, are as much promoted as that of other citizens, by a street improvement, although the church property may not be rendered rnore productive by it. In fact, the actual pro- ductiveness of property is not regarded as a criterion of its value in the assessment of any species of taxes. It there- fore follows that church property is not exempt from special assessments 16 . 346. Exemptions. Public Property. The sound principle is that property owned by a state, or by the United States, or by a municipality, for public uses is not subject to be taxed unless so provided by positive legis- lation. Only such burdens of taxation can be imposed upon a political subdivision of the state as is expressly provided by law ; an implied exemption exists for such property as is 16. Lcfevre v. Mayor, etc., etc., of New York, 11 John R. 2 Mich. 587, 592; In re Mayor, 77. 347 THE LAW OF TAXATION 490 held for governmental purposes. Other property is also exempt from taxation, such as churches, hospitals, cemeteries etc., but as to these there is no implied exemption; they are strictly the property of private corporations. When such property is mentioned in the general tax law, the exemption applies only to the taxes mentioned in the general law, and not to those which are of a private and local character, which are made according to benefits derived. Whenever the tax- ing power seeks to impose a tax upon public property, the legislative or constitutional authority must affirmatively appear 17 . 347. Exemption. Private Property. The municipality, for a valid consideration, may contract to exempt property from a special assessment in the com struction of a public work; as, to exempt certain property from exemption of a tax for building a sewer, in consider- ation of a release of right of way for the sewer. Another tax-payer could not well show that he was injured by this arrangement. While the city might not enter into a con- tract to exempt the property for all time, it cannot, as to the construction of the work, receive the right of way under such a contract, and then assess the property. While a contract, or a portion of it, may be ultra vires, yet if it contain nothing malum prohibition, or malum in se, the legal, divisible portion at least will be enforced; the recipient of substantial benefits of a partially executed contract will not be lieved from the obligation to perform or pay that part which he 17. C. L. 3830; Big Rapids West Middle Dist, 45 Conn, v. Supervisors, 99 Mich. 351; 462; Polk Co. Bank v. Iowa, Worcester Co. v. Worcester, 69 la. 29. 116 Mass. 193; Hartford v. 491 THE ASSESSMENT 348,349 can perform because the performance of a small portion of it may be beyond his powers 18 . 348. Roll. Residents and Non-Residents. Where there is no difference in the notice at any stage of the proceedings that is to be given residents or non-residents, a requirement of an ordinance that the roll shall designate who are residents and who are non-residents, will be deemed directory merely. Under such circumstances, no right or interest whatever can be injuriously affected by an omission of the roll to make such statements 19 . Where, however, only the names of the owners of property are required to be published, and not a description of the premises, a mistake in the name, or omission of the name of a non-resident owner, is misleading and fatal to the tax. Then such a requirement is mandatory 30 . 349. Roll. Valuation. The Constitutional provision of 12, Art. XIV, that prop- erty shall be assessed at its cash value, does not apply to special assessments 21 . A provision that the special assess- ment roll shall contain the valuation of the property assessed is mandatory. The taxpayer has an interest in such a provision being complied with. The commissioners may not be precluded from making their assessment with some reference to the valuation ; and as the common council review their action, and hear and decide complaints of inequality 18. Sec 57, supra, for a 19. Williams v. Detroit, 2 further discussion. Coit v. Mich. 560, 581. Grand Rapids, 115 Mich. 493, 20. Hill v. Wanell, 87 Mich. 495. The general principle that 135. a municipality cannot bargain 21. Woodbridge v. Detroit, 8 away its legislative powers is Mich. 274; Motz v. Detroit, 18 also found in Miller v. Kalam- Mich. 495. azoo, 140 Mich. 494. 350 THE LAW OF TAXATION 4:92 and injustice, the respective valuations of lots constitute important information to be possessed by them when pro- ceeding to perform this duty. All legislative provisions, in such cases, should be regarded as mandatory where they seem to be adopted for the protection of the tax paper, and may have an important influence in shielding him from un- equal and unjust taxation 22 . It is necessary that the pro- ceedings show the value of the property, and that it appear that the amounts assessed are not more than the value of the improvement, and upon what basis the assessors arrived at their determination 23 . Where the statute provides that a special assessment shall not exceed five per cent of the valuation of the property as assessed, in any one year, all in excess of that sum must be charged to the municipality, which will be obliged to pay it 24 . Where parcels of land as described on the last assessment roll extend beyond the district, so that one parcel is partly within and partly with- out the district, it is proper for the roll to show the pro- portionate value of the part within the district to the whole parcel 25 . An entire lot or parcel may be wholly within two assessing districts ; but the total tax on both districts can- not exceed the limit imposed by statute, based upon the assessed valuation of the property 26 . 350. Roll. Amounts to be Raised Each Year. The statute relating to cities of the fourth class contem- plates that an assessment may be divided into not more than five installments, one of which shall come due every year; 22. Steckert v. East Saginaw, liss v. Highland Park/132 Mich. 22 'Mich. 104, 115; Beidler Mfg. 152. Co. v. Muskegon, 63 Mich. 44. 25. Boehme v. Monroe City, 23. White v. Saginaw, 67 106 Mich. 401, 407. Mich. 33, 41; Detroit v. Daly, 26. Nowlen v. Benton Har- 68 Mich. 503, 510. bor, 134 Mich. 401, 405. 24. C. L. 2856, 2835; Cor- 493 THE ASSESSMENT 351 and that special assessment rolls shall be made for each year as the same shall fall due 27 . The statute relating to in- corporated villages confers no authority to extend an assess- ment over a number of years. Any surplus in the expense above the amount authorized to be levied must be paid by the municipality 38 . The warrant may provide for collection fees 29 . In street opening cases, under the charter of Detroit, the entire amount levied for benefits must be spread the first year 30 . 351. Roll. Miscellaneous. The assessment roll must conform to the requirements of the ordinance or charter. But, nevertheless, if jurisdiction was acquired by the council, no individual can complain of an error that does not injuriously affect him. An omission of any sign for dollars over the column representing the assess- ment is not necessarily fatal 31 . Where, by a clerical error which is apparent, figures are placed in a column under the wrong heading, it will not invalidate the holl 32 . Neither will a mistake whereby one parcel is twice assessed, and an- other parcel left off the roll entirely, avoid the tax of the owner of that piece when the owner of the omitted parcel pays one of the assessments, since the real owner is not injured thereby 33 . The roll must show expressly that the assessment is made on the basis which the charter provides. An omission to show the principle of the assessment is not cured by a charter provision that the roll, after endorse- 27. Boehme v. Monroe City, Mich. 30. 106 Mich. 401, 406. 31. Williams v. Detroit, 2 28. Corliss v. Highland Mich. 560, 579. Park, 132 Mich. 152, 159; con 32. Beecher v. Detroit, 92 struing C. L. Chap. 87. Mich. 268. 274. 29. Warren v. Grand Haven, 33. Gregory v. Ann Arbor, 30 Mich. 24. 127 Mich. 454, 459. 30. Powers v. Detroit, 139 f 352 THE LAW OF TAXATION 494 ment, shall be prima facie evidence of the regularity of the tax. It must also appear some where of record that the benefits to the whole property included within the taxing districts will equal the cost of the proposed improvement assessed against this district. Any excess of costs over benefits must be borne by the city 34 . It is not necessary that the roll show the width of the street intersections, when their width appears from the record of the proceedings 35 . A tax roll, unsigned by the assessors, is void, and is not cured by being confirmed by the council 36 . 1 352. Assessment by Frontage. The provisions of the constitution requiring assessments to be made according to a uniform rule at the cash value of the property, and for equalization, does not apply to special assessments. The method of the levy of such a tax is in the discretion of the legislature. As this description of tax does not come within the constitutional limitations referred to, and the power of the legislature is plenary, valuation in the property taxed is not a necessary element in the appor- tionment of the tax. The apportionment may be based on valuation or not. This is for the legislature to determine, which alone has power to prescribe the rule of apportion- ment. As there is nothing in the power of taxation requir- ing it to be apportioned in any particular way, the rule by which the amount of tax is to be paid by each tax payer cannot be made a test of the taxing power. There is there- fore no legal reason why an assessment according to front- age is not valid. The abutting owner may either be required to pave the street opposite his premises, or his frontage may 34. Adams v. Bay City, 78 Mich. 6. Mich. 211, 214. 36. Thompson v. Detroit, 114 35. Walker v. Detroit, 136 Mich. 502. 495 THE ASSESSMENT > ''>'>'' be used to determine the percentage of the whole cost of the improvement which he shall pay 37 . It is not competent, however, for the municipality to require the entire cost of paving, grading, etc., opposite each lot, to be paid by the lot owner. This cost may vary greatly in different localities, and therefore cannot be said to conform to any uniform rule. 38 . Because a rairoad company own a right of way in the street, it does not follow that the company should be assessed as owning a frontage of the street 39 . 353. Assessment According to Benefits. It is competent for the legislature to authorize municipal corporations to assess the whole or any portion of the expense of these local improvements upon the property deemed to be particularly benefited thereby, in proportion to the benefit received, if, in the judgment of the legislature, that rule of apportionment is most just and equitable. There is nothing in the constitution which expressly forbids it, and nothing in the nature of the powers of taxation which is inconsistent with it 40 . Where the legislature has pre- scribed the rule by which apportionments shall be made, the council cannot lay down, or direct what rule the assessors 37. Constitution of 1850, Art. a maximum sum per foot front- XIV, 55511, 12, 13; Beecher's age. Lipps v. Philadelphia, 38 Constitution of 1908, Art. X, Pa. St. 503; Philadelphia v. 5553, 7, 8; Woodbridge v. De- Tryon, 35 Pa. St. 401. In troit, 8 Mich. 274; Motz v. De- Clapp v. Hartford, 35 Conn. 66, troit, 18 Mich. 495; Williams v. an assessment by frontage is Detroit, 2 Mich. 560; Sheley v. held unreasonable and void. Detroit, 45 Mich. 431; Kalama- 38. Motz v. Detroit, 18 Mich, zoo v. Francoise, 115 Mich. 554; 495, 256; Sheley v. Detroit, 45 Ca*> Farm Co. v. Detroit, 124 Mich. 431, 433. Mich. 426. The power to assess 39. Boehme v. Monroe City, benefits according to the front- 106 Mich. 401, 406. age of the property upon the 40. Hoyt v. East Saginaw, 19 improvement is generally, but Mich. 39, 43; Warren v. Grand not uniformly, recognized. Haven, 30 Mich. 24. 31; Beech- Some states limit this right to er v. Detroit, 92 Mich. 268. 353 THE LAW OF TAXATION 496 shall follow further than the prescribed rule. If the statute prescribes a rule according to benefits, the council cannot vary that rule in any particular 41 . In an early case, the court intimated that a tax laid apparently without regard to the value or use of the property, strictly in proportion to the frontage on the street, raised a strong inference that it could not have been spread according to benefits, as directed by the ordinance 42 . However, the right to assess lands for local improvements does not depend upon the use to which the owner may choose to put the lands, nor upon whether he may see fit to put them to any use. The benefits are to be determined by the assessing officers, and, in the absence of fraud, their determination is conclusive 43 . Neither the legis- lature nor the council have any power to impose a tax upon property in excess of the benefits which it is supposed to receive from the improvement. The sole ground for impos- ing a part or all of the cost of a public improvement upon one part of the municipality is that the part burdened with the cost receives corresponding benefits, which the general public does not receive. Any provision determining arbitrarily, without reference to benefits received, what percentage of the cost the private owners shall pay, is unconstitutional and the proceedings had there under void 44 . Where, however, the council orders a certain sum spread upon property benefited, the inference is that the property is benefited to the amount specified; and a statute is not unconstitutional which does not limit the amount to be assessed to the benefits derived because such limitations will 41. Steckert v. East Saginaw, Furniture Co. v. Grand Rapids, 22 Mich. 104, 114. 92 Mich. 564; Hoyt v. East 42. Warren v. Grand Haven, Saginaw, 19 Mich. 39. 30 Mich. 24, 31. 44. Detroit v. Chaffee, 112 43. Powers v. Grand Rapids, Mich. 588, construing Local Act 98 Mich. 393; Grand Rapids No. 467, of Public Acts of 1895. 407 THE ASSESSMENT be inferred 45 . The statute will not be unconstitutional be- cause it does not fix any standard for determining how much shall be paid by the land owner, and how much by the municipality. A provision that the tax shall be assessed according to benefits, necessarily limits the amount to be assessed ; and the determination by the council of the amount of benefits to the property is final and conclusive 46 . It is not necessary that the assessing board determine the value of a lot before and after the improvement is made. This would be liable to lead to confusion where the council determined the total benefits to be assessed, and the assessors determined the amount to be assessed to each parcel. This would necessitate two valuations by two boards, who might not agree 47 . It is competent for the legislature to provide for the opening of private roads or alleys; but it is doubtful if it has the power to provide for assessing benefits therefor upon parties who do not petition for the road 48 . It is com- petent to assess an entire lot in two different assessment districts if the total tax does not exceed the limitation fixed by statute 49 . The apportionment of the tax upon the parcels benefited need not necessarily be made by the council. Such an apportionment requires for its proper performance an examination of the several premises in detail ; as it involves only administrative functions, this function may be delegated to the board of assessors 60 . The action of the assessing board in making the apportionment of benefits will not be 45. Goodrich v. Detroit, 123 Co. v. Grand Rapids, 92 Mich. Mich. 159. 564, 570. 46. Voigt v. Detroit, 123 48. Schehr v. Detroit, 45 Mich. 547; in Brewster v. Mich. 626. Springfield, 97 Mass. 152, an 49. Nowlen v. Benton Har- assessment based upon values bor, 134 Mich. 401, 405. exclusive of the improvements 50. Warren v. Grand Haven, was sustained. 30 Mich. 24, 29. 47. Grand Rapids Furniture (82) 354 THE LAW OF TAXATION 498 reviewed by the courts except for fraud, or mistake amount- ing to fraud. The certificates of assessment will be deemed conclusive 51 . When, however, it conclusively appears that the property could not have been assessed according to benefits, as prescribed, the court will set aside the tax; as where property at a distance from a sewer was assessed at the same rate as lots fronting on the sewer 52 . An assess- ment for benefits received made by the council is valid, although the councilmen are all tax payers of the city in which the district is situated, and to that extent interested 53 . 354. Assessment According to Area. The idea that underlies statutes fixing a method of appor- tioning taxes, often by frontage, is that the benefits to the abutting lots is generally in proportion to their respective fronts, and that as a rule, this principle of apportionment is more just than any other. There is a basis of truth in this idea, and it is so generally accepted that assessments for street improvements are now more generally apportioned by frontage than by any other standard. An assessment, how- ever, levied without regard to actual or probable benefits is unlawful, as constituting an attempt to take private property for public uses. While the legislature may prescribe the rule for the apportionment of benefits, its power in this regard is not unlimited. The rule must at least be one which it is legally possible may be just and equal as between the parties assessed. A provision requiring the assessment to be according to the superficial area of premises, where the only discretion left in the local officers is that of determining 51. Shimmons v. Saginaw, 639. 104 Mich. 512; Davies v. Sagin- 52. Auditor General v. aw, 87 Mich. 439; Powers v. O'Neal, 143 Mich. 343. Detroit, 139 Mich. 30; Walker 53. Brown v. Saginaw, 107 v. Detroit, 138 Mich. 538 and Mich. 643. 4!>'J THE ASSESSMENT 355 the boundaries of the district, cannot legally be just or equitable. If, however, the certificate of the assessing officers shows that such an assessment is in fact according to the benefits received, the assessment will be sustained 54 . j-355. Hearing or Review. Persons whose property is to be taken under summary tax proceedings are entitled as a right to be heard at some stage in the proceedings before the tax shall become an established charge against them or their property. Notice, or at least the means of knowledge, is an essential element of every just proceeding which affects the rights of persons or prop- erty 65 . The validity of the special assessment does not depend upon the fact as to whether or not the members of the council have viewed the property assessed, or the assess- ment district, with reference to that particular action. Alder- men are presumed to have a general knowledge of the geography and typography of their own city, and to know the location and condition of the streets. They are supposed to act upon this general knowledge, and upon information furnished by committees and agencies whose duty it is to col- lect data and arrange details 58 . The hearing need not be before the assessment is made; it is sufficient that at some stage a hearing is had, either before the assessors or some authorized board of review 57 . Where the statute requires a council to review the roll and hear objections, two weeks 54. Thomas v. Gain, 35 Mich. Louis v. Peters, 36 Mo. 456; 155, 162; Levee taxes were Walker v. Detroit. 138 Mich, sustained when assessed accord- 639. ing to the superficial area, in 55. Thomas v. Gain, 35 Mich. Daily v. Swop, 47 Miss. 367; 155, 164. McGehee v. Malthis, 21 Ark. 40; 56. Davies v. Saginaw, 87 Wallace v. Shelton, 14 La. Ann. "Mich. 439. 498. Sewer taxes so appor- 57. Beecher v. Detroit. 93 tinned were sustained in St. Mich. 268. 274. 356 THE LAW OF TAXATION 500 publication of such notice is a reasonable time and notice. It is competent for the legislature to leave the time and place of hearing objections to be fixed by the council 58 . A hear- ing before a committee, whose report is adopted by the council, is sufficient 59 . 356. The Certificate on the Roll. The certificate should show that the assessment made upon the lots was made according to the benefits they were ex- pected to receive. It is insufficient to state that the tax levied pursuant to a resolution or ordinance, although that may have correctly stated the proper way to levy the assess- ment. Such a certificate is not equivalent to a distinct state- ment that the tax is levied upon the basis established by the ordinance. The roll is the basis of authority under which titles may be divested, and it cannot be permitted that a jurisdictional document of this nature should speak in doubt- ful terms. It has been usual to provide by statute that the assessor's certificate should show, by express recitals, that the statute has been complied with ; and these provisions are mandatory. The reasons requiring the assessor's certificate to show the manner in which they have performed their duty are much more imperative in the case of special and excep- tional taxes than they are in other cases, because the general taxes are always apportioned according to, or with refer- ence to, market values, which afford standards having some element of certainty. The difference of opinion regarding the proper basis on which local assessments should be levied, and the difficulty in determining from the result in any par- ticular case, that the legal standard has been adopted, are 58. Auditor General v. Hoff- 59. Brown v. Saginaw, 10T man, 132 Mich. 198. Mich. 643. 501 THE ASSESSMENT 356 likely to tempt assessors to make thess assessments after their own notions of what ought to be the rule, unless they are required to state distinctly under their official oath, the grounds of their action in charging a particular person or lot a specified sum, and thus showing affirmatively that the law has been complied with 60 . The proceedings must show the basis upon which the assessment is made, and that the property is assesed no more than the value of the improve- ments 81 . Where the board of public works is required to certify on the roll that each parcel "is benefited specially by such improvement to the amount of the assessment thereon," a certificate showing that the assessment is made according to benefits is a compliance therewith 62 . A recital that the assessment is made according to benefits, is con- clusive, in the absence of fraud 63 . But the assessment will be reviewed by the court when it conclusively appears that it was not made as it recites ; as where a rear tier of lots are assessed at the same ratio as other lots fronting on a sewer 84 . When the assessors are required to enter the valuation of the property on the roll, as shown by the last general assess- ment roll, some of the parcels on such last roll may include more land than lies within the assessment district. In such a case, the certificate should show that the valuation placed upon the portion within the district was proportionate to the value of the whole parcel so fixed in such last roll 85 . A certificate signed by the president and secretary of the board of assessors is sufficiently attested 88 . A certificate not signed 60. Warren v. Grand Haven, Mich. 659; Walker v. Detroit, 3& Mich. 24, 31; Grand Rapids 138 Mich. 639; Walker v. De- v. Blakely, 40 Mich. 367. troit, 138 Mich. 538. 61. White T. Saginaw, 67 64. Auditor General v. Mich. 33, 41; Detroit v. Daly, O'Neal, 143 Mich. 343. 68 Mich. 503, 510. 65. Boehme v. Monroe City, 62. Nelson v. Saginaw, 106 106 Mich. 401, 407. Mich. 659. 66. Duffy v. Saginaw, 106 63. Nelson v. Saginaw, 106 Mich. 335, 339. 356 THE LAW OF TAXATION 502 by the assessors, however, renders the tax void, although such roll was confirmed by the council 67 . Form of Certificate of Board of Assessors. We, the undersigned, constituting the Board of Assessors of . . . . , city, Michigan, hereby certify and re- port that in pursuance of the instructions of the counsel of said city on the day of , hereby certify and report that we have examined the premises in- cluded in special assessment district, of the city of , and, as instructed by common counsel thereof, have made a special assessment roll hereto attached, entering and describing therein, all premises, lots and par- cels of land in said assessment district, the valuation thereof as assessed for state and county taxation on the ward rolls of said city for the year of and did assess to each lot or parcel of land such relative portion of said, dollars, directed to be levied by us, as the benefit of each particular tract or parcel of land for the entire benefits in said district. (If the assessment is ordered according to frontage, use the following, and did assess to each lot or parcel of land such relative portion of dollars directed to be levied by us as the length of front of such premises abutting upon the improvement bore to the -whole frontage of all the lots to be assessed by us.) We find in no lots which, on account of their shape or size, would equitably call for a different assessment. That we have on said rolls set our own appraised value of tracts not on the, ward rolls of said city at all, which we have appraised amd what, in our best judgment, we believed to be severally their true cash value and not their value at a forced sale (give the 67. Thompson v. Detroit, 114 Mich. 502. THE ASSESSMENT numbers and descriptions so placed on the roll.) We have placed on our own appraised values of tracts and parcels of land not on said ward rolls as assessed in the foregoing special assessment rolls, but included with and assessed to- gether with other lands and tracts, not in said paving district and not benefited by the proposed improvement; the ap- praised valuation of such portions of said descriptions as were within special assessment district were arrived at by us in the following manner; that part of the tract or parcel of land within the paving district was appraised of such propor- tion of the sum so assessed on ward rolls as we judged the value of the part within said district compared to the value of the whole part assessed on said ward rolls. The several amounts assessed against each description, the amounts to be paid by the owners of each tract or parcel of land, and the amount to be paid out of the general fund of the city where the tax herein assessed and exceeds twenty-five per cent of the said valuation, all appear under their appropriate columns. We have apportioned the cost of the intersections of streets and alleys to the said city. Dated, this day of Board of Assessors. Form of Resolutions Approving Roll. Whereas, this counsel has considered all the objections made to the special assessments levied upon special district No of the city; and have made all necessary corrections in its judgment that ought to be made; there- for, resolve that the same shall be, and hereby is confirmed in all respects. 357,358 THE LAW OF TAXATION 504 It is further ordered that a copy of the said roll be pre- pared by the clerk of this city and be delivered to the city collector, the same to be collected sixty days from this date; and tha>t the city clerk shall endorse upon the original assess- ment roll his certificate shotting the date of the confirmation thereof by this counsel; said clerk shall attach his warrant to a certified copy of said special assessment roll therein com- manding the city treasurer to collect from each of the per- sons assessed on said rolls the amount of money assessed to and set opposite his name therein; and in case any persons name on said roll shall neglect or refuse to pay his assess- ment on demand, then to levy to collect the same by distress and sale of the goods and chattels of such persons and re- turn said roll and warrant with his doings thereof, within sixty days from the date of the said warrant. 357. Confirmation of Roll. The council, acting as a board of review, cannot confirm a special assessment until it is certified to them by the asses- sors 68 . The a'doption of a roll by the counsel, as reported to it by the city engineer, is a sufficient confirmation 69 . 358. Vacating Assessments. Where a municipality lets a contract for a grossly ex- travagant price and permits fictitious items of expense to be included in the assessment, it will operate as a fraud upon the property owners, and equity will set the assessment aside 70 . In general, however, the court does not interfere with the action of the authorized agents of the municipality 68. Thompson v. Detroit, 114 70. See Collateral attack, Mich. 502. J438, supra. Dixon v. Detroit, 69. Auditor General v. Hoff- 86 Mich. 516; In re Livingston, man, 132 Mich. 198. 121 N. Y. 94. ",or, THE ASSESSMENT ^ -'5.V.' when acting within the power granted by the legislature except when there is a want of jurisdiction in the proceed- ings. The fact that the work and material is not such as is called for by the contract will be no defence to the con- tract 71 . 359. Reassessment. When the original assessment is void, a new assessment may be made if authorized by statute. If the difficulty is that the sums assessed did not constitute a just and equitable charge for public purposes upon the property upon which it was sought to be imposed, the legislature could not make it such a charge. If, however, the defect consists in some irregularity of proceeding, or in some oversight in the law itself, in consequence of which a just and equitable claim fails to be legally imposed, the legislature may retrospectively supply the oversight or cure the irregularity. Thus, where no apportionment was provided in the act under which the cost of an improvement is sought to be assessed, the legisla- ture may provide for a new assessment 72 . But where a part of the taxes were paid under the first assessment, the munici- pality cannot thereafter decrease its share and add to the share of those who have not paid 73 . If a contract for paving is valid, but the assessment invalid, the municipality is bound by the terms of its contract as first made. Although the power to reassess may be granted by a special act of the legislature, such act cannot cut down the amount of the original contract 74 . When a special assessment is set aside and a new one ordered, a land owner cannot complain of 71. Dixon v. Detroit, 86 73. White v. Saginaw, 67 Mich. 516; Motz v. Detroit, 18 Mich. 33. Mich. 515. 74. Whitely v. Lansing, 17 72. Brevoort v. Detroit, 24 Mich. 131. Mich. 322, 326. 359 THE LAW OF TAXATION 506 lack of notice of the first assessment. Where there is statu- tory authority for rescinding an invalid assessment, the coun- cil may do so by a majority vote, although it requires a two- thirds vote to levy the assessment 76 . Where an assessment is excessive, a new roll should be made; and if there is no provision for meeting the part so dropped off as excessive, the municipality must pay such sum 76 . If the assessment is void because of a defective certificate of apportionment of the amount to be raised by the lot owners and the city, the council may correct the certificate and order a new assess- ment, though the statute only provided for a new assess- ment in case the first was set aside by the court. The evi- dent intent of the legislature was that the assessment should not fail because the council had not followed the statute 77 . If the description in the first assessment is too indefinite to be valid, the tax cannot be reassessed upon the corrected description, since no jurisdiction was acquired in the first instance 78 . Where the specifications of a sewer are changed, and a contract for the changed specifications not readvertised for bidders, the assessment therefor is invalid; the legisla- ture may, however, provide a means for determining the benefits received in such a case 79 . 75. Townsend v. Manistee, Mich. 572, 575. 88 Mich. 408. 78. Auditor General v. 76. Corliss v. Highland Park, Smith, 125 Mich. 576. 132 Mich. 152, 160. 79. W. F. Stewart Co. v. 77. Smith v. Detroit, 180 Flint, 147 Mich. 697. CHAPTER XXII. THE CONTRACT. LIABILITY, ETC. 5360. Bids. {361. Irregularities in Accepting Bids. 5362. The Contract. 363. The Contract. Extras. 5364. Authority of Engineer. 5365. Non-performance of Contract. 5366. Stipulated Damages. 5367. Materials in Street. 5368. Primary Liability for The Work. 5369. Bonds. Form of Resolution Authorizing Bonds. (See appendix A.) 5370. The Record. 5371. Presumptions. 5372. Qualifications of Electors. 5373. Delegated Authority. 5374. Ratified Acts. 5375. Healing Acts. 5376. Estoppel. 360. Bids. The statutory provision requiring contracts to be let to the lowest bidder was intended to prevent any action what- ever whereby contractors could make private arrangements with a council for payment of the work to be done. There- fore, the council would be violating the intent of that pro- vision should it afterwards on a failure of the contractor to complete his work according to his contract, undertake to pay a quantum meruit for the part of the work performed 1 . Where a charter or a statute requires that a contract shall be let to the lowest bidder, it does not prevent a municipality from requiring and using an article in which there is no com- 1. Detroit v. Mich. Paving Co., 36 Mich. 335, 338. 360 THE LAW OF TAXATION 508 petition, as something protected by a patent. The benefit to be anticipated from the public letting of contracts must vary greatly according to the extent of competition that is pos- sible or can be excited. The nature of the work may reduce competition because of the scarcity of materials, or because the materials are owned by a few, or because the work is so expensive that but few have the means to undertake it. The security of the city against combinations and" extrava- gant contracts in such cases must rest in the power which the council possesses, to reject any bids which they deem un- reasonable. The legislature considers this power of value else it would have otherwise made the lowest bid conclusive, and the execution of a contract in compliance with it com- pulsory. The statute has fixed a rule by which much benefit will be derived in many cases and some benefit in all cases ; and contracts are valid which comply with that rule 2 . Bids may be made upon a patented article or process when, in fact, there can be no competition. Bids are of two kinds, viz., to construct a work with different kinds of materials, and to construct it of the same kind of materials. The first kind of bidding has in fact little of competition since it can- not be said which is the lowest bid, and in principle, is very similar to bidding upon patented articles where there is no competition 3 . When the contract is required to be let to the lowest bidder, there is no authority to provide for contin- gencies, such as rock or quick sand, and to provide allow- ances therefor upon estimates of the board of public works The contract must be let for a gross sum, and will be void if not so done. Although the specifications are so drawn, yet the contractor will be presumed to know the power of 2. Hobart v. Detroit, 17 cil, 120 Mich. 226, 236, and cases Mich. 246, 254; Motz v. Detroit, cited; Attorney General v. De- 18 Mich. 495, 514. troit, 26 Mich. 263. 3. Holmes v. Detroit Coun- CONTRACT, LI ARI LIT V, ETC. 360 the board and the council, and to know the law, and that such a contract could not be enforced 4 . In street paving, the council may advertise for bids for different kinds of paving. They need not specify the particular kind that will ultimately be used 5 . It may advertise for bids with the privi- lege of extending the work at the price of the accepted bid. It is not necessary to advertise for second proposals in such a case, should the municipality desire to extend the improve- ment after the first section is completed". The council has the right, after bids have been received, to reject all bids, or to refuse to go on with the proposed work. When the coun- cil is required to approve a contract, it may do .so after the board of public works have made it 7 . It is not necessary that the bids distinguish between the portions chargeable to the city, and the portions chargeable to the lot owners. The apportionment of the bid is a mere matter of arithmetic 8 . In the absence of a statutory provision, a contract need not be let to the lowest bidder 9 . Where the clerk advertises for bids on a certain date, the board of public works having directed the advertisement but not the date, and the board of public works receives the bids on that date, it is a ratifica- tion of the act of the clerk 10 . When the bids are opened in the office of the board, in the presence of the bidders, it is a public bid 11 . Where the obligation exists to let a bid to 4. McBrian v. Grand Rapids, 7. Grant v. Detroit, 91 Mich. 56 Mich. 95, 108. 274. 5. Attorney General v. De- 8. Beniteau v. Detroit, 41 troit, 26 Mich. 263, 272; there Mich. 116, 118. were two bids for the same 9. Kundinger v. Saginaw, 132 kind of navcment, and the coun- Mich. 395, 402; Yarnold v. cil did not accept the lowest Lawrence City, 15 Ks. 126; bid because it was claimed that Chandler v. Board of Educa- the lowest bidder had no right tion. 104 Mich. 492. to use this pavement, but the 10. Duffy v. Saginaw, 100 court did not determine the Mich. 335. effect in this proceeding. 11. Cass Farm Co. v. De- ft Brevoort v. Detroit, 24 troit, 124 Mich. 423. Mich. 322, 325. 361 THE LAW OF TAXATION 510 the lowest bidder, the council cannot permit the lowest bid- der to withdraw his bid and award the contract to the next lowest bidder without a readvertisement of the letting of the contract 12 . Where a charter requires a work to be let to the lowest bidder, but permits the council to change the plans, it does not confer any right to change plans after a contract has been let, and make a new contract at an in- creased cost, without readvertising for bids. The increased tax will be without jurisdiction and void 13 . Neither can the municipality abat a portion of the proposed work, and tising for bids 14 . 361. Irregularities in Accepting Bids. Although the council does not award the contract to the lowest bidder, this action will not afford grounds for recov- ing damages against the city. Such a provision is not for the benefit of the bidder, but for the protection of the public. Whenever an action is brought for a breach of duty imposed by statute, the party bringing it must show that he had an interest in the performance of the duty, and that the duty was imposed for his benefit. But where the duty was cre- ated or imposed for the benefit of another, and the advan- tage to be derived by the party prosecuting, by its per- formance, is merely incidental, and no part of the design of the statute, no such right is created as forms the subject of an action. The remedy in such a case is by injunction before the contract is executed 15 . In the absence of a statu- 12. Twiss v. Port Huron, 63 work to be done under illegal Mich. 528, 532. contract will thereafter be 13. Auditor General v. estopped. Stoddard, 147 Mich. 329. 15. Talbot Paving Co. v. 14. W. F. Stewart Co. y. Detroit, 109 Mich. 657, 660; Flint, 147 Mich. 697; but this Strong v. Campbell, 11 Barb, case also holds that a tax payer, 138. who stood bv and permitted the 511 CONTRACT, LIABILITY, ETC. 362 tory provision requiring a contract to be let to the lowest bidder, an injunction will not lie, in the absence of fraud, to restrain a public body from accepting a higher bid 16 . When there is such a provision, and proposals are made and bids are put in in the usual manner of letting contracts for public works, the lowest bidder has no such fixed, absolute right that he is entitled to a mandamus to compel the letting of a contract to him after his bid has in fact been rejected and the contract awarded to another. The statutory pro- vision in such cases is designed for the benefit and protec- tion of the public, not the bidders. Even when the lowest bid has been accepted, and the officers refuse to enter into the contract, mandamus will not lie to compel the execution of the contract. Since the council has a right to reject all bids, it will not be compelled to accept any 17 . Where a bid- der has deposited a certified check with his bid, it would seem that he could withdraw the check when there was material misrepresentations as to the work to be done 18 . It is competent, however, for a tax payer to assail a con- tract for fraud in accepting bids, and show the increased cost of the work on account thereof 19 . $362. The Contract. In general, bidders must be given an opportunity to make a definite bid ; and the specifications in the notice may be all of the specifications of the contract. When the contract is executed, such a notice has all of the force and effect of an ordinance. A contractor cannot recover damages from the 16. Chandler v. Board of Campbell, 72 N. Y. 496. Education, 104 Mich. 292, fol- 17. Langley v. Harmon, 97 lowing State v. Board of Edu- Mich. 347. cation, 24 Wis. 683; Talbot 18. Whitney v. Hudson Vil- Paving Co. v. Detroit* Council, age, 69 Mich. 189, 204. 91 Mich. 262, where a man- 19. Whitney v. Hudson Vil- damus was refused; People v. lage, 69 Mich. 189. 204. 363 THE LAW OF TAXATION 512 municipality occasioned by a delay where the city is tem- porarily restrained from proceeding with the work 20 . The owner of a patent pavement, where the regular steps have been taken to make a contract, may contract with the city for the use of that pavement 21 . The fact that the work and materials were not such as were called for by the contract will not avoid the assessment. The courts will not interfere with the discretion of the authorized agents of the munici- pality in the exercise of the power granted by the legisla- ture except where there is a want of jurisdiction in the pro- ceedings 22 . A school board have no authority to require a contractor to employ union labor exclusively, upon a public building 23 . Unless there is legislative power so to do, the council cannot by ordinance, limit the hours of labor of workmen employed by city contractors, to eight hours a day 24 . 363. The Contract. Extras. When the charter requires a contract to be let as approved by the council, the board of public works, after the execu- tion of the contract, have no power to allow the contractor for extras. Although the contract may provide for altera- tions at the direction of the board, yet this is not authority for making any material alterations, as changing the line of a sewer. The contractor is bound to know that the board could not make a new contract with him, or make any sub- .20. Mathewson v. Grand cation, 139 Mich. 307. Rapids, 88 Mich. 558. 24. Attorney General v. De- 21. Detroit v. Robinson, 42 troit, 153 Mich. 525, holding Mich. 198; see 33, supra. that this violates provision of 22. Dixon v. Detroit, 86 the charter requiring contracts Mich. 516; Motz v. Detroit, 18 for more than $200.00 to be Mich. 515; Cass Farm Co. v. let to the lowest responsible Detroit, 124 Mich. 423. bidder. 23. Lewis v. Board of Edu- 513 CONTRACT, LIABILITY, ETC. stantial deviation from the one executed. Any other rule would open the door to an evasion of the statute 25 . Although the board of public works have charge of the work, and a provisions of the contract may allow them to make altera- tions, the same to be paid for at a fair valuation, yet such a provision does not authorize any change that will make the total cost of the work more than the contract price. The board of public works cannot bind the city to an increase of the contract price 26 . Persons dealing with a municipal corporation through its officers, must, at their peril, take notice of the authority of the particular officer to bind the corporation. If his act is beyond the limit of his authority, the municipality is not bound. Thus, where a contract re- served the right to lay water pipe in the street and the lay- ing of such pipe entailed a longer haul upon the contractor, he cannot recover therefor though promised extra pay by the engineer 27 . When a contractor assumes all risks of un- known obstructions, he cannot recover from the city because he encountered quicksand, which caused much work; the fact that his contract permitted extra pay for work ordered done by the city is immaterial when the city did not assume to dictate the method of construction 28 . Neither will the city be liable for extra work because the water board laid pipe before the paving was begun, which caused the pavement to settle and entailed extra work, the water board being inde- pendent of the council. Neither will the board itself be liable, because the only duty it owed was one to the public. It did not owe any duty to the contractor 20 . The municipality will not be liable to a contractor for a temporary delay in the 25. Camoau v. Detroit, 108 Mich. 237. Mich. 414, 419. 28. Gartner v. Detroit, 131 26. Chittenden v. Lansing, Mich. 21. 120 Mich. 539. 29. Grant v. Board of Water 27. Rens v. Grand Rapids, 73 Com'rs, 122 Mich. 694. (S3) 364 THE LAW OF TAXATION 514 work caused by the issuing of an injunction against the city, when the city has acted in good faith. Neither would it be liable if the contractor ceased work at the request of the board of public works. If the work was permanently stopped, the contractor could recover for the value of the work done. It is the duty of a contractor to know whether the city has the right to proceed with a work or not 30 . Where the council itself orders extra work, even though there should have been a readvertisement to charge the special assessment district, the municipality itself will be liable 31 . 364. Authority of Engineer. The authority of an engineer to modify a contract cannot be inferred from authority to direct its performance. Un- der a stipulation that the engineer's interpretation of a con- tract shall be final, his determination, in the absence of fraud, will be binding upon both parties insofar as does not attempt to modify the contract. Thus, where a contract provided that water pipe should not be laid in water, and the engineer directed that they should be, his decision was held binding upon the city although a defect resulted therefrom. Under such a provision, the contractors are bound to obey the or- ders of the supervising engineer, when made in good faith, whether those orders are to their advantage or detrimental to their interest; nor are they exempt from obedience be- cause they believe those orders to be unwise. A munici- pality cannot avail itself of the advantage of having a super- vising architect, with power to decide upon every detail as it may arise, without taking the consequences of an erroneous decision. His decision will not be reviewed if honestly made ; it is not binding if it does not accord with his honest judg- 30. Mathewson v. Grand 31. Pierson v. Ionia, 15 L. N. Rapids, 88 Mich. 558. 189, Mich. 515 CONTRACT, LIABILITY, ETC. 365 ment. The burden of proving dishonesty is upon the part) attacking the decision 82 . Where a contractor, in pursuance let a new contract, even at a reduced rate, without readver- of the provisions of his contract, and under the directions of a supervising engineer, performs his work, and it proves defective, th econtractor is not chargeable with the bad re- sult. If there is a dispute as to whether or not a contract was performed, that dispute is to be settled by a jury. The board of public works cannot arbitrarily decide that it was not performed 38 . 365. Non-Performance of Contract. The fact that an improvement is not made according to the contract will not afford an excuse for setting aside the tax. The court does not interfere with the discretion of the authorized agents of the municipality except for juris- dictional defects. The fact that the work or materials were not such as were called for by the contract is only an irregu- larity ; it is no defense to enforcing the contract or the assess- ment 34 . A contractor cannot recover damages from the city for a temporary delay caused by an injunction issued against the city, where the municipality had acted in good faith. If. however, the work was permanently stopped, he could re- 32. See "Extras," 363, supra. not performed according to its Lampson v. Marshall, 133 Mich. terms. The proper authorities 2ol, 259, following Chicago, etc., must decide upon this, and if R. Co. v. Price, 138 U. S. 185. they accept the work, the 33. Schliess v. Grand Rapids, acceptance, in the absence of 131 Mich. 52, 60. fraud, is conclusive. The pre- 34. Motz v. , Detroit, 18 text that the tax payer shall Mich. 515; Dixon v. Detroit, 86 avoid payment of his assess- Mich. 516, 520; Harper v. Grand ment because the funds are in- Rapids. 105 Mich. 551, 553; judiciously applied, is the worst Cass Farm Co. v. Detroit, 124 form of repudiation." Haley v. Mich. 426; the principle has also Alton, 152 111. 113, quoting been thus stated: "It is no. from State v. Jersy City, 29 defense to an assessment that N. J. 441. the contract for the work was 366, 367 THE LAW OF TAXATION 516 cover the value, at least, of what had been done 35 . There is no implied contract between the contractor and the city in these matters, where the contract is required to be let to the lowest bidder. Work partially done under a broken contract, which cannot be enforced as a written contract, stands as if there was no contract. Unless the contract itself provides some help in such an emergency, there is no remedy. Action cannot be brought upon the quantum meruit. If the rule were otherwise, the contractor would be recovering for work at a price not fixed by competitive bidding, since the competitive bids were upon the whole work and not upon a part of the work 36 . 366. Stipulated Damages. A provision charging a contractor ten dollars per day as stipulated damages for the non-performance of his work after the time stipulated, is a valid provision and not neces- sarily a penalty ; since, in addition to the cost of extra super- intendence, the city loses the use of the work itself. Paying estimates as they are made, is not a waiver of this pro- vision 37 . 367. Materials in Street. When a street is repaved, the old material may be used by the city on other streets 38 . In grading a street, the city has an undoubted right to remove the soil to other streets for filling purposes 39 . 35. Mathewson v. Grand the rule if the owner had paid Rapids, 88 Mich. 558. for this material originally, or 36. Detroit, v. Mich. Paving whether, if it was of any value, Co., 36 Mich. 335, 339. it should be credited to the 37. Lampson v. Marshall, district. 133 Mich. 251, 264. 39. Griswold v. Bay City, 35 38. Shimmons v. Saginaw, .Mich. 452; the court does not 104 Mich. 512; the court does decide whether or not the city not determine what would be could sell it. CONTRACT, LIABILITY, ETC. 368. Primary Liability for the Work. In general, unless restricted by statutory provisions, the municipality is prifnarily liable for this class of improve- ments. Even though the contract itself may provide for pay- ment of the work out of the special fund to be raised by assessment upon the abutting property owners, and the city is without authority to enforce this assessment, the city will be liable. It has had the benefit of the performance of the work, and ratified it 40 . It would seem, however, that under such a provision, the contractor must wait until the assess- ment has finally failed ; the fact that the proceedings are tied up by injunction and no steps were taken to establish the validity of the assessment that an action by the contractor would not lie 41 . If the contract for paving is valid, but the assessment invalid the municipality is bound by the terms of its contract as first made. Although the power to reassess may be granted by a special act of the legislature, such act cannot cut down the amount of the original contract 42 . In case of an excess in a special assessment, and the charter provides that such excess shall be paid back pro rata to the tax payers, the persons entitled thereto may bring assumpsit and recover their share. In such a case, where there are several assessing districts having an excess, the city cannot set-off the excess in one district against what may be due in another, as each district must stand upon jts own foot- ing 48 . The city will be liable for a defective plan which will of necessity cause injury, as where a sewer must damage a 40. See "Extras," 363, supra; 41. Affeld v. Detroit, 112 "Bonds," 8360, post. Corliss v. Mich. 560. Highland Park, 132 Mich. 152, 42. Whitely v. Lansing, 27 161 ; Adams v. Bay City, 78 Mich. Mich. 131. 211, 214; Commercial National 43. Thayer v. Grand Rapids, Bank v. Portland, 24 Qr. 188; 82 Mich. 298. Chicago v. People, 56 111. 327. 368 THE LAW OF TAXATION 518 land owner 44 . It will be liable where it changes the grade of a street, and thereby dams water back upon private prem- ises 46 . The city will not be liable for a royalty upon a patented pavement which it had agreed to pay, if the patent is declared void 46 . If the contractor is unable to complete his work, through no fault of the municipality, he cannot recover for the work he has done ; an action will not lie upon the quantum meruit 47 . If, however, the work is perma- nently stopped by the city, the contractor can recover the value of the work he has performed 48 . Where a charter provision requires that the cost of a special improvement shall be paid out of the special asessment fund, the corpora- tion has no power to make itself responsible for any special work. The work can only be paid for by the funds actually in the treasury provided for this specific purpose. The municipality is only bound to use reasonable care and dis- patch in the collection and payment of such fund. The con- tractor must recognize the ordinary methods provided by law for raising the money, and look to that only. The city at large will not be liable 49 . Even though there should be a delay in the collection of this tax, an order on the general fund of the municipality for such work cannot be enforced 60 . Where the council neglect to take from a contract the bond required by C. L. 10,743, the members of the council indi- vidually become liable to material men for any loss sustained by them on account thereof. This action is based upon tort, not contract. It is incumbent upon the plaintiff to show that he is unable to collect his debt from the contractor, thereby 44. Defer v. Detroit, 67 Co., 36 Mich. 335, 339. M ; ch. 346. 48. Mathewson v. Grand 45. Rice v. Flint, 67 Mich. Rapids, 88 Mich. 558. 401. 49. Goodrich v. Detroit, 123 46. Detroit v. Robinson, 42 Mich. 279, 287. Mich. 198, and 38 Mich. 108. 50. Second National Bank v. 47. Detroit v. Mich. Paving Lansing, 25 Mich. 207. 519 CONTRACT, LIABILITY, ETC. 369 having suffered an injury as the direct result of the negli- gence of the council 51 . The bondsmen are liable to the material men. The difference between a sub-contractor and a material man is, that the subcontractor furnishes material under the original contract, while a material man furnishes them according to certain measures, without reference to the contract 52 . Where the sureties deliver a bond not signed by the principal, the sureties are liable thereon 53 . The statute does not require a bond where the municipality itself under- takes the work; but where a contractor furnishes materials to a city gives such a bond, it will be available to a sub- contractor 54 . A manufacturer furnishing lockers to the con- tractor of a public building will be deemed a material man where the original contract for the construction of the build- ing is not the standard of the work or materials furnished 55 . 369. Bonds. Purchasers of public bonds are bound to know the extent and limitations upon the authority of corporations to issue bonds. They are bound, in other words, to know the law under which the authority is exercised. They have a right, however, to rely upon all of the facts asserted or appearing upon the face of the bonds made by any person or body authorized by law to pass upon and determine the facts. 51. Smith v. Hubble, 142 54. People v. Newberry, 152 Mich. 637. Mich. 292. 52. Michaels v. McRoy, 148 55. People v. Title Guar- Mich. 577 ; Davis v. Campfield, 150 antee & Trust Co., 15 L. N. Mich. 675. 904, Mich. Where the 53. J. E. Bartlett Co. v. specifications for the lockers in Carrol, 151 Mich. 233. In John- the original contract were in- son v. Kimball Twp., 39 Mich, definite and incomplete. See 187, the sureties were held not People v. Campfield, 150 Mich, liable when the bond, not 675; People v. Banhagel. 151 signed by the principal, was Mich. 40. delivered without authority. 369 THE LAW OF TAXATION 520 When the officer whose duty it is to make the record, cer- tifies that there is such a record, his neglect to have entered such acts in his records will not defeat a bona fide purchaser of the bonds. Thus, when school bonds recite that the school board directed their issuance, the fact that the record of the board does not show such authority, will not invalidate them in the hands of an innocent purchaser 56 . Although the bonds may have been issued for an illegal purpose, purporting to be for a park but in fact were intended as a bonus, yet a bona fide purchaser, relying upon the recitals in the bonds, will be protected 57 . Bonds may be issued before the pro- posed work is declared necessary; and it will be no objection to such issue that the right of way for the work has not been procured 58 . Where there is a total want of power, under the law, in the officers or board who issue the bonds, then the bonds will be void in the hands of innocent holders, the distinction being between questions of fact and questions of law. If it is a question of fact and the board or officers are authorized by law to determine the fact, then their de- termination is final and conclusive. And although it may be contrary to the fact, yet, if recited in the bond that the necessary and proper steps required by law to be taken, had been taken, then the municipality is estopped from denying that they had been taken 59 . Where bonds recite that they are for "loans lawfully made," such a recital infers that the loan must have been made by the vote of the electors. If then the bonds do not also recite that such a vote was had, the 56. Gibbs v. School Dist., 88 Village v. Schmid, 151 Mich. Mich. 334, 337. 85. same v. same, 15 L. N. 57. Thompson v. Mecosta 1008. Village, 127 Mich. 522; Schmidt 58. Naegly v. Saginaw, 101 v. Frankfort, 131 Mich. 197, Mich. 532. 200; Thompson v. Mecosta Vil- 59. Spitzer v. Blanchard Vil- lage, 141 Mich. 176; this will be lage, 82 Mich. 234. a question of fact; Frankfort 521 CONTRACT, LIABILITY, ETC. 370 purchaser will not be protected, if in fact such a vote was required 60 . The reorganization of a school district contain- ing substantially the same territory as the old one, does not affect bonds issued prior to such reorganization 81 . The sureties on a bond given by a public contractor to secure laborers and materialmen will not be released because the municipality pays the contractor faster than he has earned payment. Subcontractors, however, will not be deemed laborers or materialmen, and cannot recover upon such bond 62 . Neither can the sureties avoid liability by showing that the municipality did not approve the bond of the prin- cipal 68 . (See Form, Appendix A. ) 370. The Record. The record, under the various charters, must show the aye and nay vote of each member of the council in ordering an assessment. It will not be sufficient to state that the vote was unanimous 84 . The principle upon which the assessment was made must appear of record ; it cannot be left to infer- ence 65 . A prior petition for an improvement cannot be used to supply the defects of a subsequent petition 66 . It is not necessary that the roll show the width of street intersec- tions, when the details appear in the record 67 . The record of plans of the board of public works for improvement of the streets, cannot rest in parol 68 . Parol evidence is not 60. Portsmouth Savings Bk. 65. Adams v. Bay City, 78 v. Ashley Village, 91 Mich. 670. Mich. 211, 214; Warren v. 61. Wayne Co. Savings Bk. Grand Haven. 30 Mich. 24, 20; v. School Dist., 15 L. N. 252, White v. Saemaw, 67 Mich. 40, Mich. . 41. 62. Reynolds v. Banhagle, 66. Auditor General v. Fish- 151 Mich. 40. er, 84 Mich. 128. 63. J. E. Bartlett Co. v. 67. Walker v. Detroit, 136 Carroll, 151 Mich. 233. Mich. 6. 64. Steckert v. East Saginaw, 68. Lamed v. Briscoe, 62 22 Mich. 104, 106. Mich. 393. 371, 372 THE LAW OF TAXATION 522 admissible to contradict the record of the proceedings of the common council ; but it is admissible to show that a part of the record was omitted 69 . 371. Presumptions. No presumption arises that the work is necessary because the improvement was ordered or the contract therefor let 70 . The presumption is that the cost of street intersections is paid by the city where it is so ordered by statute 71 . Public property owned by one of the political subdivisions of the state is presumed to be exempt from all kinds of taxes; but all other kinds of property are presumed to be taxed, and only are exempt when expressly made so by statute 72 . When the council orders a certain sum spread upon lots benefited, it will be presumed that the lots were benefitted to that ex- tent 73 . The action of the assessing board will be presumed to be correct, and will not be reviewed except for fraud 74 . 372. Qualifications of Officers. An alderman interested within the assessment district is not disqualified to vote upon determining the assessment district, though he would be to vote upon the assessment 75 . A juror in a street opening case, who had served upon a former panel on the piece in question, the first jury having disagreed, is disqualified to sit on the second jury 76 . 69. Wheat v. Van Tine, 149 74. See "Collateral attack," Mich. 314. 455, post; Shimmons v. Sagi- 70. Hoyt v. East Saginaw, 19 naw, 104 Mich. 512; Davies v. Mich. 39, 44; White v. Saginaw, Saginaw 87 Mich. 439; Powers 67 Mich. 33, 41. v. Detroit, 139 Mich. 30; Walker 71. Beniteau v. Detroit, 41 v. Detroit, 138 Mich. 538. Mich. 116. 75. Steckert v. East Sagi- 72. Big Rapids v. Super- naw, 22 Mich. 104, 112. visors, 99 Mich. 351. 76. Hester v. Chambers, 84 73. Goodrich v. Detroit, 123 Mich. 562. Mich. 159. 523 CONTRACT, LIABILITY, ETC. 373, 374 ;|373. Delegated Authority. The legislature may delegate to the council the power to determine whether a proposed improvement is a public neces- sity or not 77 ; or the mode of giving notice or of making the assessment 78 . It cannot delegate to local officers previously appointed, the power to purchase lands or issue bonds 79 . The council cannot delegate their power to determine the assessing district to commissioners 80 . Neither can it dele- gate its power to determine the amount to be paid by the city 81 . It may delegate the power to make the assessments to other officers, or a board, since this is administrative work 82 . 374. Ratified Acts. The council may adopt the report of the board of public works as to the cost of the work 83 . It may determine the district by adopting the plat thereof made by the engineer 84 . If may adopt the assessment made by him 85 . On the review of the roll, it may adopt the report of a committee 86 . The board of public works may adopt the date of opening bids as fixed by its clerk 87 ; or it may adopt the report of the sur- 77. Voigt v. Detroit, 123 82. Warren v. Grand Haven, Mich. 547. 30 Mich. 24. 78. Williams v. Detroit, 2 83. Cass Farm Co. v. De- Mich. 560, 580; Auditor General troit, 124 Mich. 426. v. Hoffman, 132 Mich. 198. 84. Auditor General v. Cal- 79. Board of Park Com'rs, v. kins, 136 Mich. 1, 5; Walker v. Detroit Council, 28 Mich. 228; Detroit, 136 Mich. 6; Davies Cass Farm Co. v. Detroit, 124 v. Saginaw, 87 Mich. 439; Mich. 426. Boehme v. Monroe City, 106 80. Scofield v. Lansing, 17 Mich. 401. Mich. 437, 447. 85. Auditor General v. Hoff- 81. Scofield v. Lansing, 17 man, 132 Mich. 198. Mich. 437, 447; Thomas v. 86. Brown v. Saginaw, 107 Gain, 35 Mich. 155; Voigt v. Mich. 643. Detroit, 123 Mich. 547; Good- 87. Duffy v. Saginaw, 106 rich v. Detroit, 123 Mich. 559. Mich. 335. 375, 376 THE LAW OF TAXATION 524 veyor 88 . Ratification of acts done may be shown from the fact that the council paid the bills incurred 89 . The act of a committee awarding contracts, when ratified by a board, will be deemed the act of the board 90 . 375. Healing Acts. The statute does not heal lack of giving the statutory notice as to the determination of the proposed improvement. Lack of such notice may be raised on the hearing of the audi- tor general's petition 91 . An omission to file proof of pub- lication of a notice of review of the assessment, when such notice was in fact given, will not invalidate the roll 92 . A tax roll unsigned by the assessors, cannot be cured by being confirmed by the council 93 . If jurisdiction is acquired by the council, no individual can complain of an error that does not injuriously affect him. He will not be injured by an omission of the dollar mark from the roll 94 . An omission to show the principle of the assessment is not cured by a charter provision making the roll, after endorsement, prima facie evidence of the regularity of the tax 95 . 376. Estoppel. A petitioner for a public improvement is presumed to pray for legal proceedings in accordance with the existing laws; and where the council depart from those laws, he will not be estopped from contesting the tax. Neither will a petitioner be estopped from contesting a tax because of 88. Cummings v. Grand 92. Shimmons v. Saginaw, Rapids, 46 Mich. 150, 158. 104 Mich. 512, 520. 89. Wheat v. Tine, 149 Mich. 93. Thompson v. Detroit, 114 314. Mich. 502. 90. Raymond v. McKenna, 94. Williams v. Detroit, 2 147 Mich. 35. Mich. 560, 579. 91. Auditor General v. Cal- 95. Adams v. Bay City, 78 kins, 136 Mich. 1. Mich. 211, 214. .*:.':> CONTRCCT, LJABIUTY, ETC. 376 irregularities, if he takes seasonable action after the dis- covery of the defect, although the improvement may have been completed. A citizen has a right to assume that the law is being obeyed rather than violated, by the public authori- ties; and in the absence of any previous knowledge on his part of their unlawful action, he is in time with his protest when they attempt to deprive him of his rights or property under such proceedings. A petitioner for a special improve- ment will be estopped from denying that the council had power to grant his petition, but he will not be estopped from objecting because the proceeding has not been carried on according to law 98 . An alderman who has taken no part in levying a special assessment except to vote for a day of hearing for review, is not estopped 97 . A land owner may raise for the first time when the auditor general files his petition, objections that the statutory notice of a meeting of the council to hear objections to the proposed improvement was not given. The statute gives him the right to wait until the state moves to foreclose the lien upon his property, and then to appear and make any objections which would be fatal to the tax 98 . But where the charter does not expressly re- quire a petition for the work, a tax payer cannot wait until the work is completed and the auditor general has filed his petition, to set up a defect in the petition presented 99 . A city is not estopped from setting up defects in a sewer be- cause it has paid estimates as the work progressed 1 . Where property owners consent to a waiver of charter provisions in the levy of a special assessment, they cannot afterward set up such variation from the charter provisions as a ground 96. Steckert v. East Sagi- kins, 136 Mich. 1, 5. naw, 22 Mich. 104. 111. 99. Auditor General v. Hoff- 97. Warren v. Grand Haven, man, 132 Mich. 198. 30 Mich. 24. 1. Lampson v. Marshall, 133 98. Auditor General v. Cal- Mich. 251. 376 THE LAW OF TAXATION 526 for setting the tax aside 2 . So also, where they petition for an improvement in accordance with a city charter, they will thereafter be estopped from setting up the illegality of the charter provisions in accordance with which the improve- ment was made 3 . It is a general rule that a party who has personal knowledge of the making of an improvement and that his property is to be assessed therefor, but made no objections thereto until after the work was completed, will be estopped from complaining of the tax 4 . Where the char- ter required that the board of public works should annually report such sewers as they deemed necessary to be built dur- ing the year, a tax payer cannot object to the building of a sewer not included in such report when he did not appear before the council and object on that ground 5 . The court intimates that jurisdictional defects may be waived by estoppel 6 . A person whose property is omitted from the roll by mistake, is not injured thereby and cannot complain 7 . Neither is a person injured whose property is twice assessed, by mistake, and another parcel omitted from the roll, where the person whose property was omitted pays one of the as- sessments supposing it to be upon his own property 8 . A tax payer who does not tender the legal portion of his tax, though a part of the levy on his premises are illegal, cannot 2. Jackson v. Detroit, 10 283, 291; Stewart v. Detroit, Mich. 248. 137 Mich. 381; Shaw v. 3. Motz v. Detroit, 18 Mich. Ypsilanti, 146 Mich. 712; Cpn- 495, 528; Byram v. Detroit, 50 stantine v. Albion, 148 Mich. Mich. 56. 403, where the contract was let 4. Lundbom v. Manistee, 93 before the funds were provided. Mich. 170; Gates v. Grand 5. Nelson v. Saginaw, 106 Rapids, 134 Mich. 96; Nowlen Mich. 659. v. Benton Harbor, 134 Mich. 6. Walker v. Ann Arbor, 118 401; Tuller v. Detroit, 126 Mich. 251. Mich. 605; Fitzbaugh v. Bay 7. Beecher v. Detroit, 92 City, 109 Mich. 586; Butler v. Mich. 268, 274. Detroit, 43 Mich. 552, 558; 8. Gregory v. Ann Arbor, Goodwillie v. Detroit, 103 Mich. 127 Mich. 454. 527 CONTRACT, LIABILITY, ETC. 376 object that the legal charges and expenses to the time of pay- ment are included in the valid portion 9 . One who has signed the petition for an improvement and not objected to the assessment, cannot complain of a temporary stoppage of water on his premises 10 . Where the contractor has per- formed his work in the presence of the authorized inspector, and the city has acted weekly in making payments upon re- ports of the work, the city is estopped from afterwards set- ting up an improper performance of the contract 11 . 9. Powers v. Detroit, 11 L. 11. Schliess v. Grand Rapids, N. 742, 139 Mich. 30. 131 Mich. 52, 62; and so is a tax 10. Hembling v. Big Rapids, payer; W. F. Stewart Co. v. 89 Mich 1; Brown v. Grand Flint, 147 Mich. 697. Rapids, 83 Mich. 101. PART FOUR PLEADING AND PRACTICE CHAPTER XXIII. FORECLOSURE OF TAX LIEN. 377. Petition and Record. 378. Parties to Petition. 379. Minors and Incompetents. 380. The Subpoena. 381. Order of Hearing. 382. Designation of Newspaper. 383. Publication Substituted Service. 384. Publication Details. 385. Proof of Publication. 386. Objections or Answer to Petition. 387. Order Pro Confesso. 388. Jurisdiction of Court. 389. Hearing on Petition and Entry of Decree. 390. Decree General Effect. 391. Decree Particulars. 392. Decree . Evidence of 393. Appeal from Decree. 394. Report of Sale. 395. Report of Sale to Auditor General. 396. Order of Confirmation. 397. Certificate of Error 398. Setting Aside Sale by the Court. 399. Petition to Court Laches. 400. Bill of Review. 401. Writs of Assistance. 402. Writs of Assistance Notice. 403. Writs of Assistance Service and Return of Notice. 404. Writs of Assistance Defences To 377. Petition and Record. The law provides that the petition filed by the auditor gen- eral shall be in a record book, which shall contain a descrip- FORECLOSURE OF TAX LIEN ? ''>" " tion of the land and the taxes thereon in appropriate col- umns; that such record shall be ruled with columns for the description, the amount of taxes, the interest, charges, etc., and that it shall contain blank columns for other specific entries to be made at the time of the decree, and upon sale. It is not contemplated that either petition or decree shall con- tain any description of the land or statement of the amount decreed to be due, but that both petition and decree shall refer to the record book, which is denominated the "Tax Record." The amount found to be due is entered in the tax record by the register of the court, and the amount for which the land is sold, and the name of the purchasers, with their addresses, etc., are to be entered therein by the county treasurer at the time of sale. The decree is to be entered of record in the court, and a certified copy is to be annexed to the tax record. After the entry of the decree, the entire tax record goes to the county treasurer, and remains in his office. After the sale, the treasurer is required to make and file a report of the sale, and the sale stands confirmed unless ob- jections are made within eight days after the time limited for filing such report. As soon as sales are confirmed, the treas- urer reports the same to the auditor general 1 . The omis- sion of anything in the tax record to indicate that the figures represent dollars renders the decree void 2 ; but the omission of the dollar mark in the petition, however, or in the pub- lished list, does not avoid the decree 3 . The fact that the original petition was filed with the register and then left with 1. C. L. 3884, Tax Law of the form prescribed in the law 1889, amended by Act No. 262 of 1889 is held sufficient. See of Public Acts of 1899, 861. McKinnon ' v. Weston, 104 2. Millard v. Truax, 99 Mich. Mich. G42: Case v. Skinner, 121 157, 159; Russell v. Chittenden, Mich. 206. 123 Mich. 546. In Auditor Gen- 3. Muirhead v. Sands, 111 eral v. Slowman, 83 Mich. 460, Mich. 487. 184) 378 THE LAW OF TAXATION 530 the county treasurer will not avoid a decree 4 . It is not the purpose of the statute to withdraw this tax record from the control of the court. It is only to remain in the county treas- urer's office when not needed in the clerk's office, which is the office of the court, and the court may possess itself of this record at any time and for any purpose it may be re- quired 6 . It is immaterial that the register has not placed his file mark thereon, when the order of hearing recites that it was filed 6 . The petition cannot be heard at the same term in which it is filed; if it is, any decree based thereon is void 7 . Lands bid off to the state should not again, while held by the state, be included in the petition for taxes returned after the land was so bid in, while such bids are still held by the state; and a sale for such subsequent taxes will be void. Such lands should be included, however, if the state has parted with its interest 8 . The grouping of taxes in the peti- tion, if an error, is cured by the decree. It does not go to the jurisdiction of the court 9 . 378. Parties to Petition. Inasmuch as the tax proceedings are in rem, and no per- sonal decree can be entered against anyone, the only neces- sary parties are the owners of the land at the time the audi- tor general's petition is filed. It cannot interest the owner that his immediate or remote grantor be made a party. If he has a warranty deed, he may notify the grantor therein to come in and defend the action. The state is only inter- ested in the proceedings against the land 10 . 4. Barnum v. Barnes, 118 eral, 121 Mich. 56. Mich. 264. 8. Connecticut, etc., Ins. Co. 5. Mersereau v. Miller, 112 v. Wood, 115 Mich. 444. Mich. 103, 105. 9. Church v. Nester, 126 6. Mann v. Carson, 120 Mich. 547. Mich. 631. 10. Auditor General v. Stiles, 7. Ledyard v. Auditor Gen- 83 Mich. 460, 463. < ; 1 FORECLOSURE OF TAX Lll.S 379 379. Minors and Incompetents. The law of 1893 requires the appointment of a guardian ad liteni in tax proceedings for those under disability, even though they have a general guardian. A decree and sale without, such appointment will be set aside and the person under disability permitted to redeem 11 . This right is statutory and cannot be extended to persons under disability in the absence of a statute. Prior to 1893 the lack of a guardian ad liteni afforded no grounds for setting the sale aside or permitting a redemption after the time fixed by statute had expired 12 . Limitations of remedies are purely statutory. While it may well be doubted whether the legis- lature could enact an immediate bar to any existing right, yet it is clearly settled that to prescribe the period within which any right may be enforced is within its power. It may or may not, except disabilities according to its pleasure. If it omits to say anything upon the subject, there is no power in the courts to supply what may have been an acci- dental omission 13 . While the statutes are to be favorably regarded, it is at the same time to be borne in mind that the right to redeem comes from the statute exclusively, and is to be asserted only in the cases and under the circumstances which are there prescribed. The courts can grant no exten- sion of the statutory time ; and they can make no exceptions frorp the general provisions of the statute to meet the circum- stances of hard cases; and if the statute fails to provide for the cases of disability like those of infancy, coverture, or absence from the country, the courts are without authority to do so. . The general statute requiring the appointment of 11. 69, Act 206, Public Acts Mich. 315, 318, quoting Judge of 1893; C. L. 3892. Foegan Cooley. v. Carpenter, 117 Mich. 89. 13. Metz v. Hipps, 96 Pa. St. 12. Dumphey v. Hilton. 121 15. 380 THE LAW OF TAXATION 532 guardians ad litem in cases of disability does not apply be- cause the collection of a tax is a proceeding in ram 14 . 380. The Subpoena. The statute of 1889 evidently intended the provision that a subpoena should be served upon delinquent tax payers who were non-residents of the state to apply only to those per- sons against whom the tax was assessed, whose names ap- peared upon the assessment roll. The statute nowhere pro- vided any compensation for the examination of records in the office of the register of deeds, to determine in whom the title of record of the lands returned delinquent for taxes stands and against whom subpoenas upon the filing of the petition shall issue. It simply provides that the register shall issue a subpoena directed to each delinquent tax payer who is a resident of this state. The legislature evidently in- tended that the subpoena should issue and be served upon the person against whom the tax was assessed, and whose name appeared upon the tax roll for that year. It evidently was not the intention of the legislature to make the jurisdic- tion of the court depend upon the service of the subpoena in that class of cases where the lands were not occupied and were assessed as non-resident, as there could be no means by which the register of the court could determine the real owner of the premises by any search which he might make. In other cases the publication of the petition and notice by the auditor general is sufficient 15 . Under this statute, it was mandatory to assess the property to the owner or occupant, if known, in order to obtain service of the subpoeria; and 14. Dumphey v. Auditor McGee v. Bailey, 86 la. 513. General, 123 Mich. 354; Keeley 15. Tax Law of 1889; In re v. Saunders, 99 U. S. 441, 445; Wiley, 89 Mich. 58, 62; Tremble Levy v. Newman, 130 N. Y. 11, v. Hoffman, 130 Mich. 676. 13; Smith v. Macon, 20 Ark. 17; ." : ; FORECLOSURE OF TAX LIEN an administrator, executor, guardian or trustee having con- trol of the property, might be treated as owner for the pur- poses of assessment. Real property not in the control of such persons could be assessed to the estate without naming the heirs, until they have given notice of their names and interest, and of the division of the estate. Where the estate was in the probate court, the supervisor could there obtain the names of the heirs 18 . When the premises were occupied by the husband and wife, the wife owning the property, and the subpoena was served upon the husband alone, the court obtained no jurisdiction and the sale was void 17 . When the subpoena was addressed to the owner, who was a non-resi- dent, a return by the sheriff of the county where the land was situated, that the defendant could not be found, does not confer jurisdiction. It should have been sent to the county where the party resided, if in the state, and a return* made by the sheriff of that county 18 . In such cases, where the land was assessed to the owner, the subpoena must have issued to confer jurisdiction 19 . Where one owner was served with a number of subpoenas, each relating to a different parcel, the sheriff was only entitled to charge one mileage and one service fee 20 . 381. Order of Hearing. The court may revoke an order fixing the time of hearing, and enter another order fixing a later time. The statute con- templates that the court shall make all orders that may be necessary to facilitate proceedings 21 . When the order fol- 16. Fowler v. Campbell, 100 Mich. 277. Mich. 398. 20. Auditor General v. Baker, 17. Taylor v. Deveaux, 100 84 Mich. 112. Mich. 581. 21. C. L. 3885 as amended 18. Coyle v. O'Connor. 121 Tax Law 862; Haven v. Owen, Mich. 596. 121 Mich. 51. 19. Nowlan v. Hall, 128 382, 383 THE LAW OF TAXATION 534 lows the form prescribed by statute, it is sufficient though it does not state the year for which the taxes were assessable 22 . The order for the hearing must be entered at a time prior to that in which the petition is to be heard. A hearing in the same term in wich the petition is filed is void 23 . A failure to record the order will not avoid a tax sale. This requirement is for the purpose of perpetuating evidence. No jurisdictional action is based upon the record and the court will not lose jurisdiction because of the failure of the clerk to perform his duty 24 . 382. Designation of Newspapers. It is unnecessary that either the affidavit of publication or the notice show affirmatively what newspaper the auditor general had designated in which to publish the petition and notice 25 . The order designating the newspaper may precede the filing of the petition 26 . The designation of a newspaper as "Muskegon Chronicle" will support a publication in the "Muskegon Weekly Chronicle." The auditor general does not have to make a record of his designation; and a news- paper that is satisfactory to him complies with the statute 27 . 383. Publication. Substituted Service. The statute makes the publication the equivalent of per- sonal service, and it is therefore the duty of the owner to watch the proceedings provided for by law for the fore- 22. 62, Act 206 of Public 274. Acts of 1893; C. L. 3885; 25. C. L. 3886; Tax Law Waldron v. Auditor General, 63; Watts v. liublitz, 99 Mich. 121 Mich. 56. 586. 23. Ledyard v. Auditor Gen- 26. Wilkins v. Keith, 121 eral 121 Mich. 56; Roberts v. Mich. 66; Church v. Nester, 126 Loxley, 121 Mich. 63; Tromble Mich. 547. v. Hoffman, 130 Mich. 676. 27. Waldron v. Auditor Gen- 24. Burns v. Ford, 124 Mich. eral, 109 Mich. 231, 233. 535 FORECLOSURE OF TAX LIEN 383 closure of the tax lien, and interpose any objection he may have to the validity of the tax 28 . Proceedings of this nature are not usually proceedings against parties; nor, in the case of lands or interests in lands belonging to persons unknown, can they be. They are proceedings which have regard to the land itself, rather than to the owner of the land; and if the owners are named in the proceedings, and personal notice is provided for, it is rather from tenderness to their interests, and in order to make sure that the opportunity for a hearing shall not be lost to them, than from any necessity that the case shall assume that form. In all other cases of proceed- ings in rem, if the law makes provision for publication of notice in a form and manner reasonable calculated to bring the proceedings to the knowledge of the parties who exer- cise ordinary diligence in looking after their interests in the lands, it is all that can be required 29 . The rule is that a law authorizing the imposition of a tax or assessment upon prop- erty according to its value does not infringe that provision of the Fourteenth Amendment to the Constitution of the United States which declares that no state shall deprive any person of property without due process of law; if the owner has an opportunity to question the validity of the amount of it, either before that amount is determined or in subsequent proceedings for its collection. That the notice is not per- sonal but by publication, is not sufficient to vitiate it. Where the statute prescribes the court in which, and the time at which, the various steps in the collection proceedings shall be taken, a notice by publication to all parties interested to 28. C. L. 53887; Tax Law Campbell, 100 Mich. 398; Led- 564; Muirhead v. Sands, 111 yard v. Auditor General, 121 Mich. 487; In re Wiley, 89 Mich. 56, 58. Mich. 58; Cole v. Shelp, 98 29. Ball v. Ridge Copper Co. Mich. 58: Ball v. Ridge Copper 118 Mich. 7, quoting Judge Co., 118 Mich. 7, 10; Fowler v. Cooley. 384 THE LAW OF TAXATION 536 appear and defend, is suitable, and one that sufficiently answers the demand of due process of law 30 . Substituted service may answer in all cases which are substantially pro- ceedings in rem 31 . The published notice must designate with certainty where the sale or hearing will take place 32 . Where the statute provided that the sale should be held at the seat of justice, of the county, at such place "as the county treasurer may select/' and the auditor general so specified in his notice, the county treasurer supplementing this published notice by posting several notices that the sale would be held at the court house, it was held a good and sufficient notice 33 . 384. Publication. Details. The omission of the dollar mark in the published list, or in other proceedings prior to the decree, does not deprive the court of jurisdiction to hear the petition 34 . It is not necessary that time enough intervene between the last pub- lication and the day fixed for the hearing to enable a land owner to reach the court from where he may be 35 , or that ten days intervene between the last publication and the day of hearing 36 . The publication of the notice in a supple- ment of the newspaper is sufficient. (Newspapers commonly consist of two or more unbound sheets, which are liable to get separated. The designation of one part as a supplement 30. Winona, etc., Land Co., 33. Clark v. Mowyer, 5 v. Minnesota, 159 U. S. 537; Mich. 462, under 74, Chap. 20, Toolan v. Longyear, 13 L. N. R. S. 1846; Wisner v. Daven- 134, 144 Mich. 55. port, 5 Mich. 501. 31. Francis v. Grote, 14 Mo. 34. Muirhead v. Sands, 111 App. 324; Eitel v. Foote, 39 Mich. 487, 494. Cal. 439; Chauncey v. Wass, 35 35. Waldron v. Auditor Gen- Minn. 23; Kansas City v. eral, 109 Mich. 231. Duncan, 135 Mo. 583. 36. Burns v. Ford, 124 Mich. 32. Miles v. Walker, 4 Mich. 274; Eldridge v. Richmond, 120 461. Mich. 586. 537 FORECLOSURE OF TAX l-IKN does not make it less a part of the newspaper 37 . The statute does not contemplate the publication of the list of lands held upon state bids, or the list of state tax lands 38 . The pub- lication of the list must not only be in the English language but it must be in a newspaper printed in English and de- signed to reach English readers 39 . The object of such a publication is to acquaint the people of the proceedings about to be taken, and the mass of our people speaking and reading only the English language, the object of the publication would be defeated by its publication in a newspaper pub- lished in a foreign tongue 40 . Four insertions in a weekly newspaper is sufficient, though less than four weeks inter- vene between the first publication and the day of hearing, and less than seven days intervene between the last publica- tion and the day of hearing 41 . The $1.00 charge for ex- penses cannot be collected until after the publication of the tax list 42 . If the decree of sale omits this charge, or any portion of it, the auditor general cannot thereafter add it to the sum to be paid 48 . Statutory Provisions. C. L. 3887, Tax Law, 64, provides for printing the order and petition for distribution where there is no newspaper published in the county. 37. Wilkins v. Keith, 121 64; Gurd v. Auditor General, Mich. 66; Mann v. Carson, 120 122 Mich. 151. Mich. 631,636; Watts v. Bublitz, 41. Munroe v. Winegar, 183 99 Mich. 586, 588. Mich. 309. 38. Garner v. Wallace, 118 42. Auditor General v. Mc- Mich. 387; Youngs v. Povey, Laulin, 83 Mich. 352, under law 127 Mich. 297. of 1889. In Sayers v. O'Connor, 39. Vesscher v. Ottawa 124 Mich. 256 (law of 1893), it Judge, 116 Mich. 666. is held that 70 cts. per descrip- 40. Schaale v. Wasey, 70 tion can be collected, although Mich. 414, 419; Graham v. King, the charge for advertising was 50 Mo. 22; Auditor General v. only 40 cts. Hutchinson, 113 Mich. 245, 249; 43. Warren v. Auditor Gen- State v. Mayor, etc., 14 L. R. A. eral, 131 Mich. 263; 559 of Act 385 THE LAW OF TAXATION 538 C. L. 3889, Tax Law, 66, as amended in 1899, provides: "The auditor general shall cause a copy of such order and a copy of such petition to be published at least once in each week for four 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. Said order and petition shall both be pub- lished in the same newspaper, the order immediately preceeding the petition. Provided, In such petition it shall be sufficient to print against each parcel the 'amount of taxes,' 'interest/ 'charges,' 'total' due on each. *' * *" 385. Proof of Publication. The notice provided by statute, given by publication only, is sufficient and confers jurisdiction upon the court 44 . A printer or publisher of the paper may make the affidavit ; and the fact that he makes the affidavit is evidence of his knowl- edge of the publishing without a recital that he knows the facts 45 . In the absence of a proper affidavit of publication, the court acquires no jurisdiction and the decree and sale are void. The healing act does not apply to this affidavit and it cannot be supplied by parol proof 46 . Where the affidavit 262 of Public Acts of 1899, pro- Mann, 118 Mich. 201. vides a charge of $1.00 on each 45. Muirhead v. Sands, 111 description for each year the Mich. 487, 494. lands are delinquent. A portion 46. Benedict v. Auditor Gen- of this was omitted from the eral, 104 Mich. 267, 273; Me- decree. Fadden v. Brady, 120 Mich. 699; 44. See Substituted service. In Featherly v. Hoffman, 117 C. L. 3889 Tax Law 66, re- Mich. 42, only the order and quires the proof of publication notice was pinned to the affi- to be filed with the clerk before davit, but not a list of the any final order is made. In re lands. This was held a juris- Wiley, 89 Mich. 58; Hall v. dictional defect. 539 FORECLOSURE OF TAX LIEN 385 was not attached to the printed notice, but the printed notice was found in the files, the affidavit will be presumed to refer to that notice 47 . The decree will be valid if a proper affi- davit is filed at any time prior to its entry, though after the time set for the hearing 48 . An affidavit is sufficient which states the first and last times of publication, and that it was published once each week 40 . Where the affidavit refers to the "annexed notice," which annexed printed slip contained a copy of the order, it will be deemed to include the order also 50 . The absence of the affidavit from the files and the lack of calendar entries showing the filing of this and other papers may be explained by parol proofs in a collateral at- tack, and from recitals in the decree 51 . An affidavit is good when properly acknowledged before a notary public though not signed by the affiant 52 . The fact that the newspaper i one of general circulation need not appear in the affidavit, if such fact appears in the other proceedings, such as in the designation of the newspaper, or in an order of the court 63 . The fact that after a proper affidavit has been filed it was removed from the clerk's office and inserted in the tax record, does not avoid the decree 54 . An affidavit which does not nx the time of publication closer than 70 days to the hearing, not specifying any dates when it was published, is void 55 . Where two affidavits are filed, they may both be considered together in order to determine their sufficiency 58 . 47. Mann v. Carson, 120 v. Mayhue, 40 Mich. 196; Mich. 631, 634. Bloomindale v. Chittendcn, 75 48. Church v. Nester, 126 Mich. 305. Mich. 547. 53. Wynkoop v. Circuit 49. Garner v. Wallace, 118 Judge, 113 Mich. 381, 383. Mich. 387. 54. Brooks v. Auditor Gen- 50. Spaulding v. O'Connor, eral. 119 Mich. 329. 119 Mich. 45. 55. McFadden v. Brady, 120 51. Hoffman v. Pack Woods Mich. 696. & Co., 123 Mich. 74. 56. Nester v. Church, 121 52. Wynkoop v. Circuit Mich. 81. Judge, 113 Mich. 381; Merrick 386 THE LAW OF TAXATION 540 386. Objections or Answer to Petition. The answer must set forth the objections specifically; and if fraud is alleged, it must be particularly described 57 . It is in the discretion of the court to allow the original objec- tions to be made more specific, which discretion the appellate court will not generally review 58 . But an abuse of discre- tion in refusing to permit an amendment will be reviewed. The ordinary chancery practice as to amendments prevails in these cases 59 . The fact that the right of way of a railroad company is included in a description of land is not such an error as will vitiate a sale. It would seem that it could be amended 60 . Failure to include certain lands in his petition the succeeding year after a petition had been dismissed, is immaterial. The lien is not barred, thought there may have been a time when there was no provision for its enforce- ment 61 . In these proceedings, the fact that irregularities may be discovered in the proceedings furnishes no obstacle to enforcing the state's lien for taxes equitably in the state, or chargeable to the land sought to be made subject to state lien, provided there is enough in the proceedings to show that the levy of the tax is authorized 62 . Statutory Provision. C. L. 3889, as amended in 1809, Tax Law, 66: " * * * Any person having any interest in the lands or any portion thereof included or referred to in 57. Auditor General v. Stiles, 59. Auditor General v. Jen- 83 Mich. 460. kinson, 90 Mich. 526. 58. Baptist Church v. 60. Flint Land Co. v. God- Roberts, 120 Mich. 704; In kin, 136 Mich. 668; Smith v. Auditor General v. Chandler, Auditor General, 138 Mich. 582. 108 Mich. 569, it is held that 61. Auditor General v. Car- Act 162 of Public Acts of 1895, penter, 138 Mich. 669; Croskery requiring a copy of the answer v. Busch, 116 Mich. 288. to be served upon the prosecut- 62. Auditor General v. Nor- ing attorney, and not apply to rington, 140 Mich. 427. pending proceedings. 541 FORECLOSURE OF TAX LIEN 387, 388 said petition desiring to contest the validity of any tax shall file in writing his objections thereto with the clerk of the county in which said lands are advertised for sale and serve a copy thereof on the prosecuting at- torney of the county, on or before the day fixed in said notice for the hearing of such petition, and shall not be allowed to make any objections not therein specified. If on the day fixed in such notice for the hearing of such petition or on the day following that day, it shall be made to appear to the court that any person has been prevented from filing his objections to any tax without any fault on his part, such further time may be granted for that purpose as may seem proper, not exceeding five days. * * * " 387. Order Pro Confesso. The omission to enter this order before the decree of sale is a mere irregularity, and will not avoid the sale 83 . A pro confesso decree is as binding upon all questions involved as though the decree was entered after contest 84 . 388. Jurisdiction of Court. The statute clothes the court of chancery with general jurisdiction over these proceedings. It does not lose juris- diction by the failure of any officer to perform the acts im- posed upon him within the time fixed by law, unless the tax payer is deprived of some right, or unless the law, by nega- tive language, prohibits the doing of the act at any other time. It should clearly appear that the act was mandatory ; otherwise it will be held directory. If the tax payer is not 63. Jenkinson v. Auditor 84. Harrington v. Dickinson, General, 104 Mich. 34, 37; 15 L. N. 996. Hooker v. Bond, 118 Mich. 255. 388 THE LAW OF TAXATION 542 injured by the failure of the officer to act within the time prescribed, the failure does not render the decree and sale void. "The fixing of an exact time for the doing of an act is only directory, when it is not fixed for the purpose of giving the party a hearing, or for any other purpose im- portant to him" 65 . The filing of a decree later than the time fixed in the statute does not oust the court of jurisdiction. Inasmuch as the proceeding is one in a court of general jur- isdiction, it would require very precise and prohibitory lan- guage in the statute in order to withold from that court the ordinary functions and power of such a tribunal, among which is not only the right, but the duty, of giving such full consideration to all questions presented as its judgment de- termines necessary. No such prohibitory language is found. The purposes and intention of the act are the collection of taxes, but only of such taxes as ought to be collected, and judicial determination is invoked to determine what taxes are justly due; and that the court takes time for the exam- ination and consideration of this question does not oust it of jurisdiction 66 . Therefore, it follows that the sale may be had in less than ten days after entering the decree 67 . In order, however, to confer jurisdiction, it must appear that the tax payer was properly brought before the court. If he should have been served with subpoena, and was not, or some other juridictional act is omitted, the decree and sale thereunder will be void 68 . Jurisdictional facts, however, cannot rest in parol, to be proven in one'case and disproved, perhaps, in another. The record must be complete in 65. Hooker v. Bond, 118 Mich. 264, 267; Hooker v. Bond, Mich. 255, 257. 118 Mich. 255. 66. Maish v. Arizona, 164 68. Mann v. Carson, 120 U. S. 599. Mich. 631; In re Wiley, 89 67. Barnum v. Barnes, 118 Mich. 58. FORECLOSURE OF TAX LIE N itself 60 . Under the statute, the filing of the petition by the auditor general together with proof of its proper publication, confers jurisdiction upon the court; and the failure of the collector to make a timely return does not affect the jurisdic- tion nor avoid a tax lien. The law proceeds upon the theory of the existence of a claim upon behalf of the state against the property owner for taxes which have not been paid, and cites him into court to answer a bill to enforce this claim against the property taxed. It is not a sufficient answer for him to show that the treasurer would have been a trespasser had he seized personal property, or that he had not demanded payment, or that it might have been collected had he been diligent or brought an action, all of which, perhaps, are permitted, and possibly directed oy law. In all of these things should be proved, the fact would remain that the tax was due and unpaid 70 . 389. Hearing on Petition and Entry of Decree. The hearing upon the petition cannot be had in less than five days after the time fixed in the published notice. This being a trial based upon substituted service, the decree is void if the statutory requirements are not followed ; as where the court adjourn sine die in less than five days after the time fixed 71 . But it would appear that the petition might be heard at a special term thereafter, appointed for the hearing of tax cases 72 . The decree is valid if entered on the last day of the term, when more than five days intervenes between 69. Watts v. Bublitz, 99 Youngs v. Clark. 120 Mich. Mich. 586, 589. 528; Aztec Copper Co. v. 70. Conlev v. McMillan, 120 Auditor General, 128 Mich. 615; Mich. 694, 696; Auditor Gen- McGinley v. Calumet, etc.. eral v. Sparrow, 116 Mich. 574. Mining Co., 121 Mich. 88; Platz 71. C. L. 83889; See 8386, v. Englehardt, 138 Mich. 485. supra; Wait v. McMillan, 121 72. Roberts v. Loxley, 121 Mich. 95; Peninsular Savings Mich. 63. Bank v. Ward, 118 Mich. 87, 93; 389 THE LAW OF TAXATION 544 that time and the day originally fixed for the hearing 73 . When the court adjourns from day to day for five days after the day set for the hearing, and then enters a decree, the decree will be valid 74 . But, although more than five days elapsed, yet, if there were only two court days between the day set for the hearing and the entry of the decree, the decree will be void 75 . The tax law of 1899 provided that if the petition was not heard on the day fixed for the hearing, it should stand continued from day to day during the term; and that if no decree was granted at that term, the auditor general should file a new petition 76 . Under this provision, the court lost jurisdiction at the end of the term and could not thereafter hear that petition at a succeeding term 77 . Where the decree is dated the day of the hearing, but not presented until five days thereafter, and the court was in session each day, it will be valid 78 . Where the decree is entered within five days from the day set for hearing, but the court remains in session for five days from such date, it is not a fatal irregu- larity 79 . When the decree is entered in vacation, without notice, it will be reopened on a petition seasonably made 80 . 73. Allen v. Cowley, 128 76. 59, Act 195, Public Acts Mich. 530; Wabs. Lt. Co. v. of 1889. Davis, 141 Mich. 389. . 77. Muirhead v. Bergland, 74. Gates v. Johnson, 121 111 Mich. 655. Mich. 663; In Brown v. Hough- 78. Wolverine Land Co. v. ton, etc., Co., 123 Mich. 117, the Davis, 141 Mich. 187. court continued in session four 79. Godell v. Auditor Gen- days after the time fixed, and eral. 143 Mich. 240, construing then entered a decree on a sub- 62 and 66. * sequent adjourn day. Held, 80. Hoffman v. Flint Land valid. Brown v. Napper, 125 Co., 144 Mich. 564. In Temple Mich. 117. v. Preston, 150 Mich. 486, the 75. In Miller v. Brown, 122 time was entered in vacation, Mich. 547, the hearing was set four days after notice of hear- for Sept. 30; court then ad- ing. NO one having sought to journed to Sept. 30th, and then contest the decree, it was held to Oct. 4th, when decree was valid. entered. 545 FORECLOSURE OF TAX LIEN 390 390. Decree. General Effect. The proceedings in the chancery court in ordering a sale of lands for taxes are not within its ordinary jurisdiction. Such jurisdiction is special and statutory, and must be strictly confined to the limits of the statute conferring it. Prior to 1882 the court of chancery had no power to decree what lands should be sold for taxes, or to prescribe the manner and time of sale. The only power now possessed by the court is that conferred by the statute. Therefore, when the statute provides upon what grounds a decree or sale may be set aside, whether by the court or by the auditor general, it may be done notwithstanding the decree of the chancery court, since the jurisdiction of the chancery in these matters is special and limited, and within the statutory limits, within the control of the auditor general 81 . While a stranger to the judgment may, if injuriously affected thereby, collaterally impeach such judgment by showing that the court had no jurisidiction of the person of the defendant in such judg- ment, or of the subject matter, or that it was obtained by fraud or collusion between the parties to it, yet, where there is jurisdiction of the person and the subject matter, and the judgment is not the result of fraud and collusion between the parties to it, it is material to establish only the fact of such judgment and those legal consequences which result from the fact, and the record must be regarded as conclusive even as to strangers. The object of these rules is to give stability and security to judgments, decrees and sentences, when made by courts having jurisdiction of the person and the subject matter. They are therefore founded in, and sup- ported by, a sound public policy, which demands of the court 81. See Ejectment, 5419. 123; Connecticut, etc., Ins. Co. Wood v. Bigelow, 115 Mich. v. Wood, 115 Mich. 444, 452. (35) 391 THE LAW OF TAXATION 546 an inflexible adherence to them 82 . In a court of limited jurisdiction in regard to property, if the alleged value is within the limits, the court will have jurisdiction, although the actual value may exceed the limit; and the court may determine that the value is too great, but after that fact is determined, the court simply loses jurisdiction to proceed further. It does not lose it from the beginning, so as to make all parties trespassers, as it would if its jurisdiction depended upon the fact of value. Therefore, where the jurisdictional defect does not appear upon the face of the record, it must be concluded, not that the court has jurisdiction of the sub- ject matter, but that the assumption of such jurisdiction and the rendition of judgment, although under a mistake of fact, involve the finding that the necessary facts exist to give jurisdiction, as conclusively as though the issue were express- ly made. In such a case the decree cannot be assailed col- laterally by showing that the court was mistaken in the facta upon which it based decree. In other words, jurisdiction in the court of the subject matter always depends upon the allegations, and never upon the facts 83 ; and a judgment by default bars the parties as conclusively, collaterally as though they had framed issues, and had a trial, and been defeated 84 . 391. Decree. Particulars. Where, however, the court has obtained jurisdiction to hear the tax proceedings, all matters, up to and including the rendition of the decree, are foreclosed, and conclusive upon all parties and cannot be collaterally attacked any more 82. See Collateral attack of Lewis, 109 Ind. 62. decree. Haven v. Owen, 121 83. Peninsular Savings Bank Mich. 51, 52; Koren v. Roern- v. Ward, 118 Mich. 87, 97. held, 7 111. App. 646; Allured v. 84. Peninsular Savings Bank Valler, 112 Mich. 357; Miller v. v. Ward, 118 Mich. 97, 107; Smith, 115 Mich. 427; Philips v. Goegel v. Iffla, 48 Hun. 21. .". 1 ; FORECLOSURE OF TAX LIEN ? ''>'> 1 than any other decree 85 . The illegality of the taxes or other defects prior to the decree cannot thereafter be raised 86 . The decree cannot thereafter be opened or set aside on petition except for the statutory reasons, or lack of jurisdiction 87 . The proceeding is essentially one iw rent against the prop- erty. No personal decree can be entered against the delinquent tax payer, whether that term applies to the owner of the lands when assessed or to the owner at the time of filing the petition 88 . The decree forecloses all objections that might have been made ; and they cannot thereafter be made on appeal 89 . A variance in the date between the original decree and the certified copy attached to the tax record is not fatal to the proceedings 90 . It is sufficient where the decree is countersigned by the "Register" instead of by the county clerk 91 . A decree of sale against several platted lots as one description is such a determination that the description is proper that it cannot be reviewed on petition 92 . The amounts fixed as charges upon the land must be entered in the tax 85. In re Wiley 89 Mich. 58; Mich. 663; Burns v. Ford, 124 Cole v. Shelp, 98 Mich. 56; Mich. 274; Spaulding v. O'Con- Hilton v .Dumphey, 113 Mich, nor, 119 Mich. 45. 48; Benedict 241. v. Auditor General, 104 Mich. 86. Watts v. Bublitz, 99 269; Brooks v. Auditor Gen- Mich. 586; Auditor General v. eral, 119 Mich. 329, holding that Griffin, 140 Mich.' 427; Hall v. the fact that the decree is not Mann, 118 Mich. 201, 204; enrolled does not change the Auditor General v. Sparrow, 116 rule; Shefferly v. Auditor Gen- Mich. 585; Muirhead v. Sands, eral, 120 Mich. 455; Tromble v. ill Mich. 487; Auditor General Hoffman, 130 Mich. 676. v. Hutchinson. 113 Mich. 245; 88. Auditor General v. Stiles, Sayers v. O'Conner, 124 Mich. 83 Mich. 460. 256, holding an excess of tax 89. Auditor General v. Maier, barred; Berkey v. Burchard, 119 95 Mich. 127. Mich. 101 ; Shelden v. Marion 90. Burns v. Ford, 124 Mich. Twp., 101 Mich. 256: Wilkin v. 274, 277. Keith, 121 Mich. 66; Kneeland v. 51. Mersereau v. Miller, 112 Hull, 110 Mich, r.fi: Ball v. Ridge Mich. 103. Copper Co., 118 Mich. 7, 10. 92. Kneeland v. Hull, 116 87. Nester v. Church. 121 Mich. 55. Mich. 81; Gates v. Johnson, 121 391 THE LAW OF TAXATION 548 record before it leaves the control of the court. If the amounts are afterwards placed therein, the decree will be void, and a sale thereunder set aside upon petition 93 . So, the decree is void if it have no dollar mark or signs 94 . The enrollment of the decree is not a necessary requisite to the sale of the land 95 , and the entitling the decree wherein the state appears as complainant is harmless 96 . The decree as recorded need not contain the descriptions of land ordered sold. The statute prescribes the form and clearly indicates that the tax record, with its entries, shall be considered a part of the decree by reference. It was not intended that the record or any part of it should be recorded 97 . The omission of the clerk to record a decree properly signed will not in- validate the sale 98 . Under the Tax Law of 1889, the state was not liable for costs to a defendant in a tax case ; where one owner has several parcels of lands returned, the sheriff cannot charge fees for each parcel as part of the legal costs 99 . Where a tax proceeding is appealed to the supreme court, and affirmed, the decree of the supreme court need not specify the taxes, but may designate them by reference to the decree and tax record of the lower court 1 . Describing land 93. Morgan v. Tweedle, 119 v. Peters, 118 Mich. 45; Hall v. Mich. 350; Millard v. Truax, 99 Mann, 118 Mich. 201; Wilkin v. Mich. 157; Giddings v. Giddings, Keith, 121" Mich. 66, 74; Hooker 70 la. 486; Easterling v. State, v. Bond, 118 Mich. 255. 35 Mass. 210; First Baptist 96. Muirhead v. Sands, 111 Church v. Roberts, 120 Mich. Mich. 487. 704; Wilkin v. Keith, 121 Mich. 97. Barnum v. Barnes, 118 66. 70; Case v. Skinner, 128 Mich. 264, 266. Mich. 208, where no amounts 98. Hoffman v. Pack Woods were filled in. & Co., 123 Mich. 74; Hooker v. 94. Millard v. Truax, 99 Bond, 118 Mich. 255; Burns v. Mich. 157; Nowlen v. Hall, 128 Ford, 124 Mich. 274; Gates v. Mich. 274, 278. Johnson, 121 Mich. 663, 665. 95. In Barnum v. Barnes, 99. Auditor General v. Baker, 118 Mich. 264, 267, it is held 84 Mich. 113; Sherman v. that 2 H. S. 6648-9, C. L. Sanilac Board, 84 Mich. 108. 463-4, do not apply to enroll- 1. Newton v. Auditor Gen- ing decree before sale. Youngs eral, 131 Mich. 547. ." I '.' FORECLOSURE OF TAX LIEN as being in an incorporated city, but omitting the township it is in, is harmless 2 . Not exempting a railroad right of way will not avoid the decree as to the land not within the right of way 3 . The omission of the dollar mark, or something to indicate what the figures in the decree mean, is fatal to the proceeding. See 377, supra. Statutory Provisions. C. L. 3889, as amended in 1899, Tax Law, 66; * * The court shall give precedence to the hearing of such petition over all other business shall examine, con- sider and determine the matters therein stated and objections made, in a summary manner without other pleadings, and make final decree thereon as the right of the case may be. The taxes specified in the petition shall be presumed to be legal and a decree be made there- for unless the contrary is proved. * * * * If the lands of two or more persons have been assessed together, the court may, if practicable, separate the same and ap- portion to each parcel its just proportion of the taxes, interest and charges. If any tax shall be found illegal, such part shall be set aside and the remaining tax shall be decreed valid. The total amount of taxes, interest and charges, as fixed by the court, shall be entered by the register of the court opposite each parcel of land in the column of said record under the heading 'Amount decreed against lands.' If the court shall make any order setting aside the taxes on any parcel of land, or any part thereof, or any special order relating to any particular parcel of land, or taxes thereon, a brief entry 2. Smith v. Auditor General, 136 Mich. 668; Smith v. Auditor 138 Mich. 582. General, 138 Mich. 582. 3. Flint Land Co. v. Kodkin, 392, 393 THE LAW OF TAXATION 550 of said order shall be made upon the record opposite such land or tax, which shall be signed by the judge of the court, either by his full name or initials, and such entry shall have the same effect as if made and entered as a part of a final decree. At least ten days prior to the time fixed for the sale of such lands, the court shall make a final decree in favor of the State of Michigan for such taxes, interest and charges as shall be valid, * * * The court may decree costs against persons contesting any tax as may be equitable, if the tax, or any part thereof which remains unpaid be adjudged valid." C: L. 3890, as amended in 1899, Tax Law, 67, gives the form of the decree; provides that execution may issue against any contestant for costs; for con- tinuing the hearing on the petition, and entering decrees from time to time as to such portions as are disposed of; and for the filing of a new petition as to such lands as are not disposed of. 392. Decree. Evidence of The entry of a decree in the chancery record with the name of the circuit judge attached, and countersigned by the register of the court, is sufficient evidence that a decree was made and filed, though no decree is found, nor a calendar entry of one 4 . 393. Appeal from Decree. Where no case is settled, an appeal will not be lost but the cause will stand for trial upon the pleadings. The pre- sumption will be that there was evidence below to support 4. Spaulding v. O'Connor, 119 Mich. 45. 551 FORECLOSURE OF TAX LIEN :J'J-t the decree. The claim of appeal, and appeal bond, must be made and furnished within the twenty days required by statute, or the appeal will be dismissed 5 . Objections, not raised in the court below, will be heard on appeal; but in a meritorious case, where a valid defense has been overlooked, the supreme court may remand the case with leave to amend the pleadings 6 . Ex partc affidavits used in settling the case cannot be considered on an appeal from the decree 7 . The auditor general does not abandon his petition because by mistake an employe had charged the taxes back to the county 8 . An invalid decree should be annulled by reversal instead of being permitted to stand, and both parties placed as they were before the decree was entered 9 . An appeal, under 70, from the decree of sale, is a general chancery appeal, and no bond is required under 140 10 . $394. Report of Sale. The statute contemplates that the fact and date of sale shall be verified by the report of the county treasurer. The lack of such report will invalidate a sale, and a bill will lie against the purchaser and auditor general to quiet title 11 . Although the treasurer may not have offered the land for sale a second time before bidding it off to the state, yet if the land owner who knows of the decree of sale, fails to object 5. Carney v. Baldwin, 95 7. Aztec Copper Co. v. Mich. 442. Auditor General, 128 Mich. 615. 6. Hall v. Mann, 118 Mich. 8. Auditor General v. Kanaar, 201, where a defense of non- 114 Mich. 602. payment of tax liens had not 9. State v. Eddy, 58 Mich. been made. Hooker v. Bond, 118 318. Mich. 255, where fact that a 10. Hayward v. O'Connor, certified copy of the decree had 142 Mich. 230. not been attached to the tax 11. Millard v. Truax, 99 record was not clearly shown Mich. 157; McFadden v. Brady, in the petition or raised in the 120 Mich. 699. lower court. 395 THE LAW OF TAXATION 552 before the confirmation of the sale, he cannot thereafter object, though such omission is sufficient to avoid confirm- ation if made seasonably 12 . The statute contemplates that the report shall be filed with the county clerk and remain in his office. When so filed, it operates as a notice to all persons concerned. It cannot be regarded as having thus been filed when attached to a record which the statute says shall re- main with the county treasurer, although the filing of the report is chronologically a condition subsequent. A com- pliance with the statutory requirements is essential to the validity of the sale, and the report is evidence of such com- pliance. For the purpose of giving effect to the deed, and vesting the title, the filing of the report must be treated as a condition precedent. The purchaser is bound to see that the law has been complied with ; and the report cannot, after the period of redemption has expired, be amended 13 . The report is sufficient if it shows that the lands were offered on the first day of sale, referring to the tax record for partic- ulars. It need not affirmatively appear that the lands were offered from day to day so far as collateral attack is con- cerned 14 . Parol proof is admissible to show that a report was in fact made though none can be found and there is no entry of one in the calendar 15 . 395. Report of Sale to Auditor General. This report will be presumed to have been made; but if not, it is an irregularity that will not avoid the sale 16 . A report made prematurely, and not showing that the lands 12. Hilton v. Dumphey, 113 Mich. 264, 267; Detroit, etc., Mich. 241. Ins. Co. v. Wood, 118 Mich. 31. 13. Jenkinson v. Auditor 15. Hoffman v. Pack Woods General, 104 Mich. 34, 37. & Co., 123 Mich. 74. 14. Jenison v. Conklin, 114 16. C. L. 3893. Church v. Mich. 9; Barnum v. Barnes, 118 Nester, 126 Mich. 547. 553 FORECLOSURE OF TAX LIEN 396, 397 were offered in their order, does not constitute a juris- dictional defect 17 . Ten days after the confirmation is a reasonable time in which to make this report 18 . ^396. Order of Confirmation. Under the provisions of the statute that all sales shall stand confirmed unless objections are filed thereto within eight days after the time limited for filing the report, without the entry of an order, it is unnecessary to enter any final order of confirmation. After the expiration of the eight days, the sale will not be set aside except for the statutory reasons or jurisdictional defects 19 . 397. Certificate of Error. The auditor general is authorized to issue a certificate of error for statutory reasons, setting aside, if necessary, a decree of the chancery court 20 . Statutory Provision. C. L. 3921, 98 of Act 154 of Public Acts of 1895, provides that if the auditor general shall discover, before a conveyance of said land is executed and delivered : "First. That the land so sold was not subject to 17. Burns v. Ford, 124 Mich. 106 Mich. 644; Jakabowski v. 274. Auditor General, 144 Mich. 46, 18. Detroit, etc., Ins. Co. v. when it is held that the six Wood, 118 Mich. 31, 37; In months limitation provided in Youngs v. Peters, 118 Mich. 45, J143 of the tax law does not the time was 12 days. run against the owner of an 19. C. L. 3893; Conley v. unrecorded land contract who McMillan, 120 Mich. 694, 697; has paid the taxes in question, Hilton v. Dumphey, 113 Mich, and received no notice of tax 241; Dumphey v. Hilton. 121 purchase. In such a case the Mich. 315. Auditor General will be com- 20. Wood v. Bigelow, 115 pelled to issue a certificate of Mich. 123, where the tax had error. been paid. Bump v. Jepson, 397 THE LAW OF TAXATION 554 taxation at the date of the assessment of the taxes for which it was sold ; or Second. That the taxes had been paid to the proper officer within the time limited by law for the payment or redemption thereof, or Third. That such sale was in contravention of any of the provisions of this act; or Fourth. That a certificate that no taxes were charged against said lands has been given by the proper officer, within the time limited by law for the payment or redemption thereof, the auditor general shall with- hold a conveyance of such lands * * *. If the discovery is not made until after the con- veyance has been executed and delivered, a certificate of error may be issued in proper form for record." In so doing, he is not limited as to the time in which he may act. This provision is given a liberal construction to the end that a tax payer justly entitled to relief may not be cut off from all remedy 21 . The action of the auditor gen- eral is not discretionary and will be enforced by mandamus when a party in interest brings himself within the terms of the statute 22 . Where the legality of the sale is involved in a chancery proceeding, the court will not issue a mandamus to compel the issuance of a writ of error ; nor will the court examine to see whether the same relief prayed for can be 21. Hand v. Auditor Gen- a reassessment of the tax, eral, 112 Mich. 597. In Knee- while in the tax was not re- land v. Wood, 117 Mich. 174, assessed but was returned and 176, where the township treas- the land sold tnereon. urer had reported to the owner 22. Hubbard v. Auditor Gen- that there were no taxes eral, 120 Mich. 505, the tax deed assessed on his piece, being in is held void because the tax title legal effect a payment. In purchaser did not pay the taxes Youngs v. Auditor General, 118 of 1896, their application for Mich. 550, where the owner was purchase having been corn- misled by the council ordering pleted Dec. 2, 1896. 555 FORECLOSURE OF TAX LIEN 397 granted in the mandamus proceedings 23 . The certificate of error, if a judicial act, is one of a limited tribunal, whose jurisdiction should, under ordinary rules, appear upon the face of the proceedings; and any certificate which shows affirmatively that it was issued upon a supposed error or defect, which clearly was not such as matter of law, should be treated as void, and will not affect the deed it attempts to cancel. It will not be presumed to be issued for other reasons than those stated 24 . The auditor general is limited, in grant- ing this certificate, to the reasons mentioned in the statute; and he cannot cancel a deed of sale, or certificate, for irreg- ularities occurring prior to the decree 25 . He may, however, cancel the sale, after the decree, when it appears that the tax was paid or offered 28 , or that the court did not have juris- diction 27 . A petition will also lie to set aside the decree of sale where the tax payer was misled by such an erroneous statement 2 *. The payment of the tax, or the erroneous certifi- cate mentioned in the statute, cannot be set up as a defense in an action to recover the premises under the tax deed, but must be made available either by an application to the auditor general to issue a certificate of error, or in a motion 23. Smith v. Auditor Gen- taxes, the Auditor General may eral, 15 L. N. 65, 151 Mich. 622. cancel the deed more than a 24. Vetterly v. McNeal, 129 year after it issued; Hay ward Mich. 507, 512. v. Auditor General, 147 Mich. 25. Cole v. Auditor General, 591. 132 Mich. 262, to this extent 27. Rumsey v. Griffin, 138 over-ruling Gurd v. Auditor Mich. 413. General, 122 Mich. 151; Flint 28. Hough v. Auditor Gen- Land Co. v. Auditor General, eral, 116 Mich. 663; Hoffman v. 133 Mich. 542. Auditor General, 136 Mich. 689; 26. Young v. Auditor General, Hayward v. O'Connor, 145 118 Mich. 550; Hand v. Auditor Mich. 52. In Youngs v. Auditor General, 112 Mich. 597; Knee- General, 118 Mich. 550, and land v. Wood, 117 Mich. 174, Kneeland v. Hull, 118 Mich. 56, where a tax receipt shows only 90 days time was granted in county, state, highway and which to obtain the certificate, school taxes, but no village 397 THE LAW OF TAXATION 556 to set aside the decree, under the statute. The court, where an action of ejectment or other proceedings are pending, may grant time in which to make such application 29 . Where a deed is illegally given to one applicant because of the non- payment of delinquent taxes, and an application is made by another party who pays such taxes, a bill will lie to set aside the first deed and compel the issuing of a deed on the last application 30 . Where the owner of the original title obtains a deed under such circumstances however, his payment will be deemed a payment and redemption of the tax, and a subsequent applicant will not be entitled to a deed 31 . An invalid decree setting aside taxes will be a sufficient excuse for not paying the taxes set aside, and will be treated by the court as equivalent to payment 32 . As to what certificates or representations constitute a payment, see 156, supra. The fact that two different persons own a tract assessed and sold as one, affords no grounds for setting the sale aside. Either owner may redeem his interest any time before May 1st, following the sale. Thereafter, he must redeem the entire tract 33 . The auditor general has no authority to issue a certificate of error on, or cancel a sale of, state homestead lands. His authority in this respect is confined to state tax lands 34 . While the decree cannot be collaterally attacked, except for want of jurisdiction of the court, the original owner may defeat an action based upon a tax deed by the production of this certificate of error 35 . The auditor gen- 29. Mann v. Carson, 120 33. Kennedy v. Auditor Gen- Mich. 631, 638; Northrup v. eral, 134 Mich. 534. Maneka, 126 Mich. 550. 34. State Land Commission- 30. Wilkin v. Keith, 121 er v. Auditor General, 131 Mich. Mich. 66, 77. 147; Jackson, Lansing & S. R. 31. Hoffman v. Auditor Gen- Co. v. Solomon Lumber Co., eral, 136 Mich. 689, 697. 146 Mich. 204. 32. Thomas v. Moore, 120 35. See "Ejectment," 419; Mich. 535. "Collateral attack," 453. 557 FORECLOSURE OF TAX LIEN 398 eral will not be compelled to cancel a sale where a portion of the land was not locally assessable, but the owner does not offer to pay any portion of the tax 38 . 398. Setting Aside Sale. By the Court. A sale may be set aside by the court within one year for the reasons specified in the statute 37 . All objections that might be made prior to the decree are foreclosed 38 . And this remedy by the court is concurrent with remedy provid- ing for action by the auditor general 89 , under the provision for setting aside a sale because the taxes were paid. The court will set aside a deed when it appears that the owner was prevented from paying his taxes by the mistake, fault or wrong of the collecting officer, as where the township treas- urer informed the owner that no taxes were assessed on his premises 40 , or where the land owner relied upon an invalid decree setting aside the taxes 41 . Instead of a bill to quiet title, or other action at law, an application should be made to the court under the statute 42 . On a petition, a decree may be shown to be void, and set aside, because the amounts were filled in after the record passed out of the control of the court; but a condition may be imposed that all taxes and 36. Gd. Rapids I. R. Co. v. terms as shall be just. Auditor General, 144 Mich. 77. 38. See Decree 390; Bloudin 37. C. L. 83893, 570, Act 206 v. Griffin, 133 Mich. 647. of Public Acts of 1893, provides 39. Kneeland v. Wood, 117 that no sale shall be set aside Mich. 174; Wood v. Bigelow, after confirmation, except in 115 Mich. 123. cases where the taxes were 40. See Payment, 156; Knee- paid, or the property was land v. Wood, 117 Mich. 174; exempt from taxation. In such Carpenter v. Jones, 117 Mich, cases the owner of such lands 91. may move the court at any 41. Thomas v. Moore, 120 time within one year after he Mich. 535. shall have notice of such sale 42. Kneeland v. Hyman, 118 to set the same aside, and the Mich. 56. court may so order upon such 399 THE LAW OF TAXATION 558 charges and interest be paid 43 . After confirmation, the court will not set aside a sale except for jurisdictional defects, or for the statutory reason. If the owner permits the pro- ceedings to proceed to a decree, the question whether the taken to charge the land after the assessment became res land was properly assessed, and whether proper steps were fudicata 44 . Where the decree is entered in vacation, with- out notice, the court does not lose jurisdiction; but the parties in interest may have the decree opened on an appli- cation seasonably made 45 . The owner must file his petition within one year after he has received notice of the sale; it is immaterial how, or from whom he receives such notice 46 . 399. Petition to Court. Laches. Sound public policy and a just regard for the stability of private rights require that the solemn judgments and decrees of courts, affecting the rights of property, shall not be lightly disturbed, nor, without the strongest reason, allowed to be impeached after any considerable length of time, during which the parties have been allowed to rely upon them, and others may have obtained interests on the faith of them, or the evidence by which they might have been sustained has been lost. And if a party to such judgment or decree might, after any considerable period, impeach its validity without showing a proper excuse or reasonable justification for the delay, a general feeling of insecurity and distrust, 43. Morgan v. Tweddle, 119 45. See 391: Keho v. Mich. 350; First Baptist Church Auditor General, 138 Mich. 586; v. Roberts, 120 Mich. 704; Jen- Muirhead v. Sands, 111 Mich, kinson v. Auditor General, 104 495; Smith v. Auditor General, Mich. 35; McGinley v. Calumet, 139 Mich. 582. etc., Mining Co., 121 Mich. 88. 46. Hoffman v. Flint Land 44. Mann v. Carson, 120 Co., 144 Mich. 564. Mich. 631, 638. FORECLOSURE OF TAX LIEN {(Ml very injurious to property and to business, must result. This principle applies to petitions filed more than one year after knowledge of the sale 47 . See page 558. While the owner is barred from bringing his petition based upon the statutory reasons, unless he brings it within the statutory period, he is not barred from bringing his petition after more than a year has elapsed, based upon jurisdictional defects, if he uses dili- gence in so doing; but any delay must be clearly explained or he will have lost his right by laches 48 . Where the peti- tioner has used due diligence, and filed his petition, based upon jurisdictional defects, as soon as he could after dis- covering the facts, the decree will be vacated 49 . $400. Bill of Review. Substantially the same rules apply to a bill of review to set aside a decree of sale, as to a petition. It will not lie to set aside a tax sale after a confirmation of the sale, unless 47. Haywarcl v. O'Connor, 145 Mich. 52. 48. Cook v. Hall, 123 Mich. 378, 384; Owens v. Auditor General, 147 Mich. 683, holding that a delay of 12 years is fatal. Hall v. Miller, 150 Mich. 300, holding that a delay of two years, after notice was fatal. A delay of seven years, after knowledge of the sale, is fatal; McFarlan v. Simpson, 153 Mich. 193. 49. Aztec Copper Co. v. Auditor General, 128 Mich. 615, 618; Benedict v. Auditor Gen- eral. 104 Mich. 271; Spaulding v. O'Connor, 119 Mich. 45, 48. where the petition was filed three years after the decree. McGinley v. Calumet, etc., Co., 121 Mich. 88, where the time must have been three years. Thomas v. Auditor General, 120 Mich. 535. In Bending v. Auditor General, 137 Mich. 500, it is that a decree will not be set aside, even for jurisdictional defects, after an unexplained delay of nearly five years where the rights of third parties had intervened, but that the parties would be left to an original action to determine their rights. In Horton v. Sailing, 15 t^. X. 1114, Mich. , the com- plainant, a stranger to the title, did not discover that a certain tax sale was void for twelve years after the deed had been issued. He then filed a bill to compel the cancelling of the deed in question, and to com- pel the Auditor General to sell the land to him. Held, that he w.i* not estopped from so doing. 401 THE LAW OF TAXATION 560 a total want of jurisdiction to make the sale is shown, or one of the two causes mentioned in the statute exists; and the hearing must be confined to these causes. To say that allowing a bill of review to be filed for one of the causes mentioned in the statute opens the inquiry the same as though it were an original hearing in the tax proceeding, is to render the provisions of the statute nugatory. The legislature evidently proceeded upon the theory that all prop- erty liable to taxation should pay its proportion of taxes; that it was the duty of the owner, and of all persons having an interest therein, as mortgagees or otherwise, to see that the taxes were paid. If there were irregularities, simply, which did not go to the question of whether the property was exempt from taxation, or whether the tax had been paid, or to the jurisdiction of the court, the irregularities must be shown at the hearing upon the petition of the audi- tor general before the tax decree. If this was not attended to, and the sale was afterwards made and confirmed, the sale could be set aside only when it was shown either that the tax had been paid, or the land was exempt from taxa- tion, or, that the lands belonged to infants or other incom- petents 50 . Where a bill of review is dismissed, the lower court should award costs 51 . A bill of review should be filed seasonably. Where petitioner waited for four years after he knew of the sale, his application will be denied, although if made seasonably, there were good grounds for setting the decree aside 52 . 401. Writs of Assistance. The statute provides for the issuing of these writs to put a s purchaser in possession. This proceeding is not a trial of 50. Berkey v. Burchard, 119 Mich. 625. Mich. 101, 104. 52. Brown v. Nopper, 143 51. Phelps v. O'Connor, 137 Mich. 636; see 399, supra. 561 FORECLOSURE OF TAX LJEN j 4<)1 the respondents rights of possession, or of his title to the premises. These questions were involved in the issue upon the auditor general's petition. Upon the filing of the petition for the writ of assistance, the inquiries are : First. Whether the court had jurisdiction to render the decree. Second. Whether all of the steps required by statute have been taken in making the sale, filing the report of sale, etc. Third. Whether the time for redemption has expired. These are the questions which may be determined by the chancery court in the tax proceedings. The provision of the statute for the issuance of a writ of assistance is the means provided by the legislature to enable the court to carry its decree into execution. The calling of a jury to determine questions arising under this application would be but idle ceremony. Where the court of chancery has power to decree, it has power to carry its decree into effec- tual execution. In cases of mortgage foreclosures, it is the general rule that the purchaser of the land sold under the decree is entitled to be put into possession by the court en- tering the decree. To transfer the title and leave the pur- chaser to another suit to obtain possession from a party whose rights have been fully decided by the court, would be useless and circuitous vexation. The object of a writ of assistance is to compel parties who are bound by a decree in foreclosure to give up the possession which the decree and sale under it estop them from further asserting. And any matter set up in defense to a motion for a writ of assist- ance cannot be received to affect the decree determining defendants rights unless the matter goes to the jurisdiction of the court in rendering the decree. There is no distinc- tion between a decree rendered in the foreclosure of a mort- gage and the decree in a tax proceeding, so far as these (86) 401 THE LAW OF TAXATION 562 questions are concerned. One deprives the party of title and right to possession the same as the other; and the rules for the enforcement of a decree in foreclosure proceedings are applicable to the enforcement of a decree in a tax pro- ceeding. The respondent has had his day in court under this equitable proceeding. It is not unconstitutional be- cause of a lack of trial by jury. It is a proceeding in equity instituted by the state to enforce against a parcel of land a lien which it claims for taxes, and a different proceeding altogether from any which was known to our jurisprudence in 1850. It is a new proceeding, and therefore, if jury trial cannot be had in it, that method of trial is not cut off, but is simply not given. There is nothing in the constitution which renders it necessary to provide for jury trial in new cases. The constitutional provision is, "The right of trial by jury shall remain," by which we are to understand merely that it is retained for the cases in which it existed before. It is often said that a court of chancery is not a proper tribunal for the trial of titles to land, which is an erroneous impression. If it were the fact, however, it would be im- material in these cases because in them titles are not tried or disputed 54 . It would seem that the auditor general be made a party to this proceedings so that if the writ is re- fused, he may be compelled to refund the purchase price. If he is not made a party, the state cannot be compelled to 54. Act No. 97 of Public assistance may issue for such Acts of 1897; Ball v. Ridge last mentioned lands. The Copper Co., 118 Mich. 7, 13 ; provisions relative to giving Hooker y. Bond, 118 Mich. 255. notice of purchase at tax sale The giving of a notice of pur- does not apply to any lands chase of delinquent tax lands is sold, or bid in to the state, not required in the case of pur- prior to the 29th day of August, chase of state homestead lands; 1897, see C. L. 3959, as and if necessary, a writ of amended in 1899, tax law, 140. 563 FORECLOSURE OF TAX LIEN 401 reimburse the defeated purchaser, if the writ is not allowed 55 . Upon a petition for this writ the court will not determine the legality of tax sales subsequent to the tax decree upon which the petition is based. In such a case, no writ will issue but all parties will be left to their remedies 5 *. Statutory Provisions. C. L. 3895, Tax Law, 72 provides that the court may, on application, put the purchaser of state tax lands in possession of the premises by a writ of assistance. C. L. 3958, Tax Law, 137, provides: "The cir- cuit court may, on application, put the purchaser of any lands sold under the provisions of this act in possession of the premises by writs of asistance." The statute does not apply to tax sales made before this statute took effect, although the deed may not have been issued until after the act was in force in 1897. The time of the application for the purchase and payment of the money governs in this respect 67 . Where the purchaser obtained a deed prior to the taking effect of this act, but all taxes a lien upon the premises were not paid, the purchase, if deemed a valid purchase at all, will not be considered as made until such taxes were paid, and consequently the purchase would be within the provisions of this act if such taxes were paid after the act took effect 58 . The title of this act is not broad enough to make it a general period of limitations, where the 55. Ball v. Ridge Copper Co.. 57. Flint Land Co. v. Gd. 118 Mich. 7, 15; State Tax Land Rapids Terminal Ry., 147 Mich. Cases, 54 Mich. 367, quoting 627. Judge Cooley; Beck v. Finn, 122 58. Pierpont v. Osmun. 118 Mich. 21. Mich. 472; Eldridge v. Rich- 56. Newton v. Auditor Gen- mond, 120 Mich. 586. eral, 131 Mich. 547. 402 THE LAW OF TAXATION 564 sale is void, in providing that all persons failing to redeem within six months shall be barred thereafter 59 . 402. Writs of Assistance. Notice. The notice required by Act 229 is one of favor to the land owner, by which he is permitted to still save his' land. It is not a harsh proceeding and should not be subject to the same strict rules which are made to govern proceedings by attach- ment and drain proceedings. It is not a notice required in the course of proceedings to divest the owner of his title. It is a favor granted him after he has lost title by which it may be restricted 60 . Whether the notice served was a copy or an original, is of no significance 61 . The statute does not require the service of evidence of the sale or confirmation 62 . The fact that the notice does not exempt the right of way of a railroad company over the premises, does not invalidate the notice 63 . If the notice only describe the land, giving the township and range, but omits the name of the state, it is fatally defective 64 . The statute requiring the service of no- tice, first passed in 1897, Act 227, has no application to lands purchased prior to Aug. 27, 1897. The right of possession, in cases arising from sales made prior to such date, must be determined in an original proceeding 65 . The land owner has six months after the filing with the county clerk of proofs of the required service of notice upon him in which to re- 59. Church v. Smith, 121 63. Flint Land Co. Lt. v. Mich. 97. Godkin, 136 Mich. 668. 60. 143 of Tax Law of 1893, 64. Tucker v. Van Winkle, C. L. 3902; Citizens Savings 142 Mich. 210; Sanborn Co. v. Bank v. Auditor General, 123 Alston, 15 L. N. 531. and an en- Mich. 511. dorsement on the back of the 61. Richardson Lumber Co. notice will not heal it; Curry v. v. Jasspon, 145 Mich. 8. Larke, 153 Mich. 348. 62. Bradley v. Williams, 11 65. Briggs v. Guleck, 143 L. N. 818, 139 Mich. 230. Mich. 457. :.<;;, FORECLOSURE OF TAX LIEN deem. 140, 141, of the Tax Law, C L. 3959, 3960 are contemporaneous, and must be constructed together, as statutes providing for redemption are construed literally 66 . An entry of land under a tax title, without giving the statu- tory notice, is not even an entry under color of right, but is a trespass. A person so entering cannot recover the pur- chase price he paid, nor compensation for his improve- ments 67 . The acceptance in writing, of an offer to com- promise a tax claim, avoids a tax deed. Such an agreement may be set up in defense to the suing out of a writ of as- sistance 68 . Leaving out a decimal point whereby the num- ber of acres in a plat is wrongly stated is not fatal when the plat is correctly named. The amount that was paid for each description that was sold separately, must be stated 89 . The notice is sufficient if it specify the total amount paid, without specifying the years for which the land was sold, but where one owner owes several parcels, the notice should specify the amount paid for each parcel 70 . This decision, however, seems to be modified to the extent that where sev- eral parcels are sold, the notice must show the amount paid for each description each year; and this would seem to be true in the case of a simple description 71 . When the same 66. See 9215, supra; Pike v. 68. Briggs v. Boardman, 135 Richardson, 136 Mich. 414. Mich. 329. 67. Corrigan v. Hinckley, 125 69. Jackson v. Mason, 143 Mich. 125; Huron Land Co. v. Mich. 355. Robarge, 128 Mich. 686; Holmes 70. John Duncan Land & v. Loud, 149 Mich. 410, where Mining Co. v. Rusch, 145 Mich, defendant entered the premises 1; Jackson v. Mason, 143 Mich, before the six months had 355. In Sanborn Co. v. John- expired. Cook Land Co., etc. v. son, 148 Mich. 405, it is held McDonald, 15 L. N. 953, that the court does not acquire Mich. :Fitschen v. Olsen, jurisdiction to issue a writ of 15 L. N. 1010, Mich. , assistance upon a petition based where defendant served the upon a defective notice, notice before the deed was 71. Hayden v. Closser, 153 issued. Mich. 182. 402 THE LAW OF TAXATION 56*6 description of land is sold for several years with other lands, the notice must show the amount of his description for the entire pieces covered by the notice 72 . Statutory Provision. C. L. 3959, as amended by Act 129 of Public Acts of 1909, Tax Law, 140, 141, provides : "No writ of assistance or other process for the possession of any land, the title to which has been obtained under and in pursuance of any tax sale made after the twenty-ninth day of August, in the year of our Lord eighteen hun- dred ninety-seven; or of any sale of state tax lands or state bids made after the said twenty-ninth day of August, eighteen ninety-seven, except where such title shall be obtained under the provisions of section one hundred thirty-one of this act, shall be issued until six months after there shall have been filed with the county clerk of the county where the land is situated, a return by the sheriff of said county showing that he has made personal service of a notice, or proof of substituted service thereof, as hereinafter provided, upon the person or persons appearing by the records in the office of the register of deeds of said county to be the last grantee or grantees in the regular chain of title of such lands, or of any interest therein, at the date of the delivery of such notice to the sheriff for service, and upon the person or persons, if any there be, in the actual open possession of such lands at the date aforesaid, and upon the grantee or grantees under the tax deed issued by the auditor general for the latest year's taxes then appearing of record in said registry of deeds, and upon the mortgagee or mortgagees named in all undischarged recorded mortgages or any assignee 72. Hayden v. Closser, 15 L. N. 618 Mich. 567 FORECLOSURE OF TAX LIEN 402 or assignees thereof of record at the date aforesaid, and upon the holder of record of all undischarged recorded liens, which shall be substantially in the fol- lowing form : To the oumer or oivners of any and all interests in, or liens upon the land herein described: Take notice, that sale has been lawfully made of the follounng described land for unpaid taxes thereon, mid that the undersigned has title thereto under tax deed or deeds issued therefor, and that you are entitled to a reconveyance thereof, at any time liithin six months after return of Service of this notice, upon payment to the undersigned or to the register in chancery of the county in which the lands lie of all stuns paid upon ' such purchase, together tvith one hundred per centum additional thereto, and the fees of the sheriff for the sennce or cost of publication of this notice, to be com- puted as upon personal service of a declaration as com- mencement of suit, and the further sum of five dollars for each description without other additional cost or charges. If payment as aforesaid is not made, the undersigned ivill institute proceedings for possession of the land. Description Amount paid taxes for I (Signed) Place of business "Provided, That if the grantee or grantees, or the person or persons holding the interest in said lands as aforesaid, shall be residents of any county of the state other than the county in which the land is situated, then such return as to such person shall be made by 402 THE LAW OF TAXATION 568 the sheriff of the county where such person or persons reside or may be found : Provided further, That if the person or persons entitled to such notice, or any of them, shall be non-residents of this state, if from the said record aforesaid, or from inquiry, the sheriff can obtain the postoffice address of such person or persons or if said addresses be known to him, he shall either send to such non-resident person or persons a copy of said notice by registered letter, and return the receipt or receipts of the postmaster received for said letter or letters with his return to the county clerk's office, or said sheriff shall cause to be served personally on such person or persons aforesaid a copy of the said notice, and whenever such notice shall be personally served outside of this state proof of such service shall be made by the affidavit of the person who shall serve the same, made before a justice of the peace or notary public and when such affidavit shall ! made outside this state, it shall have attached thereto the certificate of the clerk of the court of record, certifying to the official character of the justice or notary, and the genuineness of his signature to the jurat of the affidavit, and such sheriff shall return the said proof of personal service with his return to the county clerk's office: Provided further, That if any person entitled to notice as here- inbefore provided is dead, or if his estate shall be under control of a trustee or guardian, then and in such case notice as hereinbefore provided may be served upon the exeuctor or administrator of said deceased per- son, or upon his heirs, if there be no executor or ad- ministrator, or upon the trustee or guardian of any incompetent person, with like effect as if served upon the grantee, mortgagee or assignee : Provided further, 569 FORECLOSURE OF TAX LIEN That if the sheriff of the county where any such lands are located shall make a return that after careful in- quiry he is unable to ascertain the whereabouts or the postoffice address of the persons upon whom notice may be served as aforesaid, or any of them, then such notice as is herein provided for shall be published for four successive weeks, which shall be construed to mean four publications once each week, in some news- paper published and circulating in the county where such lands are located, if there is one; and if no such paper is published in such county then publication shall be made in some newspaper published and circulated in an adjoining county, and due proof of publication, by affidavit of the printer or publisher of such news* paper, shall be filed with the county clerk and shall be in lieu of personal service upon the person or persons whose whereabouts or postoffice address cannot be ascertained as aforesaid : Provided further, That such service may be made upon any resident of this state by leaving such notice at his usual place of residence with some member of his family of mature age, and upon any non-resident of this state by delivering such notice to him personally in any county of this state where he may be found, and return thereof shall be made by the sheriff of such county. Service in all cases and return thereof may be made by the under sheriff or any deputy sheriff with like effect as if made by the sheriff. Corporations formed under the laws of this state shall be regarded, for the purposes of this act, as residents of the county in this state where their office for the transaction of business therein is, by their articles, located, and service on such corporations may be made on the president, secretary, treasurer or gen- 402 THE LAW OF TAXATION 570 eral agent of such corporation, or by leaving such notice at the office of such corporation with some per- son in charge of such office. If the sheriff of any county in this state in which the office of any such cor- poration for the transaction of business is, by its arti cles, fixed, shall return that upon careful inquiry he has been unable to find any such office or any president, secretary, treasurer or general agent of such corpora- tion in such county, service of such notice may be made upon such corporation by publication as hereinbefore provided in case of persons whose whereabouts or postoffice address cannot be ascertained; and this pro- vision shall apply as well to corporations whose term of corporate existence has expired as to those whose term of existence has not expired. Foreign corpora- tions doing business in this state and having an agent therein appointed to accept service of process as re- quired or as may be required by the laws of this state, shall be regarded, for the purposes of this act, as resi- dents of the county where such agent resides, and ser- vice on such corporations may be made on such agent, or by registered letter addressed to such corporations at their home office. The sheriff shall, in his return, state the time when such notice was delivered to him for service, and his return shall be prima facie evidence of the facts therein stated. "Section 141. Any person having any estate in such lands or any interest therein, either in fee, for life or for years, or any mortgagee thereof or assignee of any un- discharged mortgage thereon, or the holder of any lien thereon, or any executor, administrator, trustee or guardian of such persons, or any of them, or any per- son in the actual possession of such lands at the time of 571 FORECLOSURE OF TAX LIEN 402 such tax purchase, shall be entitled to receive from the person so claiming under and by virtue of such tax deed, his heirs or assigns at any time within six months after the filing of return of service or the filing of proof of publication of such notice, as hereinbefore provided, a release and quit claim of all right and interest in such land acquired under such tax deed or deeds, upon pay- ment to him or them, or to the register in chancery of the county in which the lands are located, of the amount paid upon such purchase, together with one hundred per centum in addition thereto, and the lawful fees of such personal or substituted service, which fee shall be the same as provided by law for service of subpoenas or for orders of publication or the cost of such service by registered mail, and the further sum of five dollars for each description, without additional cost or charge : Provided, That any person or persons entitled to a re- lease and quit claim under the foregoing provisions of this section, at any time after the issue of tax ,deeds on such lands, or after the purchaser thereof shall be entitled to such tax, deeds, and before service or return thereof as herein provided, shall have the right to re- deem such lands from such sale, by paying to theipur- chaser, or his grantee, or to the register in chancery of the county ity which the lands lie, on the certificate of the auditor general or his deputy, all sums paid as a condition of such purchase, together with one hun- dred 'per centum additional thereto, and the further sum of five dollars for each description. By such pay- ment the tax title and any and all such certificates of sale shall become void and of no effect against the lands to be redeemed. The register in chancery, shall when- ever payment is made to him as provided in this sec- 402 THE LAW OF TAXATION 572 tion, at once notify the owner of the tax title, or of any and all such certificates of sale, of the payment so made, and the owner of the tax title, or of any such certificates of sale, shall forthwith deliver to said register a release and quit 'claim of all rights acquired by him under said tax purchase, running to the persxm making such payment, and shall also deliver to said register,, the tax deed, certificates of purchase, tax re- ceipts, and all other conveyances relating to said tax title or tax interest before he shall be entitled to receive the money paid to said register as herein provided. Upon delivery of such release and quit claim, and of such certificates of purchase and tax receipts, the regis- ter in chancery shall at once pay over to the owner of the tax title all sums received by him for the redemption of the lands therein described : Provided further, That no quit claim or reconveyance made under the provi- sions of this section shall be construed to vest in the grantee any title or interest in such lands beyond that already owned by him, but such grantee shall be en- titled to a lien on such lands, or on such parts thereof or interests therein as are not owned by him, for the amount paid, or such portion thereof as is lawfully chargeable to such parts or interests, in addition to the lien or other interest before held by such grantee; which lien may be enforced in any court of competent jurisdiction as in other cases of liens upon lands, with interest therein at the rate of six per centum per annum from the date of such payment. The circuit courts in chancery shall have jurisdiction to enforce the liens herein provided for without regard to the amount of such liens: Provided further, That any such applica- tion for a writ of assistance shall show that such appli- 573 FORECLOSURE OF TAX LIEN . 403 cant had complied with the provisions of this act as to the giving of notice, as herein directed, and he shall attach to such application a copy of the notice afore- said, and the return of the sheriff serving the same, or a copy of the proof of publication, or the registry receipt or receipts from the registry department of the postoffice showing that such notice has been served by registered mail." 403. Writs of Assistance. Service and Return of Notice. A person who buys delinquent tax lands of the auditor general is not invested with all of the rights of the land owner, nor are adverse titles and interests in the land extin- guished until the owners of such titles and interests are afforded, by the act of the tax title holder, opportunity to pay the taxes, and a penalty, and obtain a reconveyance. A short period of limitation is established, which begins to run upon the giving of the statutory notice antf the filing of the proof of service with the county clerk. The essential idea of the legislation is, opportunity for the delinquent tax payer. The period of opportunity begins with the service of notice and runs until such time as the tax title holder has brought himself within the statutory conditions for taking action. The court will not construe the legislation so as to make its provisions mandatory and so applicable only to cases where the returns of service show exact conformity with the statutory provisions. A return showing the fact of service, may be shown to be false, and actual proper service may be shown when the return does not recite that fact. The fact of proper service is, notwithstanding the return, matter to be proved, the actual filing of the return fixing the date from which the period of limitation begins to run. It is not essen- tial that the return show that the parties were residents of 403 THE LAW OF TAXATION 574 the counties in which service was made, nor fatal because copies of the notice, instead of originals, were served; nor need the return or notice show the authority of the person signing them nor need the amount of taxes for each year be given separately, nor need it state that the persons named or served were the last recorded grantees of the property, or mortgagees. The fact that the notices do not state the proper or correct interest of the parties, or are misdirected as to parties, is immaterial 73 . The notice is good though it may not correctly state the interest of the owner because the law was intended to prevent land owners from losing their property through ignorance or forgetfulness of the fact of the sale of the land for taxes ; and it is sufficient to inform the owner or persons in interest that the land has been sold 74 . The tax title holder must make every honest effort to serve the notice upon the owner of the premises purchased. Any effort to avoid a proper service through fraud or collusion, or an intentional omission to comply with the spirit of the statute, will not be effective. If the tax title holder knows where the owner of the land lives, the notice should be sent there and resort not had to publication. The return of the sheriff is not conclusive as to the facts he returns, but they may be controverted 75 . Among others, the statute requires 73. C. L. 3959, see 198, assistance must show that this 222, supra. Williams v. Olson, statute has been complied with, 141 Mich. 580; John Duncan attaching the return of the Land & Lumber Co. v. Rusch, sheriff and registry receipts. 145 Mich. 1. It is unnecessary 74. Bradlev v. Williams, 139 that the return show the official Mich. 230. capacity of the person upon 75. Winters v. Cook, 140 whom the notice was served, as Mich. 483, 487. The court says: an executor; White v. Shaw, "It imposes upon the purchaser 150 Mich. 270. Redemption by the obligation of good faith, a mortgagee shall not be deem- and an earnest effort to ascer- ed an absolute conveyance, but tain the owner and his where- only an additional lien in his abouts, and an honest attempt favor, drawing interest at the to give him actual notice and rate of six per cent per annum. the statutory opportunity." An application for a writ of 575 FORECLOSURE OF TAX LIEN notice to be served upon the holder of the last recorded deed in the regular chain of title. This provision is quite in- definite, and has not been definitely settled by the court. It has been held that the vendee in a recorded contract for the sale of land was within the spirit of the law; but the court did not determine whether or not he was entitled to service of the statutory notice 70 . In any event, the six months limitation against assailing a tax deed, provided by 143. does not run against the holder of an unrecorded contract of purchase who had not received notice of the sale 77 . The statute requires notice to be served upon the holder of the last recorded deed issued by the auditor general, this evi- dently contemplates a recording of the tax deed in the county where the land is, situated. When a subsequent tax pur- chaser also acquires the original title to the land and there 76. The statute provides for notice "upon the grantee or grantees under the last recorded deed in the regular chain of title to said land," and upon mortgagees and their assignees, of record. Our court has not defined what constitutes a "regular chain of title." A fair construction of the provision would mean such a chain of title as would carry the pre- sumption of ownership. It will be noticed that the statute does not require the entire "chain" to be of record, but only the last deed thereof. All of the evidence of title not being re- quired to be of record, it would follow that a deed from a party who had obtained his title by adverse possession would be such a 'Mast recorded deed in the regular chain of title" as would entitle the holder of the deed to notice. The court would presume that the state, and all other intermediate owners of the property,' if any, had conveyed their rights to the grantor in such deed, following Gamble v. Horr, 40 Mich. 561, discussed in 205, supra. In that case, the statute provided that no one should be permitted to question a tax deed without proving that his title had been acquired either from the United States, or the state. The plain- tiff there was unable to make such proof, but he did make such a showing as constituted pritna facie proof of ownership. The court held that the law would then presume the neces- sary grant from the govern- ment. In Jackson v. Mason. 143 Mich. 355. the question of duty to serve upon the vendee in a land contract, was not decided; but he was evidently allowed to defend against the notice. See 5198. supra. 77. Jakabowski v. Auditor General, 144 Mich. 46. 404 THE LAW OF TAXATION 576 are no outstanding claims against the premises excejjting prior unrecorded tax deeds, no notice need be given 78 . The Act, 204 of Public Acts of 1899, did not require service of notice upon a prior tax title holder, as he was not a grantee "in the regular chain of title." Though a prior tax title holder is now entitled to notice if his deed is of record, under Act 236 of public acts of 1903, yet a tax title purchaser under the former act is not bound to give any notice to the holder of any other tax purchase. This purchase of the in- terest of the state is a contract with the state, and is not sub- ject to change by either without the consent of the other. The state could not require other notices to be served upon persons claiming under other tax titles, without impairing the obligation of the contract 79 . Notice to a tax title holder by the register in chancery that the requisite sum to redeem the title has been deposited with himself by the holder of the original title, is a sufficient notification for a reconvey- ance 80 . Where lands are assessed as an entirety, but the title is in several undivided owners, the notice must be served on all such owners. Until there is such service, any one of them may redeem from the sale 81 . 404. Writs of Assistance. Defenses to, i As heretofore pointed out, such defense must go to the jurisdiction of the court entering the decree. Where the 78. Miller v. Meilstrup, 144 Co. v. Rusch, 145 Mich. 1; In Mich. 643. Weller v. Wheelock, 15 L. N. 79. Griffin v. Jackson, 145 856, Mich. it is held Mich. 23; In Avery v. Backus, that Act 236 of Public Acts of 16 L. N. 103, Mich. , 1903 applied to prior purchasers it is held that Act 142 of Public insofar as making it lawful to Acts of 1905, requiring service deposit money with the register upon a defendant, did not apply in chancery. to tax purchasers prior to the 81. White v. Shaw, 150 act. Mich. 270. 80. Escanaba Timber Land 577 FORECLOSURE OF TAX LIEN 404 owner of the land lias a certificate from the proper officer that the taxes were paid for the year for which the land was sold, it will be a defense to a writ of assistance, if set up by way of cross petition. Inasmuch as the tax deed could be set aside on a petition therefor, this defense may be made on the application for the writ 82 . It would seem, however, that the practice now is to defer issuing the writ until an applica- tion can be made to the auditor general to cancel the tax deed, and that the fact of payment, or a certificate of payment, cannot be shown as a reason for denying the writ 83 . The land owner may defeat a writ of assistance by showing the illegality of the sale 84 , "or that the notice was defective 85 . The owner may also show lack of jurisdiction in the court to enter the decree 8 *. He may show that the proof of ser- vice if notice has not been filed six months 87 ; or that the tax title purchaser did not, in good faith, attempt to have personal service made upon him 88 ; or that the notice was not in fact served 89 . Where the auditor general erroneously issues two deeds for the same property, to different per- sons, the first being invalid, and the owner redeems from such invalid deed, he will likewise be allowed to redeem from the second or valid deed on an application for a writ of assistance, the law does not contemplate a forfeiture where the owner, in good faith, attempts to redeem 90 . The 82. See petition to set aside decree on a petition for a writ decree, 5398, supra; Carpenter is held res judicata as to the v. Jones 117 Mich. 91. validity of the tax decree. 83. Mann v. Carson, 121 86. Sanborn Co. v. Johnson, Mich. 631, 638. 148 Mich. 405. 84. Citizens' Savings Bank v. 87. Pike v. Richardson, 136 Auditor General, 123 Mich. 511; Mich. 414. Jenkinson v. Auditor General, 88. Winters v. Cook, 140 104 Mich. 34. Mich. 483. 85. Ball v. Ridge Copper 89. Williams v. Olson, 141 Co., 118 Mich. 7; Hooker v. Mich. 580. Bond, 118 Mich. 255; Peters v. 90. Miller v. Steele, 14 Youngs, 122 Mich. 484. The Mich. 123. (87) 404 THE LAW OF TAXATION 578 fact that illegal items were included in the tax decree will not deprive the court of jurisdiction, nor defeat a writ of assistance 91 . An owner will not be held guilty of laches who takes action promptly to prevent the enforcement of a writ of assistance. The tax purchaser must comply with the statute and cannot, in this respect, rely upon the laches of the owner 92 . 91. Blauchard v. Young, 152 92. Sanborn Co. v. Alston, Mich. 619. 153 Mich. 456. CHAPTER XXIV. ACTIONS AT LAW. 5405. Form of Action for Tax. 5406. Actions for Special Assessments. 5407. Suits Against State. 5408. Actions Against Collector. 5409. Actions Against Municipalities, Assumpsit. Form for Declaration Against a Municipality. 5410. Presenting Claim to City. 5411. Replevin. 5412. Trover. 5413. Trespass. 5414. Mandamus to Pay Money. 415. Mandamus as to Other Duties 5416. Mandamus to Review Action of Court. 417. Mandamus In Re Drain Proceedings. 418. Mandamus In Re Special Assessments. 5419. Ejectment. 5420. Recovery for Improvements and Taxes. 5421. Improvements, Claim of Property. 422. Certiorari In Re General Tax. 423. Certiorari In Re Special Assessments. 5424. Certiorari in Drain Proceedings. 5425. Time of bringing Certiorari. 5426. Certiorari, Injury. 5427. Certiorari and Collateral Actions. 5428. Certiorari, Errors not Cured by Return. 5429. Certiorari, Explanations in Return. 405. Actions for Tax. Form. The officer who sues in the name of the township is al- lowed "to take all lawful ways and means for the collection of debts ;" and the theory of the proceeding is that an obliga- tion is cast by statute on the delinquent tax payer to pay a specific sum of money to the township officer, and that on the strength of this legal liability a proper action may be maintained. The form of the action is debt or assumpsit, 405 THE LAW OF TAXATION 580 the count explainin brieby the subject matter of the debt. A special declaration is not required; though one, if drawn according to the statutory provisions, would not be improper 1 . Unless specially authorized, the township cannot commence this action until the war- rant in the hands of the collector is returned unsatisfied 2 . It is no defense to such an action that the collector might have found personal property upon which to levy 3 . Either the township treasurer may bring the suit under the war- rant issued by the county treasurer, or the township, under the agency of the supervisor, after the treasurer's warrant has expired, may institute the suit 4 . Aside from statutory provisions, it is the general rule that public officers need not be expressly authorized by statute to bring suit, but their capacity to sue is commensurate with their public trusts and duties 5 . Where the municipality pays over uncollected state 1. Putman v. Fife Lake 437, it is held that an action Twp., 45 Mich. 125, bought by cannot be commenced until a the township treasurer under verified return has been filed. C. L. 1871, 1014, for taxes of In Sturgis v. Flanders, 97 Mich. 1876. 546; it is held that the village 2. In Boyce v. Stevens, 86 marshal can only bring suit for Mich. 549, it is held that a personal tax, after the return of defective return, if it states the his warrant, H. S. 2939. In taxes are uncollectable, will Chelsea v. Holmes, 137 Mich, support a suit. Decatur Twp. 195, it is held, under C. , L. v. Coply, 133 Mich. 546; Mus- 2868, 2871 that the muni- kegon v. Martin Lumber Co., cipality can bring suit after the 86 M : ch. 625; Port Huron Twp. return of the warrant, although v. Potts, 78 Mich. 435; Me- no levy had been made. Callum v. ^Bethany Twp., 42 3. Deerfield Twp. v. Harper, Mich. 457; Bangor Twp. v. 115 Mich. 678. Smith Transportation Co., 106 4. C. L. 3879, as to town- Mich. 223; Staley v. Columbus ship treasurer C. L. 3863 as to Twp, 36 Mich. 38; In Grand township. Bangor Twp. v. Rapids v. Welleman, 85 Mich. Smith Transportation Co., 113 234, it is held that under the Mich. 601; Port Huron Twp. charter, suit could be brought v. Potts, 78 Mich. 435. before the tax return was made. 5. Auditor General v. Lake In Northwestern Lumber Co. v. George, etc., Ry., 82 Mich. 426, Scott, 123 Mich. 357, and Port 429; Berrien Co. Treasurer v. Huron Twp. v. Potts, 78 Mich. Bunbury, 45 Mich. 79, 84. 581 ACTIONS AT LAW and county taxes upon personal property, to the county treas- urer, it may maintain assumpsit against the delinquent tax payer. Such payment is in no sense voluntary 6 . Where, however, a specific remedy is provided in the tax law as the proper method of collection, no suit will lie unless specially provided for, and then only as so provided 7 . While, in some cases, the particular property assessed may be levied upon to pay the tax, yet the treasurer can only bring his suit against the person assessed on the roll; and if such person is not the owner, the municipality cannot recover 8 . A mis- take in the name of the owner of personal property, how- ever, will not bar a suit against the real owner, but the tax, by the municipality 9 . But where the personal property of a corporation is assessed against a corporation, the munici- pality cannot bring its action against a trustee of the cor- poration. If the person sued was the real owner, the rule would be different 10 . Suit may be brought against an ad- ministrator or executor, where he has distributed the entire estate without paying the personal tax 11 . The taxes spread in the various wards of the city becomes a debt due the city; and the city, not the ward, is the proper party to bring the action 12 . Suit may be brought by the township treasurer 6. Pontiac v. Axford, 49 300, supra. Menoninee v. Mar- Mich. 69. tin Lumber Co., 119 Mich. 201. 7. In Detroit v. Jepp, 52 10. Homer Twp. v. Smith, Mich. 458, it is held that the 141 Mich. 586. old charter of Detroit provided 11. Orion Twp. v. Axford, fully for the enforcement of 112 Mich. 175. personal taxes by process from 12. St. Joseph v. Vail, 137 the receiver of taxes, and that Mich. 276. construing C. L. suit would not lie. 3863. C. L. 82871 provides for 8. Laketon Twp. v. Akeley, the bringing of suit by villages 74 Mich. 695. In Iron Star Co. to collect a tax. In Village of v. Wehse, 117 Mich. 487, the Chelsea v. Holmes, 137 Mich, owner, in replevin, for property 195, supra, it is held that the seized, it is said to be estopped village may bring such suit from complaining of an error before the expiration of the in its name. warrant. 9. See Healing Acts. 223 405 THE LAW OF TAXATION 582 to collect a tax on personal property, when he is so author- ized by the supervisor 13 . But the supervisor cannot bring suit in the lifetime of the warrant, under C. L. 3870; nor can the supervisor, under C. L. 2336, 3863, bring suit during that time 14 . The county treasurer may bring suit upon a former treasurer's bond, for the benefit of the county 15 . Statutory Provisions. C. L. 2868, after providing for distress and sale of goods by the treasurer of a village, provides further: "And for such purpose and for the collection of the taxes aforesaid, the treasurer may bring suit therefor, and shall have all the powers and perform the like duties, so far as applicable, as are conferred upon or required of township treasurers, in the collection of taxes levied in townships." C. L. 2871, with reference to villages, provides : "Whenever the treasurer shall be unable to collect any tax assessed upon personal property in the village it shall be lawful for the treasurer of the village to bring suit, in the name of the village, for the recovery thereof, against the person or persons against whom the tax was assessed before any court of competent jurisdiction and to take and use all lawful means provided by law for the collection of debts to enforce the payment of such tax; and in such cases all the provisions of law applicable to suits and the evidence therein, brought by 13. Ovid Twp. v. Haire, 133 holding that the treasurer may Mich. 353. bring the suit, during the life 14. Decatur Twp. v. Copely, of the warrant. 133 Mich. 546; Wayne Village 15. Buhrer v. Baldwin, 137 v. Goldsmith, 141 Mich. 528; Mich. 263. 583 ACTIONS AT LAW township treasurers in the name of their township for such purposes, shall apply." C. L. 3870, provides: "* * * The township treasurer, if otherwise unable to collect a tax on per- sonal property, may sue the person, firm, or corporation to whom it is assessed, in the name of the township village or city, and garnishes any debtor or debtors of such person, firm or corporation. The tax roll shall be prima fatie evidence of the debt sought to be recov- ered." C. L. 3334, with reference to cities of the Fourth Class, provides: "* * * The city collector may, and it shall be his duty to proceed by suit in the name of the city, for the collection of unpaid taxes in the same cases, and under like circumstances in which town- ship treasurers are authorized to proceed in that man- ner and all the provisions of law applicable to suits and evidence therein brought by township treasurers in the name of their township for such purposes, shall apply to suits brought by the city treasurer as aforesaid." C. L. 2336, provides: "* * * That the super- visor of such township shall be the agent for his town- ship, for the transaction of all legal business-, by whom, suits may be brought defended, and upon whom all process against the township shall be served." 406. Actions for Special Assessments. Where an assessment is invalid and is set aside, the city canrrot thereafter bring an action at law 'to recover the pro- portion of the tax the land owner ought to pay. When a person is held liable for his special share of a public burden, it must be determined by some form of assessment whereby 407 THE LAW OF TAXATION 584 the burden is distributed on some uniform basis; the court will not try to determine that proportion 16 . A contractor cannot bring his action against the city where he has only partly performed his contract, unless the work is stopped by the city entirely 17 . 407. Suits Against State. The state cannot be sued without its consent. While there is, no doubt, some difficulty in drawing with precision any exact line of jurisdiction, it is very clear that, where money has gone into the state treasury, not as a separate and in- dependent item wrongfully received, but as a part of a gen- eral balance rightfully received, the recovery of it from the state, if not voluntarily allowed within the authority of some proper officer, must fall within the same rules that would apply to any other pecuniary demands against the state. If this money had been found in a city or county treasury among the book balances or other charges or credits, or if it had been retained by an individual upon an error in stating accounts, it could not be distinguished from other causes of action usually prosecuted in a suit for money had and received. It is simply so much money kept back out of the collections made by the state for the benefit of the county. If the state could be sued it would not be a proper case for mandamus. The fact that actions will not lie against the state does not change the nature of the claim or make it anything but a state debt. Upon this principle, where a county has once paid an illegal claim to the state it cannot set off this payment against later valid claims of the state 18 . 16. Manistee v. Hasley, 79 18. See County Treasurer, Mich. 238. 166; State Taxes, 109. Auditor 17. Mathewson v. Grand General v. Bay County, 106 Rapids, 88 Mich. 558. Mich. 662, 665; Ambler v. 585 ACTIONS AT LAW No suit which is in reality against the state can be main- tained against a state officer or the auditor general. The only cases in which a writ can issue against him are cases of strict right, where his action was plainly unlawful, or where there was some duty involved to do or not to do the act in dispute. In most instances affecting private or cor- porate rights no discretion could lawfully be given which would interfere with private remedies. In a large class of the auditor general's duties the statutes are specific enough to relieve the controversies which may arise from any con- flict of jurisdiction. While no individual can bring an action against the state, yet if the state brings its action against an individual, it is limited in its recovery by any defenses which might be set up against individual plaintiffs 19 . Where the set off claimed is in its nature in assumpsit, and the right claimed to make the set off is only an irregular form of action against the state, such a suit cannot be maintained, directly or indirectly involving a common law issue only, against the state 20 . A bill will not lie against the state, or the auditor Auditor General, 38 Mich. 746, the relator. Mich. Southern, 750; Auditor General v. Van etc., Ry. v. Auditor General, 9 Tassell, 73 Mich. 29; Auditor Mich. 448, was an injunction bill General v. Gd. Traverse Co., 73 to restrain the levy of specific Mich. 182. taxes. In Smith v. Auditor 19. Ambler v. Auditor Gen- General, 20 Mich. 398, a bill was eral, 38 Mich. 746. In St. sustained to restrain the auditor Marys Falls, etc., Co. v. general from selling lands for Auditor General, 7 Mich. 86, illegal interest. In Jackson the Auditor General was direct- Mining Co. v. Auditor General, ed to cancel certain taxes in 32 Mich. 488. the auditor gen- pursuance of a contract with eral was restrained from col- the state. In Throop v. Auditor lecting an illegal specific tax. General, 9 Mich. 134, the 20. Auditor General v. Gd. auditor general was directed to Traverse Co., 73 Mich. 182; reject certain taxes on bounty Ambler v. Auditor General. 38 lands in pursuance of the Mich. 746; Auditor General v. statute. In Houghton Co. v. Saginaw Co., 62 Mich. 578; Auditor General, 9 Mich. 141. U. S. v. Robeson, 9 Pet. 319; the auditor General was directed U. S. v. Gilmore. 7 Wall. 4'.M : to pay certain specific taxes to Watkins v. I'. S., 9 Wall. 765. 408 THE LAW OF TAXATION 586 general, in the absence of statutory authority, to quiet title to lands bid off to the state for delinquent taxes, in the ab- sence of a claim that the sale was tainted with fraud, or that some officer has either acted or is about acting, i'n some unauthorized and illegal manner. Where the owner of prop- erty allows the tax proceedings to culminate in a sale to the state, the tax title cannot be contested unless the state con- sents to become a litigant for the purpose, and points out the officer to be made a party 21 . 408. Actions Against Collector. If tax proceedings are fatally defective on their face, a suit will lie against a collector to recover money involun- tarily paid on them. The action may be that of trespass, or other suitable form. Where the warrant is bad upon its face, anyone who seeks to enforce it is a wrong-doer, and any money obtained under it being unlawfully obtained, the collector has no right to pay it into the treasury, and such payment will not exonerate him. No relationship of prin- cipal and agent can exist under a law which is null, and the case cannot be likened to that of an innocent agent who, without personal fault, receives money by mistake and trans- mits it to his principal. The immunity belonging to such transactions does not extend to wrong doers 22 . An assess- ment, however, is in the nature of a, judgment, and cannot be assailed for fraud or irregularity in a suit against an officer who holds a process fair on its face, for enforcing a tax based upon it 23 . 21. Burrill v. Auditor Gen- Cummings, 44 Mich. 359; Smith eral, 46 Mich. 256. v. Bank, 17 Mich. 479. 22. First Nat. Bank v. Wat- 23. Moss v. Cummings, 44 kins, 21 Mich. 483, 488; Moss v. Mich. 359. 587 ACTIONS AT LAW 409 409. Actions Against Municipalities. Assumpsit. When a municipality is sued for money collected and paid over to it for a tax, the question involved is whether the municipality has money in its hands which equitably belong to the plaintiff. The suit will not lie to recover back taxes simply because their levy and collection have been irregular. There must be something which either exempts the party from taxation altogether, or deprives the officers of jurisdic- tion because of illegality or inequality 24 . In this action the liability of certain classes of property to taxation, when clearly identified and separable, is examinable. Thus the plaintiff may show that the personal property assessed to him was in fact a legacy still in the hands of the executor 25 . In cases of recovery, interest is allowed against the munici- pality 26 . Where a tax is paid under protest, whether statutory or common law, the plaintiff must show the fol- lowing concurring facts existing at the time suit is brought : First. That the treasurer or collector was armed with a tax roll, with a proper warrant attached, and demanded the payment of a tax appearing on the roll as assessed against him, and had levied or threatened to levy the same upon his property,, unless the same was paid. Second. That he paid the same under protest to relieve his property from the levy or threatened levy. Third. That the tax was void, and the municipality had no legal right to demand or have it 27 . 24. An action will lie to re- 25. Herrick v. Big Rapids, cover an excess of taxes only. 53 Mich. 554. See excess, 9142, 166; Grat- 26. Grand Rapids v. Blakely, wick, etc., Lumber Co. T. 40 Mich. 367; Daniels v. Water- Oscoda Village, 97 Mich. 221, town Twp., 55 Mich. 376. 227; Daniels v. Watertown 27. Turnbull v. Alpena Twp., Twp.. 55 Mich. 376; Minor 74 Mich. 621, 627; Louden v. Lumber Co. v. Alpena, 97 Mich. East Saginaw, 41 Mich. 18. In 499; White v. Millbrook Twp., Nicodemus v. East Saginaw, 60 Mich. 532. 25 Mich. 456, the warrant had 409 THE LAW OF .TAXATION 588 An action will lie against a municipality for an illegal special assessment where the municipality makes the contract for the improvement, as a paving or sewer tax 28 ; but when the municipality is in no manner liable for the improvement, as a drain, it will not be liable for the illegal tax collected, though the collecting officer be the treasurer of the munici- pality 29 . The proceedings of taxing officers are not to be criticised with microscopical nicety, and the exact time and method of every step examined to detect a departure from the law, however, insignificant or unintentional. The policy of the law is that all parties shall pay legal taxes even though there may be some irregularity in demanding them, and that they shall complain to the courts of those errors only which may injure them. The possibility of collecting the state revenue depends upon the observance of this policy, and the court does not feel bound to examine in detail every irregularity which a record may show. It- is probable that in no tax case have all the proceedings been exactly and punctiliously correct, but they are sufficiently so far legal purposes in any case if no error is committed which can prejudice the person taxed 30 . Where the illegal taxes have been paid to the municipal collector, it will be presumed, in an action for their recovery, that the money was turned into the municipal treasury 31 . The suit should be brought expired when the threat of 142, 166. Stockle y. Silsbee, levy was made. Held, that the 41 Mich. 615, 618; Minor Lum- action would lie, and that it her Co. v. Alpena, 97 Mich. 499. would be presumed the col- In Loud Lumber Co. v. Elmer lector had paid the money into Twp., 123 Mich. 61, It is held the treasury. that a conveyance for the pur- 28. Nicodemus v. East Sagi- pose of avoiding payment of naw, 25 Mich. 456; Louden v. taxes will not release the grant- East Saginaw, 41 Mich. 18. or. 29. Camp v. Algansee Twp., 31. Nicodemus v. East Sagi~ 50 Mich. 4; Dawson v. Aurelius naw, 25 Mich. 456; Daniels v. Twp., 49 Mich. 4V9. Watertown Twp., 55 Mich. 376. 30. See Excess of Taxes, 589 ACTIONS AT LAW ?4>'.i without unreasonable delay. It is grossly unjust to allow a claim to sleep for several years and then bring this action 32 . Assumpsit lies against a township for money re- ceived on the sale of property for an illegal tax, and not mandamus. Such a case generally involves disputed ques- tions of residence and business, and therefore generally necessary that a jury should determine the issue 83 . Form for Declaration Against a Municipality. State of Michigan, *\ The Circuit Court for the County of Monroe. > County of ) of the city of of said county, plaintiff herein, by , his attorney, complains of the city of , defendant in this suit, the said city of having been duly summoned to answer the said plaintiff, on a plea of trespass on the case upon promises: For that, whereas, the said defendant heretofore, to-wit, on the day of , at the city of , said county of , was indebted to the plaintiff in the sum of dollars for so much money before that time which had been received by the said defendant to and for the use of said plaintiff. And, being so indebted, the said defendant, in considera- tion thereof, afterwards, to-wit, on the same day and year aforesaid, undertook, and then and there faithfully prom- ised said plaintiff, well and truly to pay unto the said plain- tiff the said sum of money last above mentioned, when said defendant should be thereunto afterwards requested. 32. Louden v. East Saginaw, itarium, etc. v. Battle Creek, 41 Mich- 18, 26-7. 168 Mich. 676; Baily v. Bay 33. Byles v. Golden Twp.. 52 City, 139 Mich. 495. Mich. 612: Battle Creek San- 410 THE LAW OF TAXATION 590 Nevertheless, the said defendant t although often after- wards requested so to do, has not as yet paid the said sum above mentioned, or any part thereof, to said plaintiff; but, to pay the same, or any part thereof, to the said plaintiff, the said defendant has hitherto wholly refused and still does refuse; to the damage of the said plaintiff in the sum of dollars, therefore he brings suit, and etc. Attorney for plaintiff. To the above named defendant: Take notice that the following is a bill of particulars of the demand of the plaintiff, namely: cash paid to release the property of plaintiff from levy and sale by the treasurer of the defendant by vir- tue of a warrant annexed to a pretended assessment roll, made, adopted and issued by the direction of, the com- mon council against the premises of plaintiff in the said city of which said cash was paid as aforesaid, under protest and which said roll and warrant are illegal and void; the said money includes an assessment of dollars, and expenses of levy and soforth dollars, total dollars. Attorney for plaintiff. 410. Presenting Claim to City. The presenting of the claim to a city or village council, for taxes paid under protest, is a condition precedent to the bringing of the suit. It will be presumed that the council will fairly investigate the claim and refund the tax, if such 591 ACTIONS AT LAW 411 action should be just 34 . When the presentation of the claim is not required by the charter, a demand for repayment is unnecessary 35 . 411. Replevin. The statute provides that "no replevin shall lie for any property taken by virtue of any warrant for the collection of any tax, assessment or fine in pursuance of any statute of this state" 36 . To construe this provision as intended to apply only to cases in which the taxes for which the property has been taken have been imposed by authority of, and in full compliance with, the statute authorizing any particular taxes, so as to render it a valid tax in pursuance of such statute, would be to make the question of the maintainance of the replevin depend, in all cases, upon the validity of the tax, to be determined upon the trial; and this would make the statute forbid only those actions of replevin which must equally have failed without the statute. On the other hand, to construe the statute as applying to a case in which there is no statute authority for the assessment and collection of any tax by the officers who may have undertaken to assess and collect one, and where no authority to impose and col- lect any tax under any statute of the state, or to a case where the property of some other person than the party taxed has been seized, would be to extend the statute to cases which do not come within its spirit or intent. This provision must therefore be construed as applying only to cases in which a valid tax might, by legal possibility, have 34. Louden v. East Saginaw, Crittcnden v. Mt. Clemens, 86 41 Mich. 18, 26; Mead v. Lans- Mich. 220; Mason v. Muskegon. ing, 56 Mich. 601; Detroit v. ill Mich. 687. Mich. Paving Co., 38 Mich. 358. 35. Grand Rapids v. Leon- In Whitney v. Port Huron, 88 ard. 40 Mich. 370. Mich. 268, suit is held not prem- 36. 8 H. S. 88318, C L. ature when brought 36 days {10651. after presentation of claim. 411 THE LAW OF TAXATION 592 been imposed and collected by regular and proper proceed- ings under some statute authority 37 . The statute does not apply where there was no jurisdiction to assess the tax 38 ; or where property is exempt from seizure, as goods assigned for the benefit of creditors for the first ten days after assign- ment 39 . This action will not lie when there was jurisdiction to assess the tax 40 ; nor,can the statute be evaded by a fraudu- lent conveyance of the property for the purposes of assess- ment only. While. such property is still in the hands of the vendor, it may be levied upon and replevin will not lie 41 . If, however, it is in the hands of a bona fide leasee, he may maintain the action 42 . It will not lie where the locus of assessment is correct and the warrant is fair upon its face 43 ; as where a parcel of land owned by two parties, is assessed to one, and a levy is made upon this one for the entire tax 44 . It will not lie where property was seized upon a warrant issued by the county treasurer, although no sworn return has been made as a basis for issuing such warrant, which would be essential in an action by the treasurer or municipality 45 . 37. Forster v. Brown, 119 Mich. 424, there was a misno- Mich. 86, 89; LeRoy v. East mer of the owner. Boyce v. Saginaw, 18 Mich. 233; Travers Stevens, 86 Mich. 549. v. Inslee, 19 Mich. 98; Hill v. 41. Gray v. Finn, 96 Mich. 62. Wright, 49 Mich. 229. In Me- 42. Whitaker v. Fuller, 96 Coy*v. Anderson, 47 Mich. 502, Mich. 141; Tousey v. Post, 91 and Boyce v. Cutler, 70 Mich. Mich. 631. 539, 546, it is held that if the 43. Hood v. Judkins, 61 tax was laid without authority Mich. 575; Hill v. Graham, 72 of law as to any part of it, as Mich. 659; West Mich. Lumber want of jurisdiction of the Co. v.' Dean, 73 Mich. 459; Rob- assessing officer to levy the tax, erts v. Denio, 118 Mich. 544; replevin would lie to regain the Forster v. brown, 119 Mich. 86; property seized for the tax. Boyce c. Peterson, 84 Mich. 490. 38. Lantis v. Reithmiller, 95 44. Scott v. Whelan, 96 Mich. Mich. 45, a fence viewer's tax 624. was assessed when there was no 45. Northwestern Lumber Co. jurisdiction to levy such a tax. v. Scott, 123 Mich. 357; Mich., 39. Lyons v. Harris, 52 Mich. etc. Power Co. v. Atwood, 126 272. Mich. 661; Boyce v. Stevens, 86 40. Hill v. Graham, 72 Mich. Mich. 549. 659. In Fletcher v. Post, 104 ACTIONS AT LAW 412, 413 Replevin is the proper remedy either against a collector or purchaser, when the collector seizes the property of a stranger to the tax 48 . ,<412. Trover. A warrant that is fair upon its face will protect the col- lector from personal responsibility, as a wrong-doer, against any illegalities claimed to have been committed by the super- visor. An excess in any tax does not make the warrant void on its face, else an excessive tax against one person would make the entire roll void 47 . This action will lie, however, for cutting timber under a void tax title where the posses- sion was only fugitive 48 . 413. Trespass. Where a supervisor delivers a roll to a collector con- taining taxes for collection which are void on their face, and the collector enforces payment thereof, an action of tres- pass will lie against the supervisor for directing the col- lector, in the warrant, to enforce such taxes as void on their face 49 . The law has not vested in the supervisor the right to impose any tax except as previously required by some other competent authority, and even where the proper authorities have determined upon the raising of the several taxes, he cannot take as his basis for the apportionment any list of roll which has not been submitted to, and acted upon, by the board of supervisors, and corrected and if necessary, equalized by them ; and the evidence of their action must be 46. Canfield Lumber Co. v. 48. Moret v. Mason, 10 Manistee Twp., 100 Mich. 4. Mich. 340. 47. Bylcs v. Genung, 5* 49. Atwell v. Zeliff, 8 Mich. Mich. 504; Curtiss v. Witt, 110 118; Smith v. Crittenden, 1 Mich. 131; Bird v. Perkins, 33 Mich. 158. Mich. 28. (88) 413 THE LAW OF TAXATION 594 certified by their chairman. The collector's roll is but a copy of the original roll and need not contain the certificate from the board. The production, therefore, of the collectors roll, with the warrant, is not, as to the supervisor, ' prima facie evidence in an action of trespass, of the right of the collector to make a levy. The supervisor must, affirmatively show his right to make and attach the warrant to the collectors roll, which he can do by producing the original certificate to himself from the clerk of the board of supervisors. The supervisor must therefore show that the original roll came into his hands from the board of supervisors, that the state and county taxes were properly certified to him by the county clerk, and that the township taxes had been certified by the township clerk. The supervisor, however, will not be liable because of an erroneous description upon the roll 50 . Trespass will also lie against the fugitive acts of a person holding a void tax title, such acts not constituting possession in good faith 51 . The right of action for a trespass committed upon state tax lands, before the state has sold its title, remains in the state after such sale 52 . After justifying as commis- sioner and contractors, it is proper to allow an amendment in the circuit court, where the suit was commenced in justice court, by stating that the parties entered the premises under a license from the owner 53 . Where the contractors exceed the limits of the right of way in constructing the drain, they are trespassers 54 . But although, on a petition to clean out, the contractor makes the drain larger than the specifications, this act of trespass would not vitiate the drain proceedings 50. Clark v. Axford, 5 Mich. 136 Mich. 128. 182, 187. 53. Hopkins v. Briggs, 41 51. Safford v. Basto, 4 Mich. Mich. 175. 406. 54. Clark v. Wiles, 54 Mich. 52. BlaKe v. Groucin, 141 323. Mich. 104; Hickey v. Rutledge, 595 ACTIONS AT LAW 414 or make the commissioner liable 55 . Where a drain is illegally constructed through premises, the measure of damage is the loss of the use of the land and the cost of putting it in as good condition as before. The jury cannot consider the benefits derived from the illegal construction of the drain 59 . 414. Mandamus to Pay Money. The school board, under the statute, may direct where the school money shall be deposited; and where the treasurer refuses to so deposit the funds, a mandamus will issue to compel him to do so. It is no defense to such an action that the monies have not been formally separated because they are clearly distinguishable on the tax rolls. This action will lie at the instance of the school board, but not of the deposi- tory 57 . It is the proper remedy to compel the payment of money from one township to another, where a township was divided and the levy was made by the old township. As- sumpsit will not lie 58 . But unless the amount is liquidated and ascertained, mandamus will not lie but assumpsit may be brought. Where there has been no statement of account between a township and county, and there may be claims both ways, a mandamus will not issue until the amount has been fixed by the judgment of the court 50 . Yet the court may refer disputed accounts to a referee upon an applica- tion for a mandamus to determine the facts as to the account between a township and a county 60 . If the controversy can be determined from the petition and answer, the court, by 55. Angell v. Cortright, 111 58. Comins Twp. v. Harris- Mich. 223. ville Twp., 45 Mich. 441. 56. Walters v. Chamberlain, 59. Gumming Twp. v. Oge- 65 Mich. 333. maw Co., 93 Mich. 315. 57. See chapter upon account- 60. Haines v. Saginaw Co., 87 ing, 166-179; Sec res judicata. Mich. 237: Haines v. Saginaw 456, post; Board of Education Co.. 99 Mich. 38. v. Runnels, 57 Mich. 46. 414 THE LAW OF TAXATION 596 mandamus, will correct either a mistake of law or of facts 61 . Where the county, by mistake, pays an excess of money to the state it cannot thereafter set off this excess of payment against a later valid claim of the state. Although this may be a just claim on the part of the county, it can amount to no more than a claim against the state for money paid to the use and benefit of the county which cannot be made the subject of an action against the state, as a state cannot be sued without its consent 62 . A city treasurer, in his own name, may compel the county treasurer to refund to him monies paid over by mistake, and really belonging to the city 63 . A county will also be compelled to pay to a town- ship detached from it such sum as may be owing to it; and the county treasurer's books will be presumed to show the correct balance 64 . This is a discretionary writ, and will not be awarded where it does not appeal to a sense of justice nor to the proper idea of the duty of the property owner to the state, which makes his person and property secure. Thus, where a property owner held a certificate of purchase of lands for several years, and meantime permitted his interest in such land to be assessed as real estate instead of personal property, the land not otherwise being assessed, the writ to compel a refunding to him of the taxes so paid was de- nied 66 . It will lie to compel a school district to issue a war- rant for work upon a school building in pursuance of the vote of the electors 66 . Where the payment of money is 61. Auditor General v. Sagi- Ambler v. Auditor General, 38 naw Co., 62 Mich. 579; Auditor Mich. 746. General v. Ottawa Co., 76 Mich. 63. Webster v. Wheeler, 119 295; Auditor General v. Shia- Mich. 601. wassee Co., 74 Mich. 536; Audi- 64. Roscommon Twp. v. Mid- tor General v. Monroe Co., 36 land Co., 49 Mich. 454. Mich. 70. 65. MacKinnon v. Auditor 62. See Actions against state, General, 130 Mich. 553, 556. 407, supra; Auditor General v. 66. Banhagel v. School Board, Bay Co., 106 Mich. 662, 664; 134 Mich. 455. ACTIONS AT LAW 415 sought to be enforced by a private individual, the statute of limitations may be pleaded in answer thereto* 7 . 415. Mandamus. As to Other Duties. It is the proper remedy to compel the spreading of a tax 68 ; and to compel a township to make good to the county the loss sustained by a defaulting township treasurer 89 . It is the proper remedy to compel the treasurer to sell delinquent tax lands. He cannot refuse so to do because he thinks the taxes are illegal; only a tax payer can raise that objection 70 . It lies to compel a township clerk to issue a certificate for the levy of a tax to satisfy a judgment 71 . It lies to compel the auditor general to issue a certificate of error 72 , or to issue a deed 73 . It will not lie to compel a further assessment to pay bonds until after the sale of delinquent tax lands upon which the first assessment was made 74 . It is a dis- cretionary writ and may be refused where the relator has slept upon his rights and he will not be compelled to cancel a void tax deed and where the interest of third parties have 67. McRae v. Auditor Gen- 71. Courtwright v. Brooks era), 146 Mich. 594; Wilkinson Twp., 54 Mich. 182; Balch v. v. Auditor General, 147 Mich. Detroit, 109 Mich. 253; Bogert 13. v. Circuit Judge, 118 Mich. 457. 68. Attorney General v. Board 72. Jackson v. County Treas- of Supervisors of St. Clair Co., urer, 117 Mich. 305. Hubbard 30 Mich. 388. In this case the v. Auditor General, 120 Mich, board was ordered to spread a 505; Cockburn v. Auditor Gen- tax due the state. Ramsey v. eral, 120 Mich. 643; Hoffman v. Everet Twp. Clerk, 52 Mich. Auditor General, 136 Mich. 689. 344. In Smith v. Jones, 136 It will not lie to compel issu- Mich. 532, it issued to compel ing a certificate of error where the supervisor to spread a the same tax is involved in a school tax upon the township chancery proceeding; Swift v. at large for a sum the town Auditor General, 151 Mich. 622. treasurer had embezzled. 73. Cockburn v. Auditor Gen- 69. Hart v. Oceana Co., 44 eral, 120 Mich. 643. Mich. 417. 74. Wayne Co. Savings Bank 70. Hudson v. Whitney, 53 v. Roscommon Twp., 97 Mich. Mich. 158. 630. 416 THE LAW OF TAXATION 598 intervened 75 . It being a discretionary writ, issued only in the furtherance of justice, it was refused upon an application to compel the auditor general to cancel a sale where only a portion of the land was locally assessable, but there had been no offer to pay any portion of the tax 76 . 416. Mandamus. To Review Action of Court. This writ will be granted to compel a circuit judge to issue an injunction when it clearly appears that his refusal so to do was based upon an erroneous opinion of the law applicable. While the supreme court hesitates to review the action of the trial court in matters of direction, it will do so if necessary that justice may be done 77 . It will likewise be granted to dissolve an injunction where the dispute is one of law merely 78 . It will be granted to compel the issuing of an injunction to restrain waste upon wild lands before the taxes are paid 79 . Mandamus will not lie to compel a circuit judge to review a decree ordering the sale of lands for an alleged illegal tax. The remedy by appeal is ade- quate 80 . It will not lie to dissolve an injunction upon the ground that the bill is multifarious, as this is a mere formal objection 81 . 75. Cook v. Auditor General, from submitting the question of 124 Mich. 430. a loan to a vote of the people; 76. Gd. Rapids I. R. Co. v. Van Norman v. Circuit Judge, Auditor General, 144 Mich. 77. 45 Mich. 204. Ionia, etc., Ins. 77. Dodge v. Circuit Judge, Co. v. Circuit Judge, 100 Mich. 118 Mich. 189; Tawas, etc., v. 606. Circuit Judge, 44 Mich. 479; 79. Rossman v. Adams, 91 Lansing Lumber Co. v. Circuit Mich. 69, 73. Judge, 108 Mich. 305. 80. Wiley v. Beach, 86 Mich. 78. Thomas v. Kent Judge, 381. 116 Mich. 106, where an injunc- 81. River Rouge v. Judge, tion had been allowed restrain- 147 Mich. 204. ing the board of supervisors ACTIONS AT LAW U7, 418, 4 HI 417. Mandamus. In Re Drain Proceedings. Under the early holdings of the court, the supervisor could set up the illegality of the drain proceedings as a defense for not spreading the drain tax 82 . This was permitted, although the drain had been constructed, and a part of the tax, in another township, paid in, where the defects were jurisdic- tional 83 . The general rule, however, is that the supervisor cannot set up the illegalities of the proceedings as a justifica- tion for not spreading the drain tax 84 . Mandamus will lie to compel the lower court to retax costs. The lower court will be bound by the objections made before the court; others cannot be raised 85 . 418. Mandamus. In Re Special Assessments. It will lie to compel a village treasurer to sell lands de- linquent for special assessments, if the proceedings are suf- ficiently fair to protect ministerial action, the work having been done and part of the tax paid 86 . It will not lie to com- pel the payments of warrants pending a suit to establish the legality of such warrants at the instance of a tax payer 87 . $419. Ejectment. A decree entered in the circuit court in chancery ordering the sale of lands for delinquent taxes is conclusive, and can- not be assailed in an action of ejectment except to show lack 82. Nugent v. Erb, 90 Mich. lage v. Whitney, 53 Mich. 158. 278. 86. Patterson v. Calhoun 83. Hubble v. Robertson, 65 Judge, 144 Mich. 416; Schmidt Mich. 538. v. Circuit Judge, 138 Mich. 452, 84. See Supervisor, 5287, as to compelling a judge to act. supra. Lambach v. O'Meara, 86. Hudson Village v. Whit- 107 Mich. 29, 30: Smyth v. Tit- ney, 53 Mich. 158. comb, 31 Me. 286; People v. 87. Detroit, etc., Plank Road Halsey, 53 Barb. 547; Waldron Co. v. Highland Park. 142 Mich. v. Lee, 5 Pick 328; Hudson Vil- 366. 419 THE LAW OF TAXATION 600 of jurisdiction of the equity court 88 . This lack of jurisdic- tion must appear upon the face of the record; it cannot be shown otherwise in a collateral suit. The legality of the taxes cannot be inquired into 89 . While the jurisdiction of the court entering the decree cannot be attacked except as above stated, yet, a certificate of error issued by the auditor general cancelling the deed in question, is admissible. In other words, the facts which would entitle a defendant to a certificate of error cannot be shown to defeat an action of ejectment; but the certificate must first be obtained and then introduced in evidence 90 . The records of a court of equity are of such pre-eminent authority that their truth is not to be called in question collaterally. For it is a settled rule and maxim that nothing shall be averred against a record, nor shall any plea, or even proof, be admitted to the contrary. And if the existence of a record be denied, it shall be tried by nothing but itself; that is, upon bare inspection whether there be any such record or no; else there must be no end of disputes. Therefore, in an action of ejectment, it cannot be shown that the judge signed the decree before the amounts were filled in, though if such fact were made to appear in the original proceedings either by petition or bill of review, it would be held a fatal defect 91 . One in possession of prem ises under a land contract with an obligation to pay the taxes, cannot let the taxes go by default, and set up a tax title so acquired by a third person, against the owner of the 88. See Decree, 390, supra. Wood, 117 Mich. 174; Kneeland Cole y. Shelp, 98 Mich 56. In v. Hyman, 118 Mich. 56; North- re Wiley, 89 Mich. 58; Hilton rup v. Maneka, 126 Mich. 550; v. Dumphey, 113 Mich. 241. Nowlen v. Hall, 128 Mich. 274, 89. Watts v. Bublitz, 99 278. Mich. 586. 91. See Certificate of sale, 90. See Certificate of error, 197, supra. Boardman v. Booze- 397. supra. Wood v. Bigelow, winkle, 121 Mich. 320. 115 Mich. 123; Kneeland v. 601 ACTIONS AT LAW 420 premises, in an action of ejectment' 2 . Neither can the holder of a certificate of sale which entitles him to a tax deed, set up such certificate as a defense. No title passes until the deed issues 93 . A mortgagee, not in possession, has only a lien upon, but no title to the mortgaged premises, and no such title as gives a plaintiff in ejectment a right to make him a party defendant 94 . The action will lie on the record- ing of the tax deed, as this act is construed to indicate a hos- tile claim of title 95 . Ejectment will lie against the occupant of state homestead land where the land was bid into the state at a void tax sale 96 . 420. Recovery for Improvements and Taxes. The statute provides that when in any action of eject- ment, a person whose title is defeated, but who has been in possession in good faith, or under color of title for six years, may recover the value of the permanent improve- ments. The identity of the property occupied with that described in the tax deed must be established by rules of law. If the description in the tax deed does not correctly describe the property, such description cannot be supple- mented by parol proof as to identity, and the claim for im- provements will fail 98 . The statute also provides for a lien for improvements upon the lands when any tax title pur- chaser is dispossessed, and permits the enforcing of this 92. Hubbard v. Sheppard. miller v. Hathaway. 60 Mich. 117 Mich. 25. 391; Murray v. Hudson, 65 93. See No. 91, supra. Mich. 670, 674. 94. Dawson v. Peter, 119 96. Platz v. Englehardt, 138 Mich. 274, 281. Mich. 485; Morse v. Auditor 95. Hoyt v. Southard, 58 General, 143 Mich. 610; Meagh- Mich. 432; Goodman v. Nester, er v. Dumas, 143 Mich. 639. 4 Mich. 062; Tillotson v. Web- 98. King v. Potter, 18 Mich., ber, 96 Mich. 144; Anderson v. 134. Courtright, 47 Mich. 161; Heins- THE LAW OF TAXATION 602 lien in equity, where no other provision is made. This lien does not extend to taxes paid, however". A claim for im- provements can only be made by some person having pos- session under claim of legal right. It cannot be made by a mere licensee whose right of entry is liable to be revoked at any time 1 , nor can it be made after one trial had 2 . The re- payment of all taxes paid by a defendant in ejectment is a condition precedent to entering judgment, where the statute so provides 3 . Otherwise, this lien for taxes is enforced in equity 4 . A recovery for improvement was allowed where the occupant was dispossessed of state homestead land by the original owner 5 . 421. Improvements. Claim of Property. In order for the defeated tax title holder to make a claim for improvements, it must appear that the claimant was in possession under a hostile and adverse holding brought home to the owners of the fee. The recording of the tax deed alone may not be sufficient where the owners are in the occu- pancy of the premises with the claimant 6 . Where a tax title holder enters the property without giving the notice 99. See Lien for taxes, 143, Mich. 569; Ellsworth v. Free- supra. Croskery v. Busch, 116 man, 43 Mich. 488; Tillotson v. Mich. 288; Connecticut, etc., Circuit Judge, 97 Mich. 585, 588. Ins. Co., v. Wood, 115 Mich. In Robbins v. Barron, 34 Mich. 444, 453. 517, it is held that the money 1. Buell v. Irwin, 24 Mich. paid for the last title takes pre- 145; Newaygo Mfg. Co. v. Eich- cedence over earlier sales. In tenaw, 81 Mich. 416. Stockle v. Silsbee, 41 Mich. 2. Van Den Brooks v. Cor- 615, 622, it is held that only le- reon, 48 Mich. 283. gal taxes paid becomes a lien. 3. Beard v. Sharrick, 67 5. Platz v. Englehardt, 138 Mich. 321; H. S. 1208; Sinclair Mich. 485. v. Learned, 51 Mich. 335. 6. Paldi v. Paldi, 84 Mich. 4. Act No. 169 of Laws of 346, 356. 1869, Weimer v. Porter, 42 603 ACTIONS AT LAW 422 required by statute, he cannot recover for the improvements he may have made 7 . 422. Certiorari. In Re General Tax. This action will not lie generally to review a tax proceed- ing, unless specially provided by statute, because in it the court cannot exercise original jurisdiction for the purpose of curing substantial defects wherever it shall be found prac- ticable. It is very evident that the court cannot exercise this jurisdiction on certiorari ; and that the purpose of a healing statute must be defeated in many cases where the proceed- ings are brought before the court simply for reversal of affirmance. The court does not hold that the statute takes away jurisdiction; but in the exercise of its discretion, and in order that effect may be given to the legislative intent wherever it shall be found practicable, it is proper to decline to review proceedings in this way. It will be open to all parties claiming to be aggrieved to seek redress by some ap propriate proceeding in the circuit court ; and it will gener- ally be more conducive to substantial justice that they shall so do 8 . The writ is not a flexible remedy ; all the court can do is to quash, or refuse to quash the proceedings, unless there is statutory authority to the contrary. If the com- plaining party were to resort to a suit in equity, he might be required, as a condition to any relief, to do what under the circumstances appeared to be just; and if he is injured only to the extent of a part of his taxes, he will be decreed to pay 7. Cook Land Co., etc. v 88, saying that this writ is sup- McDonald. 15 L. N. 953; Corn- posed to act as a stay of pro- gan v. Hinkley, 125 Mich. 125. ceedings; Hudson Village v. 8. Tucker v. Drain Commis- Whitney, 53 Mich. 158; See Cer- sioner, 50 Mich. 56; Dietz v. tiorari on drain proceedings, Frazer. 50 Mich. 227. Whitbeck 5424 post. v. Hudson Village, 50 Mich. 86, 423 THE LAW OF TAXATION 604 the remainder. He may also be required to deposit the amount of the tax, or to give security for it, before the pro- ceedings of the officer are stayed; and the court has ample power to do complete justice between the party complaining and the public where all the facts are before it. But there is nothing so flexible in the remedy by certiorari ; and under the operation of its rigid rules, if it is made use of in tax cases, the complaining party may perhaps escape a public burden where justice may require that he should bear it; and even if he were justly relieved from a wrongful burden, the mischief introduced by his writ would be likely to be greater than those it would cure; and public improvements which were generally desired, might be stopped on the com- plaint of a single party concerned whose injury, if any, may be insignificant. This writ will lie, however, to review the apportionment of monies between counties, where a new county has been set off from an old county 9 . 423. Certiorari In Re Special Assessment. The court does not favor certiorari in these cases to re- view tax proceedings. The use of this writ in tax cases may be very troublesome. It may be allowed even by a cir- cuit court commissioner ; its issuance strays proceedings, and endless confusion may result. There may be difficulty in obtaining a full return; and the return is binding. The rights of the parties must be settled by rigid rules, whereas equity often in justice requires flexible rules. Drain eases are somewhat different in that the proceedings often seek to appropriate part of the petitioners property. Moreover, the legislature has seen fit to provide that remedy in drain cases 10 . 9. Alcona County v. White, 10. Whitbeck v. Hudson Vil- 54 Mich. 503. lage, 50 Mich. 86. ACTIONS AT LAW 424 424. Certiorari. In Re Drain Proceedings. The common law writ of certiorari lies when the defects are jurisdictional 11 ; but it will not lie unless it was an im- possibility to take out the statutory writ in the ten days pro- vided by statute 12 . The proceedings upon each drain form a separate action, and must be reviewed separately. The pro- ceedings upon two drains cannot be reviewed upon one writ 13 ; nor will the court exercise original jurisdiction 14 . The return to the writ is conclusive 15 ; and objections not stated in the petition will not be noticed 18 . Certiorari is not the only remedy for jurisdictional defects; a bill in equity will also lie 17 . When the writ is brought to review the proceedings of a drain in two counties, both commissioners should be made parties 18 . Where, however, the writ was to review the appeal to the township board on an assessment, the commissioner of the other county is not a necessary party 19 . A party injured by the determination of the pro- bate court because of alleged lack of jurisdiction, should take the statutory writ and not file a bill inequity 20 . Where no fraud is shown and the parties have notice of the pro- ceedings certiorari is the only remedy 21 . A person who has 11. C. L. 84346; Brady v. Mich. 659. Hay ward, 114 Mich. 326, 328; 1. Clark v. Drain Com'r, 50 Null v. Zicrle, 52 Mich. 540; Mich. 618; Smith v. Bd. of Bixby v. Goss, 54 Mich. 551; Sup'rs, 115 Mich. 202. Whiteford Twp. v. Probate 17. Tomlin v. Newcomb, 70 Judge, 53 Mich. 130, 134. Mich. 358. 12. Blumfield Twp. v. Brown, 18. Duflo v. Lillibridge, 114 130 Mich. 504. Mich. 350. 13. Dickinson v. Van Worm- 19. Thomas v. Walker Twp. er, 39 Mich. 141. 116 Mich. 597. 14. Tucker v. Parker, 50 20. Strack v. Miller, 10 L, N. Mich. 5; Dietz v. Frazer, 50 460, 134 Mich. 311. Where a Mil Mich. 227. is filed, demurrer will lie, Crn- 15. People v. Leavitt, 41 dall v. McElheny, 146 Mich. 191; Mich. 470; Smith v. Board of Auditor General v. Bolt. 147 Mich. Supervisors, 115 Mich. 202; 283. Hackett v. Brown, 128 Mich. 21. Hackett v. Brown, 1*8 141; Patterson v. Mead, 138 Mich. 141. 425 THE LAW OF TAXATION 606 purchased land pending condemnation proceedings with a knowledge of the same, and who has neglected to notify the commissioner of his interest, cannot thereafter intervene, and is not entitled to this writ 22 . Where a petition was filed Nov. 26 and noticed for hearing on Dec. 1, it was sufficient though a holiday intervened 23 . 425. Time of Bringing Writ of Certiorari. The common law writ lies for jurisdictional defects, as before pointed out, and should be brought as soon as pos- sible after knowledge of the facts. Ten months is held not an unreasonable delay 24 . A plaintiff may sue out the writ as soon as he discovers his damage, which might be some time after the proceedings had; as where a drain lowered a lake, when it had been represented that it would not 25 . The statutory certiorari must be brought within ten days after the filing of the final order with the county clerk 26 . Where the contestants did not seek this remedy, but delayed over four months and then filed a bill in equity, they were held guilty of laches which barred their right to review defects either in equity or by certiorari 27 . At common law the writ is not one of right but rests in the sound discretion of the court, to be allowed or not, as best promotes the ends of jus- tice. One who keeps silent to the injury of the public and his neighbors might well be estopped by his own inaction. 22. Clinton Twp. v. Leachout, v. McCormick, 150 Mich. 232. 150 Mich. 124. 27. Swan Creek Twp. v. 23. Lichley v. Bishop, 150 Brown, 130 Mich. 382, 335; Horn Mich. 256. v. Livingston Co. Board, 135 24. Harbaugh v. Martin, 30 Mich. 553 ; Crandall v. McElheny, Mich. 234. 146 Mich. 191; Auditor General 25. Wright v. Drain Com'r, 44 v. Crane, 152 Mich. 94, holding Mich. 557; Burnett v. Scully, 50 that the non-filing of the papers Mich. 374. did not suspend the remedy. 26. C. L. 4346; Grandchamp ACTIONS AT LAW His conduct is opposed to natural justice. To avoid such loss to the public and injury to individuals, the legislature has aimed to settle finally and forever all questions relating to the establishment of drains, before the distinct branch of construction and taxation should be entered upon. The pur- pose is wise and beneficial and the law should be applied as effectually as possible 28 . When the final order is not signed, the common law writ of certiorari may be brought at any time thereafter though the drain may be partially con- structed 29 . The statutory provision requiring the writ to be issued within two years was not intended to, and did not, take away the discretionary power of the court. An unex- plained, unreasonable delay in suing out the writ is fatal 80 . The statutory provision as to bringing certiorari within ten days after the final order is filed, 3, Chap. 5, Act 272 of Public Acts of 1890, does not apply to defects which did not occur until after that time 31 . Where a party has neglected to take the statutory remedies in the absence of fraud, a bill will not lie except for defects occtiring thereafter. Where a party does not appear before the board of review he cannot thereafter complain of his assessment, or the afct that lands benefited were omitted. The fact that the assessment roll was not signed becomes immaterial after the drain is con- structed 82 . The fact that a petition is defective does not justify equitable interference; but where a non-resident has no actual notice, and the notice as published is not in accord- ance with the statute a bill will lie 88 . 28. Moore v. Mclntyre, 110 Mich. 544; Chandler v. Heiscr. Mich. 237, 239. 15 L. N. 333, Mich. 29. Loree v. Smith, 100 Mich. 32. Jones v. Gable, 150 Mich. 252, 255. 30; Grandschamp v. McCor- 30. In re Lantis, 9 Mich. 323. mick, 150 Mich. 232: McElheney The delay was 11 months. Bres- v. Drain Com'r., 146 Mich. 191. ler v. Drain Com'r, 46 Mich. 335. 33. Hoffman v. Shell, 151 The delay was 8 months. Mich. 669. 31. Kenyon v. Ionia Board, 138 425 THE LAW OF TAXATION 608 Statutory Provisions. 3 of Chap. 5 of Act No. 227 of Public Acts of 1885, provides for the taking of certiorari on giving notice to take the same within ten days after the mak- ing of the final order. It would seem that this notice of certiorari contemplated that the application should be made within ten days. 3 of Chap. 5 of Act fto. 254. of Public Acts of 1897, provides that the notice of taking the certiorari shall be given within 10 days after the filing of a copy of the final order with the county clerk, and that the proceedings shall be such as is used in certiorari from justice courts. 3 of Chap. 5 of Art 272 of Public Acts of 1899, provide that "notice of such certiorari shall be served upon the county drain commissioner within ten days after the copy of the final order of determination of such commissioner in establishing any drain has been filed with the county clerk as provided in 1 of Chap. 4, in the same manner as notice is required to be given of certiorari for reviewing judgments rendered by jus- tices of the peace.* * * Provided, no court shall allow any certiorari questioning the legality of any drain by any person unless notice has been given to the county drain commissioner in accordance with the pro- visions of this chapter." This act further provides that if no certiorari be brought within the time prescribed, the drain shall be deemed to have been legally established, and its legality shall not thereafter be questioned in any suit at law or equity. .<: ACTIONS AT LAW 426, 427, 1 426. Certiorari. Injury. A plaintiff in certiorari cannot ask the court to relieve him unless' it appear that the proceedings may damage him. A possible injury to another party does not justify the unin- jured party in suing out this writ 34 . Neither can a plain- tiff set up a third persons damage as ground of relief to himself 86 . A return that a drain will not divert the water to the injury of the plaintiff is final and conclusive 3 *. Issues of fact cannot be found upon the return and tried by the court 87 . 427. Certiorari. Collateral Actions. A pending proceeding in equity is not a bar to legal pro- ceedings, since they may go on at the same time in aid ol the relief, without confusion. If there are any objections, they usually apply in equity rather than law, and should be set up there 38 . 428. Certiorari. Errors Not Cured by Return. The return cannot set up facts to cure jurisdictional de- fects in the record 39 . Thus, a return that the commissioner gave the notice required by statute is a nullity 40 . When, 34. C. L. 84370; Morse v. Wil- 36. Hackctt v. Brown, 118 Hams, 92 Mich. 250; Davidson v. Mich. 141, 143. Otis. 24 Mich. 23. In Wolpert v. 37. Licklcy v. Bishopp, 150 Newcome, 106 Mich. 357, 360, it Mich. 256. is held that lack of service of cita- 38. Robertson v. Baxter, 57 ton upon a third party cannot br Mich. 127. set up by plaintiff. Hauser v. 39. Harbaugh v. Martin, 30 Burbank, 117 Mich. 463. Mich. 234. 35. In Berry v. Tinsman, 10S 40. Wright v. Drain Com'r, 44 Mich. 672, the plaintiff set up the Mich. 557; Dickinson v. Van diversion of water from another Wormer, 39 Mich. 141 ; Lane v. drain, in which last drain he had Burnap, 39 Mich. 736, 739; Tire- no interest. In Brady v. Hay- man v. Drain Com'r, 40 Mich. ward, 114 Mich. 326, 334, the 175; Goldsmith v. Highway plaintiff was not allowed to avail Com'r, 14 Mich. 528; Dupont v. himself of the fact that some Highway Com'r.. 28 Mich. 362. other party had not released. 429 THE LAW OF TAXATION 610 however, the affidavit for the writ has used general allega- tions of infirmities, and also set up special objections, and there was no special objection to the notice of sale, a state- ment in the return that due notice was given is sufficient 41 . 429. Certiorari. Explanations in Return. The return may show that a drain will not divert water to the injury of plaintiff 42 ; that the citation was served by a competent person 43 ; that the special commissioners were not interested in the proposed drain 44 ; that on a petition to deepen, the commissioner in fact only cleaned out a drain, as excusing the giving of personal notice of the assessment 45 ; that the plaintiff could not object to the proceedings of the jury because the extension of the drain over his land had been abandoned 46 ; that the equities a're against the appli- cant for the writ, and that a wife, joining with her husband, can stand in no better position than he, although she holds title to pa*rt of the land affected 47 . The return is not neces- sarily conclusive which do not go to the merits of the peti- tion, but are made merely as an excuse for delay 48 . In making a return of the record, it should consist of a full and complete transcript of the proceedings of which a review is sought, since the trial is had by an inspection of the record as returned, and not on any issue of fact. Although the command of the writ is the inferior court or tribunal shall send up its record, still, a transcript should be returned, un- less there is an unmistakable command made, to suit the 41. Davidson v. Otis, 24 Mich. 45. Lanning v. Palmer, 117 23. Mich. 529, 531. 42. Hackett v. Brown, 128 46. Maybe v. Miner, 45 Mich. Mich., 141, 143. 568. 43. Wolpert v. Newcome, 106 47. Roediger v. Drain Com'f., Mich. 357, 361. 40 Mich. 475. 44. Roberts v. Smith, 115 48. Burnett v. Scully, 56 Mich Mich. 5, 9. 374. 611 ACTIONS AT LAW exigencies of the case, that the record itself should be sent up and not a transcript, in which case the writ must be obeyed literally. For making this return, the probate judge is only entitled to $2.00, since the drain law makes it his duty to perform all services in connection with drains, in this respect, for that sum, and it is in accordance with the prac- tice of certiorari from justice courts 49 . 49. Patcrson v. Calhoun Judge, 114 Mich. 416. CHAPTER XXV. EQUITABLE ACTIONS. 430. Equity Jurisdiction over Drain Tax. 431. Equity Jurisdiction over Special Assessments 432. Legislative Regulation of Injunction. 433. Jurisdiction, as Affected by Amount. 434. Injunction to Restrain Waste. 435. Injunction Restraining Expenditures. 436. Restraining Collection cf Tax. 437. Restraining Sale of Land. 438. What Constitutes a Cloud on Title. 439. Bill to Quiet Title. 440. Bill to Quiet Title Against Drain Tax. 430. Equity Jurisdiction Over Drain Tax. A court of chancery cannot put itself in the place of the constitutional inquest and judge for itself upon all things which it was for that tribunal to dispose of. The constitu- tion has confided certain matters entirely to the inquest. Moreover, the necessary law of procedure has always broadly distinguished between what one jurisdiction may do collaterally with the proceedings of another, and what may be done when the second process is in the nature of an appeal against the earlier one. The exercise of eminent domain is not a head of equity jurisprudence, and the neces- sity of taking property and the ascertainment of damages are not cognizable by a bill in equity brought to annul the proceedings of the proper tribunal, and the sort of discretion possessed by the inquest cannot be revised and ruled in a case of this nature. This is not a proper remedy to review 613 EQUITABLE ACTIONS ? I ''" questions of regularity or charges of error in the drain com- missioners proceeding not affecting jurisdiction 80 . Upon the same principle, the equity court will not review the merits of the assessment 81 . The equity court has no jurisdiction because of alleged defects in the petition for the drain, to restrain the commissioner from applying to the probate court for the appointment of special commissioners, unless a tres- pass is threatened. The probate court should first pass upon these defects, and then the aggrieved party should seek his remedy by the statutory certiorari 52 . The chancery court has no power to review the determina- tion as to the necessity of a drain 58 ; nor to review the assess- ment for benefits. The finding and determination of the special tribunals appointed for these purposes are final 54 . The court, however, will review the action of the assessing or reviewing officers, for fraud ; as where the parties in in- terest are denied an open hearing, and lands benefited are omitted from the assessment roll 55 . Equity will not, how- ever, have jurisdiction except where some constitutional right is invaded. Certiorari would be the proper remedy 58 . A bill will lie where complainant has no actual notice of the proceedings, and the notice required by statute was not pub- lished 57 . 50. See 425 as to when cer- 87. tiorari and not bill must be 55. Huddlemeyer v. Dickenson. brought. Clark v. Drain Com'r, 143 Mich. 250. 80 Mich. 618, 619. 58. Clarence Twp. v. Dicken- 51. Smith v. Carlow, 114 Mich. son. 151 Mich. 270, where it was 67. claimed that there were insufficient 52. Strack v. Miller, 134 Mich, signers on the petition. Certiorari 311. at the proper time was the proper 53. See Necessity 8258 supra, remedy. Swan Creek Twp. v. Brown, 130 57. Hoffman v. Shell, 151 Mich. Mich. 382, 385 ; Clark v. Drain 669 ; Hinkley v. Bishop, 152 Mich Com'r., 50 Mich. 618. 256. 54. Smith v. Carlow, 114 Mich. 431,432 THE LAW OF TAXATION 614 431. Equity Jurisdiction Over Special Assessments. In general, the court will leave a party to his remedy at law where the assessing party has jurisdiction to impose the tax 68 . Where, however, the tax is illegal, and is made a lien upon the land, a bill to quiet title will lie 69 . The at- torney general may intervene, by a bill, and restrain the municipality from entering into an illegal contract. When he does intervene, the abuse should be of a substantial nature, and not of a character merely technical or unimportant. It should appear that the public has a substantial interest in the question ; that the right involved is not merely a private right; and where the complaint is against the misuse of, or misappropriation of funds, that it be more than a nominal sum, something which it would not be beneath the dignity of the state to take notice of, and protect by such proceed- ings 60 . The fact that the contract in unperformed, or partly performed, will not avoid the tax 61 . Tax payers have a right to file a bill to enjoin the construction of a public work and rescind the sale of bonds therefor, without acting through the attorney general 62 . A bill will lie to restrain illegal proceedings to establish a sewer district before the tax is ordered spread. Such delay might result in an estoppel that would bar complainant of his action 63 . 432. Legislative Regulation of Injunction. The legislature may limit the use of this process and pre- scribe the court or procedure, within constitutional limita- 58. See Collateral attack, 455, est bidder affords such grounds, post. Williams v. Detroit, 2 61. Motz v. Detroit, 18 Mich. Mich. 560. 515; Dixon v. Detroit, 86 Mich. 59. Thomas v. Gain, 35 Mich., 516; Cass Farm Co. v. Detroit, 155. 124 Mich. 426. 60. Attorney General v. De- 62. River Rouge v. Judge, 147 troit, 26 Mich. 163, 267 ; where it is Mich. 204. held that ignoring tfie statute and 63. Thayer Lumber Co. v. not letting a contract to the low- Muskegon, 152 Mich. 59. ' 1 " EQUITABLE ACTIONS tions, by which tax matters shall be heard and determined. It has exercised this power in limiting the right to bring replevin for chattels seized to pay taxes, and has limited the right to the use of injunction* 4 . This prohibition does not extend to taxes levied prior to the passage of the act". It is, however, constitutional. It does not interfere with the power of the equity court to cancel a lien or remove a cloud from title, but does prevent it from issuing a temporary in- junction restraining the collection of the tax pending the hearing of the case. So serious have been the embarress- ments caused by an improvident use of the writ of injunc- tion, and other obstructive processes, that some legislative bodies have forbid the issuance of injunction and other writs which would delay the collection of the tax. The tax re- ferred to in the statute means that which is in a condition to be collected as a tax, and is claimed by the proper public officers to be a tax, although on the other side it is claimed to be erroneously or illegally assessed. Consequently, an alleged illegal tax falls within the inhibition of the statute 88 . The bill may still be filed to cancel the tax and remove the cloud from title, under this act; but no injunction should 64. 107, Act 153 of Public unless the tax which may or shall Acts of 1885 ; C. L. 93937, pro- be levied upon the property of any vides "no injunction shall issue to such complainant shall amount to stay proceedings for the assess- more than one hundred dollars, ment or collection of taxes under and all such suits brought shall this act." Act No. 183 of Public be dismissed by the court." This Acts of 1903 provides: "No de- act was repealed by Act No. 21ft cree shall be made or entered in of Public Acts of 1905. any suit pending, or in any suit 65. Auditor General v. losco which may be hereafter com- Judge, 58 Mich. 345; Bartlctt v. menced, in any of the circuit Austin- Western Co., 147 Mich. 58. courts in chancery in this state. 66. Eddy v. Lee Twp., 73 Mich, brought to restrain the proceed- 123, 130; Snyder v. Marks, 109 U. ings taken, or about to be taken, S. 189; U. S. v. Black, 11 Blatchf. by any officer or officers of any 23; Allen v. Bean, 8 Bias, 88; township, county or municipality, Lake Superior, etc.. Co. v. Audi- which may or shall result in a tor General. 79 Mich. 351. tax being levied upon property. 433, 434 THE LAW OF TAXATION 616 be granted. If one is allowed, it should be dissolved on motion; but the tax may be paid into court to abide the event of the suit 67 . The rule cannot be carried so far that those executing the tax laws may deliberately disregard them, and assess the whole tax upon a part only of those who are liable to pay it, and have it still a legal tax. The officers who are appointed to execute the laws are not thereby placed beyond legal control 68 . 433. Equity Jurisdiction. Amount. The jurisdiction of a court of equity depends, not upon the amount of the tax, in the absence of statutory limita- tion, but upon the value of the property affected by the tax. If the property is of one hundred dollars value or upwards, equity will entertain jurisdiction to remove a cloud from title after the tax has been levied 89 . 434. Injunction to Restrain Waste. It is competent to authorize the riling of such a bill where the taxes are unpaid. It has long been notorious in this state that owners of lands valuable mainly, if not entirely, for the timber upon them, remove their timber without the payment of taxes, and pay no taxes thereafter. Such lands are the usually sold and bid in at the tax sales by the state. The purpose of this statute is to prevent the removal of the tim- ber without payment of the tax, and thus secure to the state the revenue which is justly due from such owners. This statute applies only to wild lands 70 . The bill may be filed under this act at any time after the tax has been lawfully 67. Walsh v. King, 74 Mich., 118 Mich. 189; Fuller v. Grand 350. Rapids, 40 Mich. 395. 68. Weeks v. Milwaukee, 10 70. Act 223, Public Acts of Wis. 264. 1S89. 3 H. S- H70al ; Gtldwell 69. Dodge v. Circuit Judge, v. Ward, S3 Mich. 14. 017 EQUITABLE ACTIONS 435,436 demanded and there has been a refusal to pay. It cannot be filed until after the return of taxes unless there has been a demand 71 . It was not intended by the legislature that the imperative mandate of the statute should be defeated by a showing by affidavit that the tax could have been collected by other process, or that it was not the intention of the owners of the lands, or of the timber upon them, to commit any waste within a year, or any period; or that if they should cut what they intended to, there would still be enough value in the lands or timber to satisfy the taxes assessed against the land. A mandamus will issue, if necessary, to compel the issuance of an injunction 72 . 435. Injunction. Restraining Expenditures. Under the preponderance of authorities, a tax payer who will be injured by a threatened, imminent, illegal expenditure of public money may enjoin the same if the damage he would suffer is sufficient to confer jurisdiction upon a court of equity 73 . Any number of private citizens, if the injury of each is sufficient to give equity jurisdiction, may join in such an action since there is no reason for their bringing separate suits 74 . 436. Restraining Collection of Tax. It is a general rule that equity will not enjoin the collec- tion of a tax unless it creates a cloud upoa title, but will 71. Caldwell v. Ward, 88 Mich. 58 Mich. 416. In Miller T. 378. Grandby, 13 Mich. 540, an injunc- 72. Rossman v. Adams, 91 tion was refused where the corn- Mich. 69, 73. plainant was afraid that the board, 73. Savidge v. Spring Lake authorized to allowed certain Twp., 112 Mich. 91 ; Curtinius v. monies advanced for bounties. Grand Rapids, etc., Ry., 37 Mich, would pay other claims not COY- 583 ; Callam v. Saginaw, 50 Mich, ered by the statute. Farr v. Grand 7; Alpcna v. Circuit Judge, 97 Rapids, 112 Mich. 99; Mitchell v. Mich. 550. Negaunee, 113 Mich. 359. 74. Putnam v. Grand Rapids. 436 THE LAW OF TAXATION 618 leave the parties to their remedy at law. This is also a statutory provision, as well as one of public policy 75 . While, as a general rule, equity will not restrain the collection of a tax on personality, the remedy at law being considered ade- quate, yet, where a bill is filed to remove the lien upon land created by an invalid tax, and the same invalid tax is as- sessed upon the personal property of the complainant, a court which has obtained jurisdiction to restrain the collection of the tax upon the land may properly restrain the collection of the same tax upon the personality, upon the principle of having obtained jurisdiction of part of the subject matter, it will take cognizance of, and settle, the entire controversy 76 . It will not restrain the collection of a tax in advance of its levy 77 . There are certain exceptions to the foregoing rule where an injunction will be allowed. In case the property sought to be taken is of such a nature that the taking of a small part will destroy or greatly injure the.entire property, and likewise greatly disturb the public use and interest, as in the case of a railroad company, an injunction will lie to restrain such interference with the corporate property 78 . When a complainant comes into court seeking to restrain a sale of his lands upon a claim that the taxes are illegal, he subjects himself to the jurisdiction of the court. It is always 75. St. Johns National Bank 283, 287. v. Bingham Twp. 113 Mich. 203. 77. Miller v. Grandby, 13 This case is distinguished from 66 Mich. 5.40, 548. Mich. 273, in that the suit did not 78. L. S. & M. S. Ry. v. Grand interfere with the business of the Rapids, 102 Mich. 374; Detroit v. bank. In Hagenbuch v. Howard, Wavne Circuit Judge, 127 Mich. 34 Mich. 1, it is held that although 604 ; Hackley v. Mack, 60 Mich, the bill alleged fraud in levying 591. In Lenawee Co. Bank v. the tax on the bank stock, an in- Adrian, 66 Mich. 273, following junction would not lie. In Mears Osborn v. Bank, of U. S., 9 v. Howarth, 34 Mich. 19, it is held Wheat. 738, a levy for an illegal that as regards a personal tax, the tax upon the bank was enjoined, remedy at law is ample. the levy interfering with the busi- 76. Folkerts v. Power, 42 Mich, ness of the bank. 619 EQUITABLE ACTIONS 437 his duty in such a case to point out what amount is excessive and what is just, and pay, or offer to pay, the latter. He was personally liable for the legal taxes assessed against him, and they could have been collected by levy against his personal property. He must therefore be prepared to pay such taxes as are found legal ; and the court has power to enforce such decree by execution 79 . An officer selling per- sonal property to satisfy a tax will be bound by the same rules that he would in judicial sales in regard to the amount sold. He must not offer an unreasonable amount, nor a lot of separate property in gross, when a less amount would be sufficient. When the tax is illegal, or the owner of the property is not liable therefor, and a large amount is offered for sale, equity will enjoin the proceeding 80 . 437. Restraining Sale of Land for Taxes. Quieting Title. A bill of this nature is an appeal to the equitable considera- tion of the court and the complainant is entitled to relief only to the extent to which he would be wronged by the wrongful enforcement of the tax, and that is simply to the extent to which the taxes are illegal or excessive. He should at least offer to pay such taxes as are legal 81 . When 79. Tinsdale v. Auditor Gen- 81. Smith v. Auditor General, eral, 85 Mich. 261, 264, Law of 20 Mich. 398; Merrill v. Auditor 1885; Gamble v. Auditor General, General, 24 Mich. 170; Connors 78 Mich. 302; Sage v. Auditor v. Detroit, 41 Mich. 128; Hans- General, 72 Mich. 638. The same com v. Hinman, 29 Mich. 419. rule does not apply in a decree holding an offer to pay legal taxes of tax sale since that is essen- sufficient without a formal tender. tially a proceeding in rem, and is Gamble v. Stevens, 78 Mich. 302. under a later law. See Auditor In Clement v. Everst. 29 Mich. General v. Stiles, 83 Mich. 460, 19. where the bill only prayed to distinguished in 85 Mich. 261. restrain the illegal excess there- 80. Starr v. Shepard, 145 Mich, in specified, it was held unneces- 302, following Leaton v. Murphy, sary to make an offer to pay the 78 Mich. 77, as to the right of legal taxes. Conway v. Waverly the treasurer to sell an excessive Twp., 15 Mich. 257. amount. 438 THE LAW OF TAXATION 620 the bill does not distinguish between the legal and illegal taxes, nor offer to pay such as are just, it will be dismissed unless all of the taxes are void 82 . Where no inequality or injustice is shown in the assessment complained of, but merely technical irregularities are relied upon, a bill will not lie to restrain the tax. He who demands relief from his taxes has no standing in a court of equity unless he offers to perform that which is equitable. In such cases, the ag- grieved party will be left to his remedy at law 83 . A levy upon personal property is presumed to satisfy the tax; and until the property is sold and there is a deficiency, a bill will not lie to quiet title, as there is presumably no cloud to re- move 84 . When a number of tax payers are similarly in- jured, they may join in a bill to restrain the collection of an illegal tax 85 . A bill will lie to set aside a notice of pur- chase, and for permission to repay the amount paid by the purchaser, for the same reasons that could be set up against the issuing of a writ of assistance 86 . 438. What Constitutes a Cloud on Title. A bill to remove a cloud from title rests upon the theory that a cloud is not created by any lien that is void upon its face, since a decree of the court cannot make it more plainly void. The bill rests upon the idea that there is a latent defect or illegality 87 . A cloud upon the title is something 82. Conway v. Waverly Twp., Monday in May. 15 Mich. 257; Pillshury v. Hum- 84. Henry v. Gregory, 29 phrey, 26 Mich. 245, 248; Palmer Mich. 68. v Napoleon Twp., 16 Mich. 176; 85. Bristol v. Johnson, 34 Wager v. Bowley, 104 Mich. 39; Mich. 123; Scofield v. Lansing, Bond v. Kenoshe, 17 Wis. 288. 17 Mich. 437. 83. In Albany Mining Co. v. 86. John Duncan Land & Lum- Auditor General, 37 Mich. 391, her Co. v. Rusch, 145 Mich. 1. 397, the only irregularity com- 87. Curtiss v. East Saginaw, plained of was that the roll was 35 Mich. 508. not ready for review on the third 621 EQUITABLE ACTIONS 439 which constitutes an apparent incumbrance upon it, or an apparent defect in it ; something that shows prima facie some right of a third party, either to the whole or to some in- terest in it. An illegal tax may, or may not be, a cloud on title. If the alleged tax has no semblance to legality, if upon the face of the proceedings it is wholly unwarranted by law, or for any reason totally void, so that any person inspecting the record and comparing it with the law is at once apprised of the illegality of the tax, it would neither constitute a defect nor an apparent incumbrance, and there- fore in law, no cloud. If a tax is levied under an uncon- stitutional law, the tax payer is presumed to know the law, and that it is unconstitutional, and that consequently a tax levied thereunder is void and of no effect, and not even a cloud 88 . Where a statute makes a tax deed prima facie evi- dence of the legality of the sale, it would seem that a bill ought to lie. A tax deed under our later tax laws, upon its face, is a presumptive title to land. Nothing would ap- pear upon the face of the deed to apprise anyone that any required certificate had not been made, or that any tax was illegal. Every instrument purporting by its terms to con- vey land from the original source of title, however invalid, creates a cloud upon title if it requires extrinsic evidence to show its invalidity. Such a deed, emanating from the auditor general, would, if it did not confer an absolute title, cast a cloud upon title and materially affect the market value and salability of the land 8 *. 439. Bill to Quiet Title. Where taxes assessed upon a piece of land are illegal, and the sale of the land for such taxes would create a cloud 88. Detroit v. Martin, 34 Mich. Mich. 542, 54; Pixley r. Hug- 170, 173. gins, 15 Cal. 128; Van Wyck v. 89. Stoddard v. Prcscott, 58 Knevals, 10 U. S. 30. 439 THE LAW OF TAXATION 622 upon the title, a bill in equity will lie to remove such cloud 90 . The jurisdiction of the court depends, not upon the amount of the tax, but upon the value of the land 91 . It will lie against the purchaser of land at a void tax sale, where a decree is void upon its face 92 ; but it will not lie where the sale was void in cases where the auditor general should issue a certificate of error, or where a motion should be made to the court. In such cases, the remedy provided by statute must be followed 93 ; but where the court was with- out jurisdiction, a bill will lie 94 . A bill will lie for fraud, however, where the county treasurer informs a mortgagee that the taxes are paid, when he knows they are not, and the treasurer procures another person to bid them in 95 . Where a person buys land subject to an existing tax, it will be presumed that he received a reduction therefor in the purchase price, and he will not be heard in equity to contest such tax 96 . The statute authorizing the auditor general to file his petition in chancery 97 , does not repeal by implication, the general statute 98 , authorizing the filing of a bill to quiet title, because the question might eventually be reached on the hearing on the petition. Jurisdiction to institute suits in chancery for the removal of clouds upon title was given to 90. Detroit v. Martin, 34 Mich. 157. 170; Palmer v. Rich, 12 Mich. 93. Kneeland v. Hyman, 118 414 holding that a sale of land Mich. 56; Carpenter v. Auditor for a void tax creates a cloud General, 144 Mich. 251; Knee- tipon title when the tax deed is land v. Wood, 117 Mich. 174 ; Mc- made prima facie evidence of the Fadden v. Brady, 120 Mich. 669. regularity of the tax and sale. 94. Wagot v. Auditor General, Thomas v. Gain 35 Mich. 155; 140 Mich. 593; Rumsey v. Griffin, Harding v. Auditor General, 140 138 Mich. 413. Mich. 646; Marquette, etc., Ry. v. 95. Christian v. Soderberg, 118 Marquette, 35 Mich. 504; Simp- Mich. 47. kins v. Ward, 45 Mich. 559 ; Row- 96. Gamble v. East Saginaw, land v. Doty, Har. Ch. 3; Chaffee 43 Mich. 367. v. Detroit, 53 Mich. 573. 97. 52, Act 195 of Public 91. Fuller v. Grand Rapids, 43 Acts of 1889. Mich. 5.67. 98. H. S. 6626, C. L. 448. 92. Millard v. Truax, 99 Mich. 623 EQUITABLE ACTIONS : the holders of the legal title by the code of 1833. It was enlarged by the act of 1840 so as to give the right to owners of equitable titles. In the absence of an express provision, it cannot be held that it was the intention of the legislature to take away this important remedy, and compel land owners to wait two years or more from the time that taxes became a lien upon their lands before they can have an opportunity to contest their legality. He may file his bill prior to the time of the filing of the auditor general's petition 89 . The bill should set forth the date and description of the tax deed assailed, and show the claims of the complainant in detail 1 . The act of 1869 2 , allowing the holder of a tax title to file a bill to quiet title though the land was occupied by another, was repealed in 1882, and would not apply to a subsequent sale of the land for taxes assessed before the repeal of the act 3 . All of the rules of collateral attack apply to the decree of sale when assailed by a bill to quiet title. Unless it can be shown that the court was without jurisdic- tion to enter the decree, or substantial errors occurred after the entry thereof, this bill will not lie 4 . A bill will lie against a municipality as well as against an individual. A lien for taxes will be extinguished by adverse possession 8 . There is no statute which requires the owner of an original title, cut off in tax proceedings, to execute a release or disclaim an interest in the land. His record title is not a cloud upon the title acquired through the tax proceedings. If he is in possession of the land and refuses possession to the tax 99. Lake Superior Ship Canal Mich. 662; Tinker v. Piper, 149 Co. v. Auditor General, 79 Mich. Mich. 335. 351. 354. 4. See Decree; Carpenter T. 1. Jenks v. Hathaway, 48 Auditor General. 144 Mich. 251. Mich. 536; Flint Land Co. Lt. v. 5. Cass Farm Co. Lt. y. De- Fochtenan. 140 Mich. 341. troit, 124 Mich. 4t; Schneider v. 2. H. S. 1168. Detroit. 135 Mich. 540. 3. Goodman v. Nester. 64 440 THE LAW OF TAXATION 624 title holder, a writ of assistance issued on the footing of the original decree may be procured. If he is out of pos- session, asserting no title, he should not be amerced in costs and made to bear expense for refusing to do what he is under no obligation to do. In such a case, a bill to quiet title will not lie 6 . 440. Bill to Quiet Title Against Drain Tax. The statute makes the tax prima facie a charge against the owner of the land, which becomes a lien upon the land when the roll is delivered to the treasurer. Such a lien, when the proceedings are void, constitutes a cloud upon the title, to remove which a bill will lie 7 . 6. Triangle Land Co. v. Nes- 7. Frost v. Leatherman, 55 sen et al, 15 L. N. 1054, Mich. 33. Mich. CHAPTER XXVI. PLEADINGS, ETC 441. General Practice. 8442. Parties Complainant. 5443. Parties Complainant on Drains. 444. Parties In Re Special Assessments. 8445. Parties Defendant. 5446. Auditor General as Defendant. 8447. Parties Defendant in Drain Proceedings. 448. Averments. 8449. Amendments. 450. Amendments In Re Special Assessments. 8451. Opening Decree. 8452. Evidence Before Jury In Re Special Assessments. 8453. Collateral Attack of Tax Decree. 8454. Collateral Attack of Drain Proceedings. 6455. Collateral Attack of Special Assessments. 8456. Res Judicata. 457. Res Judicata in Drain Proceedings. 458. Evidence, Certificates, etc. 8459. Evidence, Tax Roll. 441. Practice. A bill of interpleader is not the proper proceeding to. enable a township treasurer to determine the right to a specific drain tax assessed against a specific parcel of land, when the property owners claim the tax is illegal and are suing to recover it back. The holders of drain orders on that particular drain fund have no such interest as entitles them to be made parties 1 . In order that a bill should be demurrable for the amount involved it should affirmatively appear to be less than $ 100.00 s . 1. Wallace v. Sorter, 52 Mich. 2. Gamber v. Holben. 5 Mich. 159. 335. (40) 442 THE LAW OF TAXATION 626 Statutory Provision. Act No. 183 of Public Acts of 1903, provides : "No decree shall be made or entered for the complainant in any suit pending, or in any suit which may be hereafter commenced, in any of the circuit courts in chancery in this state, brought to restrain the proceedings taken, or about to be taken, by any officer or officers of any town- ship, county, or municipality, which may or shall result in a tax being levied upon property, unless the tax which may or shall be levied upon the property of any such complainant shall amount to more than one hun- dred dollars, and all such suits brought shall be dis- missed by the court." If the assessment is illegal, a bill will lie as soon as the assessment is made, before the roll goes to the supervisor 3 . A bill, however, will not lie to restrain the commissionei from applying to the probate court for the appointment of special commissioners 4 . Equity proceedings may go on col- laterally with certiorari 5 . When, by ordinance, a munici- pality interferes with the vested right of a citizen, the remedy is by injunction and not at law, unless some overt act has been committed 6 . Where a bill of complaint is filed, and the defendant answers, and couples a demurrer with the answer, the lower court should not dispose of the case upon the demurrer alone, as that would split up the case and be liable to lead to two trials 7 . 442. Parties Complainant. Where the property of many different owners has T>een bid in by a municipality, such owners cannot join in one 3. Lindsay v. Eastwood, 72 6. Stevenson v. Muskegon, 112 Mich. 336. Mich. 72. 4. Strack v. Miller, 134 Mich. 7. Zabel v. Harshman, 68 311. Mich. 27; Gray v. Eldred, 144 5. Robertson v. Baxter, 57 Mich. 23. Mich. 127. 627 PLEADINGS, ETC. i \\ ^ action to set aside the sale. Each property owner must bring his own action. The joinder of several parties simi- larly interested in resisting a common aggressor was orig- inally allowed to save multiplying litigation, to settle once and finally the matters in contention. It was at first strictly confined to cases where the act complained of, if done, or continued, would affect every one in the same way, and would affect all, if any. It was applied in questions of com- mons in pasturage, fisheries, and similar interests, and in questions of titles, which were asserted over certain districts. It was extended on the same grounds to frauds or wrongs by corporate agents against the interests of corporators, pub- lic or private. It was finally applied to restrain taxes or assessments, in which the inhabitants of localities taxed, or the owners of lands in assessment districts, were sought to be charged for a common burden. There is no doubt thai in some of these cases the rule may have been extended somewhat beyond the time first laid down. But in all of the cases which have been well considered, there has been one cause of grievance which at the time of the filing of the bill involved some aggressive action in which all of the parties complaining were involved in precisely the same way. In such actions, if any person set up a grievance not of the same common nature with those of the rest, the bill could not be maintained 8 . Where the bill is to set aside an assess- ment, the same doctrine prevails 9 . Parties, however, sever- ally taxed but having no common interest except that of whether or not the law is valid under which they are taxed, which law applies to all of a particular class within the state, cannot join in a bill. Suits do not become of equit- 8. Brcnnan v. Bay City, 48 34; Scofield v. Lansing. 17 Mich. Mich. 238, 237. 438, 445. 9. Kcrr v. Lansing, 17 Mich. 443 THE LAW OF TAXATION 628 able cognizance simply because of their number. 10 . Where different and separate owners in a township or assessing district are assessed by the same officers or board, and the defects complained of are the same in each case, they may join in one bill 11 . Where the wife owns the real property but occupies it with her husband, both may join in a bill to restrain the collection of an illegal tax 12 . The individual stockholders of a corporation may file a bill to restrain the sale of its personal property for an illegal tax where the company itself refuses to act 13 . 443. Parties Complainant on Drains. Where the parties wait until the several taxes have be 1 come charged, and offered for sale against their specific lands, they cease to be jointly injured. The doctrine that parties may join who are similarly injured by one act, oper- ating on all precisely alike, cannot be safely extended to such cases. If the parties are not affected in all things alike, they must sue severally or not at all; and each must have a grievance which equity will redress. Where the land is offered for sale the burden no longer remains in a roll or assessment on which all are common debtors, but the charges have assumed a new shape, as individual assessments on the county roll for sale, where there is nothing to show their relative proportions. The injury to each is one to the title of a distinct and separate freeholder, for which, if large enough, he might sue individually 14 . A township, as a 10. Youngblood v. Sexton, 32 Mich. 68. Mich. 406, 411. 13. Starr v. Shepard, 145 11. Thomas v. Auditor Gen- Mich. 302. eral, 120 Mich. 535, 538; Scofield 14. Barker v. Vernon Twp., v. Lansing, 17 Mich. 436; Zabel 63 Mich. 516, 519. In Brunner v. Harshman, 68 Mich. 270. See v. Bay City, 46 Mich., 236, the restraining expenditures, 435, city had become the purchaser, supra ; Alpena v. Grcuit Judge, at a tax sale, of lands sold for 97 Mich. 550, 552. delinquent sewer tax. 12. Henry v. Gregory, 29 629 PLEADINGS, ETC. 444, 445 municipality, owns no land to be injuriously affected. It cannot maintain a bill in behalf of those land owners in the township who do claim to be injuriously affected. Each land owner may maintain a suit to determine that question, but the township cannot interfere and impose the cost of such suit upon the entire township 15 . Parties whose lands will be flooded by the construction of a drain, though their land is not traversed by it, may file a bill to enjoin its construction 1 *. 444. Parties. In a bill to set aside a tax for local improvements, the city should be made a party, as well as the auditor general, where the taxes have been returned to him; and a bill of review, after decree, will lie in behalf of the city in such a case 17 . When the jury, in a street opening case, do not make the assessment, a tax payer whose property is not taken, will not be heard to complain of the condemnation proceedings 18 . In a bill to quiet title, the municipality as well as the assess- ing officers, should be made a party 19 . 445. Parties Defendant. Chancery Proceedings. After lands have been returned delinquent, the auditor general is a necessary party to a bill with the county treas- urer; the latter only acts as the agent of the former. A contractor on a special improvement need not be made a party 20 . In a bill against a city marshal to restrain the col- lection of a tax, the city should be made a party. Where it 15. Swan Creek Twp. v. eral, 125 Mich. 621. Brown. 130 Mich. 380, 385; din- 18. Scotten v. Detroit, 10 ton Twp. v. Teachout, 150 Mich. Mich. 564. 124. 19. Thomas v. Gain, 35 Mich. 16. Smafield v. Smith, 153 155. Mich. 270. 20. Palmer v. Rich, 12 Mich. 17. Maxwell v. Auditor Gen- 414. 645 THE LAW OF TAXATION 630 was not, the bill may be so amended on the hearing 21 . A school district is a necessary party to a bill praying to re- strain a school tax; and in an extreme case the bill may be amended after the hearing in the supreme court, and before final decree is entered, making it a party 22 . When taxes set aside would be charged back to the county or township, they are necessary parties. On appeal, where the auditor general alone was made a party, the record was remanded with per- mission to amend 23 . The holder of an inchoate lien for taxes need not, but may be, made a party in partition proceed- ings 24 . But the holder of a tax title is not a proper party to a mortgage foreclosure 25 . Persons who, before suit, had conveyed away all of their interest in the premises in ques- tion should not be made defendants. The fact that parties defendant have additional claims or defenses in addition to the one from a common source, does not make a bill mul- tifarious because it seeks to dispose of all objections at onct,. If the defendants did not have one claim under one common source of title, and claimed distinct parcels of the same piece, the bill would be multifarious 26 . Persons who have severed the products of the lands held under tax deeds, or who have purchased such products, are not proper parties to a bill to set aside a tax deed. They can only be reached by original proceedings 27 . Where a defendant, in a bill to quiet title, disclaims any interest in the property, costs should not be awarded against him 28 . Where a tax purchaser has sold his 21. Thomas v. Gain, 35 Mich. 25. Hayward v. Kinney, 84 155; Maxwell v. Auditor General, Mich. 591, 600. 125 Mich. 621. 26. Hammonree v. Lott, 40 22. Folkerts v. Powers, 42 Mich. 190. Mich. 283. 27. Cook v. Hall, 123 Mich. 23. Adams v. Auditor General, 378, 385. 43 Mich. 453. 28. Munroe v. Winegar, 128 24. Eberts v. Fisher, 44 Mich. Mich. 309. 551. 631 PLEADINGS, ETC. 446 interest, the rights of the vendee can only be litigated in some original proceeding 29 . 446. Auditor General as Defendant. Where a bill is filed before sale to restrain the collection of a tax, the auditor general and county treasurer are proper parties to the bill 30 . While the auditor general may be made a party defendant when a bill is filed against the holder of a tax deed, he is not a necessary party. The statute 81 , con- templated that a sale may be vacated in a case to which he is not a party, and provides that he shall have notice of that fact 82 . In a bill to set aside a tax deed, where fraud is alleged, the auditor general is not a necessary party where the bill offers to pay the taxes. He is only interested in see- ing that the public revenue is collected, and not in sustaining the tax deed. In such a bill his jurisdiction is not ques- tioned 33 . Where the local taxes only are involved, the audi- tor general is not a necessary party 34 . Except, however, as the statute permits, a bill cannot be maintained against the auditor general in any capacity where he represents the state 35 . The auditor general is a proper party to a petition for a writ of assistance. Unless he is made a party, the state cannot be compelled to reimburse the defeated pur- chaser, if the writ should be denied 36 . Whether or not he should be made a party to a suit in ejectment, the court 29. Bending v. Auditor Gen- 32. Greenley v. Hovey, 115 eral, 137 Mich. 500. Mich. 504. 30. The right to make the 33. Christian v. Soderberg. auditor general a party seems to 118 Mich. 47. be conferred by H. S. 16626, as 34. Thomas v. Auditor Gen- amended by Act No. 260 of Pub- eral. 120 Mich. 535, 538. lie Acts of 1887; Lake Superior 35. Burrill v. Auditor General. Ship Canal Co. v. Auditor Gen- 4fi Mich. 257. eral, 79 Mich. 351, 354. 36. Newton v. Auditor Gn- 31. C. L. 83898. eral. 131 Mich. 547. 447, 448 THE LAW OF TAXATION 632 declines to determine 37 . Neither he, nor the land commis- sioner are proper parties to a bill to litigate the question of whether or not a deed to homestead land was procured by the fraud of the grantee 38 . 447. Parties Defendant on Drains. A township is not a proper party in a suit to set aside a drain tax. The tax is not a township fund, and the town- ship takes no part in the proceeding 39 . If the tax has been spread, the treasurer and the commissioner may be made de- fendants to a bill 40 . Under the law of 1859, the auditor general was a necessary party 41 . A contractor on a drain is not a proper party in a suit to set aside the proceedings 42 . Where a drain traverses two counties, both commissioners should be made parties to a suit to set aside the proceed- ings 43 . C. L. 4370, requires that the drain commissioner shall be made a party to all proceedings. This provision, however, may be waived by the parties 44 . This provision applies to an action against the collector to recover money paid under protest 45 . 448. Pleading. Averments. The complainant should point out and establish the errors and defects upon which he claims the right to have the pro- ceedings set aside ; and if he fails to do so, the court of chan- 37. Hoffman v. Silverthorn, 414. 137 Mich. 60. 42. Palmer v. Rich., 12 Mich. 38. Dixon v. Ludington, 130 414. Mich. 269. 43. Duflo v. Lillibridge, 114 39. See Liability of Town- Mich. 350. ships 293, supra. C. L. 4369. 44. Murphy v. Dobben, 137 Barker v. Vernon Twp., 63 Mich. Mich. 565. 516, 519; Emerson v. Walker 45. Godkin v. Rutterbush, 147 Twp., 63 Mich. 483. Mich. 116; construing C. L. 4370, 40. Frost v. Leatherman, 55 as amended by Act 141 of Public Mich. 33. Acts of 1899. 41. Palmer v. Rich., 12 Mich. 633 PLEADINGS, ETC. eery will not interfere but will leave him to his remedy at law. Proceedings instituted under authority of law will not be arrested upon a mere suggestion or general allegation of irregularity, nor can a corporation, upon such general alle- gation, be called upon to show that its proceedings have been in all respects regular 46 . The bill should distinctly allege the part or portion of the taxes that are illegal, and ofter to pay the balance 47 . A failure to offer to pay the cost of a tax title, in a bill to set aside a tax deed, cannot be taken advantage of by general, but a special demurrer might lie thereto 48 . No objections will be considered except those set up in the answer to the auditor general's petition 49 . 449. Practice. Amendments. It is within the discretion of the court to allow an amend- ment to a bill, even to the extent of introducing new parties defendant, at any time before the final decree 50 . It is the duty of the circuit judge to allow amendments to objections to the tax, on the hearing of the auditor general's petition 51 . 450. Amendments to Bill. It is within the discretion of the trial court, at the close of the testimony, to refuse to permit a complainant to amend his bill to show further reasons for alleging a tax invalid". 46. Williams v. Detroit, 2 man, 132 Mich. 198; Auditor Mich. 561, 573; Gamble v. East General v. Chase. 132 Mich. 630. Saginaw, 43 Mich. 367. 50. Thomas v. Gain. 35 Mich. 47. Jenks v. Hathaway, 48 155; Folkerts vs. Powers. 42 Mich. 536; Conway v. Waverly Mich. 283; Adams v. Auditor Twp., 15 Mich. 257; Pillsbury v. General. 43 Mich. 453. Humphrey. 26 Mich. 245, 248 ; 51. Auditor General v. Jenken- Palmer v. Napoleon Twp., 16 son. 90 Mich. 523. 526; Auditor Mich. 176; Wager v. Bowley. 104 General v. Chandler, 108 Mich Mich. 39. 569. 48. Greenley v. Hovey, 115 52. Walker v. Detroit. 186 Mich. 504. Mich. 6. 49. Auditor General v. Hoff- 451, 452 THE LAW OF TAXATION 634 451. Practice. Opening Decree. All owners of lands described in the auditor general's petition are parties to the proceedings, whether brought in by publication or personal service. As between any of them and the state, the court might hear them upon petition, unless a point had been reached where it had no longer authority to vacate or alter its decree. A decree on default, when not enrolled, may be opened within a reasonable time on showing an adequate excuse; and this must generally be within the sound discretion of the court. A party is not deprived of this remedy because third parties have pur- chased in reliance upon the decree. Such persons purchase at the risk that the decree may be set aside 53 . Only ques- tions raised in the lower court as assigned in the petition can be considered; but the court may allow an amendment to the petition 54 . Where a bill of review is dismissed, the lower court should award costs 55 . Leave to file a bill of review will be denied when the party delays for four years after he knew of the tax sale, though had he acted season- ably, the sale would have been set aside 56 . The court, on a petition seasonably made, may open a decree which was entered in vacation, without notice 57 . 452. Evidence Before Jury. It is improper to show that land was transferred for the purpose of speculating upon a street opening. The bare 53. Benedict v. Auditor Gen- 705. eral, 104 Mich. 267, 271; In Mor- 54. Hall v. Mann, 118 Mich, gan v. Tweedle, 119 Mich. 350, 201, 204; Baptist Church v. Rob- paying the taxes is made a condi- erts. 120 Mich. 705. tion precedent to granting relief. 55. Phelps v. O'Connor, 137 Waldron v. Auditor General, 109 Mich. 625. Mich. 231 ; Hilton v. Dumphey, 56. Brown v. Napper, 143 113 Mich. 241; Kneeland v. Mich. 636. See 399, supra. Hyman. 118 Mich. 56; Baptist 57. Hoffman v. Flint Land Co., Church vs. Roberts, 120 Mich. 144 Mich. 564. 635 PLEADINGS, ETC. ; \:>:', statement of a witness that the opening of a public street would be a public benefit does not tend to show a public necessity. The jury cannot follow its judgment in relation to values in opposition to the undisputed testimony. Where a taxing district is established, benefits from the proposed improvement cannot be taken into account in awarding dam- ages 68 . 453. Collateral Attack of Decree. The decree cannot be impeached in any collateral proceed- ings, unless the record shows upon its face a lack of juris- diction. In such a case the record is conclusive of its own verity. The distinction between cases where the validity of the record of a court of general jurisdiction is drawn in question collaterally, and those in which such record is di- rectly impeached by writ of error or bill of review, is broad and well defined. In the one case jurisdiction is presumed prinia facie, and unless the record disproves it, while in the other, if it is denied, its existence must be proved by the record itself 59 . Where the court has jurisdiction of the par- ties and the subject matter in the particular case, its judg- ment, unless reversed or annulled by some proper proceed- ings, is not open to attack or impeachment, by parties or privies, in any collateral action or proceeding whatever. The doctrine is firmly established that if the court in which the proceeding took place had jurisdiction to render the 58. Chaffee's Appeal, 56 Mich. Dumphey, 113 Mich. S41 ; Car- 244, 260. pcntcr v. Auditor General, 144 59. See Ejectment, 419. Wil- Mich. 251 ; Hoffman v. Flint Land kin v. Keith, 121 Mich. 66, 70; Co.. 144 Mich. 564, holding that Mayot v. Auditor General, 140 filing a decree in vacation did not Mich. 593; Treinble v. Long- deprive the court of jurisdiction; worth, 13 Ohio St., 431 ; Watts v. Owens v. Auditor General. 147 Bublitz, 99 Mich. 587; Rumsey v. Mich. 683. where the parties Griffin, 138 Mich. 413 ; Hilton v. waited 12 years. 453 THE LAW OF TAXATION 636 judgment which it did, no error in the proceedings which did not effect the jurisdiction k will render the proceeding void, nor can such errors be considered when brought col- laterally into question 60 . The principle is one which has been adopted in the interest, of the peace of society and the permanent security of titles. If, after the rendition of a judgment by a court of competent jurisdiction, and after the period has elapsed when ( it becomes irreversible for error, another court may, in another suit, inquire into the irregularities or errors in such judgment, there would be no end to litigation and no fixed, established rights. A judgment, though unreversed and irreversible, would no longer be a final adjudication of the rights of litigants, but the starting point from which a new litigation would spring up; acts of limitation would become useless and nugatory; purchasers on the faith of judicial process would find no protection; every right established by a, judgment would be insecure and uncertain; and a cloud would rest upon every title 61 . It is no objection to the application of this principle that the proceeding is to enforce the collection of delin- quent taxes. While great accuracy is exacted in all such proceedings, and strict rules are applied for the protection of the tax payer, this principle, forbidding the collateral as- sailment of judgment, has often been successfully invoked in actions of this nature. It has accordingly been decided that there is no sound reason why judicial proceedings for the enforcement of taxes should be exempted from its in- fluence 62 . Upon the foregoing principles, in a bill to set aside the deed of the auditor general, the complainant can- not impeach the decree by showing that the amounts marked 60. McGoon v. Scales, 9 Wall Gratt, 729. 30. 62. Driggers v. Cassady, 71 61. Lancaster v. Wilson, 27 Ala. 533. PLEADINGS, ETC. as decreed against the land were entered after the signing of the decree, though in a direct proceeding such facts could be shown 68 . Neither can the decree be attacked because state tax lands were returned and included in the auditor gen- eral's petition and sold 84 . Where one sale has been had and cancelled by the auditor general, and a second sale had un- der a new decree, the landowner cannot complain, because setting aside the first sale did not injure him but on the contrary extended his time for redemption 65 . The fact that a right ,of way, not owned by the original owner, was in- cluded in the description of the land assessed, cannot be set up collaterally to defeat the sale 66 . The charges fixed in the decree cannot be collaterally attacked, even though not correct. The auditor general cannot afterwards add charges not included in the decree, though certain statutory charges had been omitted. The.court, having had jurisdic- tion of the matter, its judgment is final unless appealed from 67 . Where the decree omits the dollar mark, the pro- ceedings have no validity and may be attacked collaterally. See 377 supra. Although the taxes have been paid by the owner, be cannot collaterally attack the decree on that ground. His remedy is to apply to the auditor general for a cancellation of the sale 68 . 63. Wilkins v. Keith, 121 Mich. 66. Blowdin v. Griffin, 133 66, 73 ; Gates v. Johnson, 121 Mich. 647. Mich. 663, 666. 67. Flint Land Co. Lt. v. God- 64. See Decree, Particulars, kin, 136 Mich. 668 ; Smith v. Audi- 190, supra. Peninsular Savings tor General, 138 Mich. 58S. Bank v. Ward, 118 Mich. 87, 93; 68. Warren v. Auditor Geti- Munroe v. Winegar, 128 Mich, eral, 131 Mich. 263; Smith r. 309. Auditor General. 138 Mich. 581; 65. Schaaf v. Auditor General. Blanchard v. Young, in Mich. 146 Mich. 504; Harrington v. 619. Dickinson, 15 L. N. 996. 454,455 THE LAW OF TAXATION 638 454. Collateral Attack of Drain Proceedings. The fact that a commissioner was disqualified to hold his office has been shown to avoid a tax levied by him 69 ; but such fact was not allowed to be shown in a collateral attack upon the drain proceedings many years later, in an attempt to then show jurisdiction in the township drain commis- sioner 70 . Defects, if they do not relate to the jurisdiction, are not reviewable collaterally 71 . 455. Collateral Attack of Special Assessments. A tax payer on a public improvement, whose property is not taken but is assessed, cannot appeal from the determina- tion of the sum to be paid for the land taken 72 .' Nor, in a street opening case, can such a tax payer assail the tax be- cause he was not given notice of the proceedings before the jury in condemning the land and awarding damages 73 . The fact that a mortgagee was not made a party to a street open- ing case does not deprive the court of jurisdiction as to the other parties, and open the proceedings to collateral attack 74 . The determination of the amount that ought to be assessed against a particular piece of property is one of those func- tions of administration which cannot be laid upon the courts. An assessment must, of necessity, deal with the entire ex- pense, and act upon all persons and property concerned. It cannot be made by separate action for each person, or each piece of land. Each person shares to some extent on the share of every one else; and any attempt at a partial de- 69. Kinyon v. Duchene, 21 72. Brown v. Saginaw, 107 Mich. 497. Mich. 643. 70. Zabel v. Harshman, 68 73. Goodrich v. Detroit, 123 Mich. 273. Mich. 559; Borgman v. Detroit, 71. Clark v. Teller, 50 Mich. 102 Mich. 261; Scotten v. Detroit, 618; Clark v. Wiles, 54 Mich. 106 Mich. 562. 323 ; Freeman v. Weeks, 48 Mich. 74. Smith v. Detroit, 120 Mich. 255. 572. PLEADINGS, ETC. : \:,>\ termination would be impracticable. The court will review such action only for fraud 75 . Upon the same principle, the court will not review the determination of a public body as to the necessity of a public improvement 7 *. Neither will the court determine whether or not an assessing officer is acting de facto, or de jure, in an action to set aside the tax 77 . 456. Res Adjudicata. \\ here an owner of land files a bill to set aside a tax deed and is defeated, he cannot thereafter, for a reason not specified in his bill to which the auditor general was a party, compel the auditor general to cancel the deed for a reason not specified in the bill, as that the court was not in session five days after the time fixed for hearing the petition before entering the decree; all matters prior to the decree are thereby foreclosed 78 . When the validity of a decree has been sustained in an application for a writ of assistance, the decree cannot thereafter, though for different reasons, be attacked in an action of ejectment. Lack of jurisdiction to enter the decree may be shown against a petition for the writ of assistance 79 . Such a bill, however, is not res jndicata as to matters occurring after the entry of the decree of sale, as a sale by the auditor general of the interest of the state in land without requiring the payment of accrued taxes 80 . The order of the court in granting or denying a writ of as- sistance is res judicata as to the validity of the title in- 75. Manistee v. Hasley, 79 77. Boehme v. Monroe Qty. Mich. 238; Powers v. Grand Rap- 106 Mich. 401. 406. ids, 98 Mich. 393 ; Nelson v. Sagi- 78. Sayers v. Auditor General, naw, 106 Mich. 659; Walker v. 124 Mich. 259. Detroit, 138 Mich. 639 ; Walker v. 79. Peters v. Youngs, 13S Detroit. 138 Mich. 539. Mich. 484; Napper v. Fitrpmtnck. 76. Shimmons v. Saginaw, 104 139 Mich. 139. Mich. 512; Davies v. Saginaw, 87 80. Conley v. Auditor General. Mich. 439. 123 Mich. 83. 457 THE LAW OF TAXATION 640 volved 81 . It does not follow, however, that because a man- damus is denied upon some application the court passed upon the merits of the application. It may have been de- nied because the relator had a manifest legal remedy, or because the court refused to exercise its discretion; and in either case, such a denial would not be decisive of the legal rights of the parties. In determining the grounds upon which an application was denied, or granted, the court is not at liberty to consult its own recollection as to the ground upon which the decision was made, but such reasons must be found in the record. If the record is silent as to the ground upon which the decision rested, a proceeding in mandamus is not res judicata as to the possible matter in- volved. While there are authorities which hold that when several issues are involved and presented, and a general judgment rendered, it will be presumed that all issues were decided in favor of the prevailing party. The weight of authority seems to be opposed to this rule, and casts upon the party asserting that such a judgment determined a par- ticular issue the burden of proving it 82 . The dismissal of a bill to quiet title will not prevent any defense at law against tax titles 83 . The finding of the probate court as to the amount of an estate subject to the inheritance tax, is not con- clusive upon the taxing officers of a district 84 . 457. Res Judicata in Drain Proceedings. Questions reviewed upon a writ of certiorari to man- damus proceedings are res judicata 85 . In two suits between 81. Newton v. Auditor Gen- 84. Port Huron v. Wright, 150 eral, 131 Mich. 547. Mich. 279. 82. Hoffman v. Silverthorn, 137 85. Smith v. Carlow, 114 Mich. Mich. 60. 67. This is the personal opinion 83. Gamble v. East Saginaw, of Justice Grant. 43 Mich. 367, 369. 'H PLEADINGS, ETC. 1 :.- the same parties, where the same question is in issue, the first suit is res jitdicata. Objections purposely withheld ii. the first suit cannot be raised in the second suit**. Wrong reasons for a right decree do not render a matter res judicata as to matters not necessary for the decree to be sustained 87 . ^458. Evidence. Certificates, Etc. A collector's receipt is an official paper, and is the evidence of the payment of the tax as between third parties** ; but such receipts are not evidence to prove a lien for taxes paid by tax title holders. This fact must be proved by the roll"". The certificate of the township clerk is no evidence of state or county taxes 90 . The supervisor's certificate on the tax roll in the treasurer's office is not evidence of the certificate on the original roll 01 . The certificate of the board of state tax commissioners is void for uncertainty where the record does not show the adjournments had 92 . 459. Evidence. Tax Roll. A tax roll, under C. L. 1871, 1016, is prima facie evi- dence of the validity of the assessments 93 . But in an action against the supervisor for directing the collection of illegal taxes, the collectors roll is not prima facie evidence of the regularity of the taxes 94 . 86. Clark v. Wiles, 54 Mich. 91. Redding v. Lamb, si Mich. 323. 318. 87. Zabel v. Harshman, 68 92. Delray Land Co. v. Spring- Midi. 273. wells Twp.. 149 Mich. 397. 88. Johnstone v. Scott, 11 93. Wattles v. Lapeer. 40 Mich Mich. 232. 624; Hood v. Judkins. 81 Mich 89. Weimer v. Porter, 42 Mich. 318. See Presumptions; Assess- 569. ment. 90. Boyce v. Sebring, 66 Mich. 94. Gark v. Axford, 5 Mich. 210. 182. (41) 459 THE LAW OF TAXATION 642 APPENDIX A. Form of Resolution Authorizing Bonds. Resolved, That it is the intention of this counsel to issue bonds in the sum of dollars, (place the amount to be raised by the city at large) pledging the faith and credit of for the payment thereof. $aid bonds shall draw Q% interest per annum, payable annually from and after the day of The principal shall be payable as follows The denomination of such bonds may be made in sums from $100.00 upwards, to suit the purchaser. It is also the intention of this counsel to issue the bonds of the said city of in the sum of Dollars (amount raised by special assessment), bearing interest at the rate of Q% per annum, payable annually, pledging the faith and credit of said city for the payment of said bonds out of the deferred payment of the assessment levied upon special district No in said city. Said bonds shall be divided into four equal parts, running 1, 2, 3, and 4 years respectively from the day of ; and all payments made on the deferred installments of the assessment of said special district No of said city shall be paid into and constitute a sinking fund for the payment of the said bonds at maturity. And the Mayor and the Clerk of this counsel are hereby authorised to pre- pare and execute such bonds, according to the foregoing terms, when the same shall have been sold after public notice given. TABLE OF CASES TABLE OF CASES [REFERENCES ARE TO SECTIONS] Adams v. Bay City, 78 Mich. 211 351, 368, 370, 375 Acton v. Blumdell, 12 M. & W. 324 315 Adams v. Auditor General, 43 Mich. 453 445, 449 Adams Co. v. Quincy, 130 111. 566 317, 344 Adkin v. Pillien, 136 Mich. 682 198 Affeld v. Detroit, 112 Mich. 560 293, 368 Aitcherson v. Huebner, 90 Mich. 643 Albany, etc., Mining Co. v. Auditor General, 37 Mich. 395 95, 98, 437 Albany v. Gibson, 12 L. N. 642, 141 Mich. 698 250. 2S5. 288, 303 Albion v. Boldt, 145 Mich. 285 20 Alcona Co. v. Auditor General, 136 Mich. 130 196, 395 Alcona Co. v. Auditor General, 138 Mich. 491 53 Alcona Co. v. White, 54 Mich. 503 125. 422 Alexander v. McClear, 146 Mich. 45 243, 258, 302 Alger v. Slaght, 64 Mich. 589 245, 291 Allen v. Bean, 8 Biss. 83 155, 43* Allen v. Cowley, J28 Mich. 530 197. 389 Allen v. Munson, 46 Mich. 138 268 Allured v. Valler. 1 12 Mich. 357 390 Allport v. Murphy, 15 L. N. 496, 153 Mich. 486 19 Alma v. Clow, 146 Mich. 443 19 Alpena v. Circuit Judge, 97 Mich. 550 443, 445 Alpena Water Co. v. Alpena, 130 Mich. 518 57 Alvord v. Collins, 20 Pick. 418 104, 138 Amberg v. Rogers, 9 Mich. 332 83, 204, 209 Ambler v. Auditor General, 38 Mich. 746 171. 407, 414 Amperse v. Kalamazoo, 75 Mich. 228, 234 15, 24 Amy v. Supervisors, 1 1 Wall. 136 153, 174 Anderson v. Courtwright, 47 Mich. 161 411. 419 Anderson v. Hill. 54 Mich. 478 3, , 169. S91. 293. 302 Anderson v. LaGrange Twp., 2 Mich. 188 169 Angell v. Courtright, 111 Mich. 223 250. 286. t88, 414 Anketell v. Hayward, 119 Mich. 525 WT. 278. S85 Applegate v. Ernst, 3 Bush. 648 164 Arnold v. Cambridge. 106 Mass. 352 817 Arnold v. Decatur Village. 29 Mich. 77 260 Ash v. People, 1 1 Mich. 347 19 Ashley v. Port Huron, 35 Mich. 296 SOS Astor v. New York, 62 N. Y. 580 .' 219, 71 Atkins v. Hinman, 2 Gilmore, 251 t Attorney General v. A. P. Cook Co.. 122 Mich. 453 54. 144 TABLE OF CASES 646 [REFERENCES ARE TO SECTIONS] Attorney General v. Bay Co., 34 Mich. 346 4, 126, 136, 238 Attorney General v. Burbank, 12 L. N., 518; 141 Mich. 438 243 Attorney General v. Burrell, 31 Mich. 25 8 Attorney General v. Detroit, 26 Mich. 263 360, 414 Attorney General v. Detroit, 153 Mich. 525 362 Attorney General v. Detroit, 113 Mich. 388 37, 59 Attorney General v. Huebner, 91 Mich. 436 24 Attorney General v. Lake Superior Ship Canal Co., 32 Mich. 233. 214 Attorney General v. McClear, 146 Mich. 45 243, 246, 302 Attorney General v. Mich. Central R. Co., 13 L. N. 552; 145 Mich. 14 32 Attorney General v. Oakman, 126 Mich. 717 113 Attorney General v. Pingree, 120 Mich. 550 6, 11 Attorney General v. Sanilac Co., 42 Mich. 72 .92, 96, 106 Attorney General v. Sanilac Co., 71 Mich. 16, 59 12, 14, 63 Attorney General v. St. Clair Co., 30 Mich. 388.. 152, 168, 171, 173, 415 Attorney General v. State Board of Assessors, 12 L. N. 910, 143 Mich. 73 32 Attorney General v. Stryker, 12 L. N. 418, 141 Mich. 437 243 Atwell v. Barnes, 109 Mich. 10 226 Atwell v. Zeliff, 26 Mich. 118 153, 159, 160, 283, 413 Auditor General v. Ayres, 109 Mich. 694 96, 102, 106 Auditor General v. Ayres, 122 Mich. 136 106 Auditor General v. Baker, 84 Mich. 113 380, 391 Auditor General v. Bay Co., 106 Mich. 662 171, 172, 212, 219, 227, 407, 414 Auditor General v. Bolt, 124 Mich. 185 171 Auditor General v. Bolt, 13 L. N. 1064, 147 Mich. 283.. 243, 251, 424 Auditor General v. Buckeye Iron Co. 132 Mich. 454 94, 222 Auditor General v. Calkins, 136 Mich. 1 338, 341, 344, 373, 375, 376 Auditor General v. Carpenter, 138 Mich. 669 143, 386 Auditor General v. Chandler, 108 Mich. 569 98, 386, 449 Auditor General v. Chase, 132 Mich. 630 322, 324, 448 Auditor General v. Clifford, 13 L. N. 127, 143 Mich. 626 143, 207 Auditor General v. Crane, 15 L. N. 110 , 152 Mich. 94 425 Auditor General v. Duluth, etc., R. Co., 116 Mich. 122 <, 117, 121, 123, 129, 223 Auditor General v. Fisher, 84 Mich. 128 318, 370 Auditor General v. Fleming, 12 L. N. 605 , 142 Mich. 12 105 Auditor General v. Flint & P. M. R. Co., 114 Mich. 682 33, 60 Auditor General v. Flint & P. M. R. Co., 119 Mich. 682 33, 60 Auditor General v. Grand Traverse Co., 73 Mich. 182 171, 172, 407 Auditor General v. Griffin, 140 Mich. 427 90, 106, 107, 108, 386, 391 Auditor General v. Guerney, 109 Mich. 472 108 Auditor General v. Hill, 97 Mich. 80 109, 236 Auditor General v. Hill, 98 Mich. 236 138, 238 Auditor General v. Hoffman, 129 Mich. 541 18, 328 Auditor General v. Hoffman, 132 Mich. 198 318, 239, 341, 355, 357, 373, 374, 448 Auditor General v. Hughitt, 132 Mich. 311 50 Auditor General v. Hutchinson, 113 Mich. 245 117, 119, 140, 174, 222, 384 647 TABLE OF CASES [REFERENCES ARE TO SECTIONS) Auditor General v. losco Judge, 58 Mich. 345 Auditor General v. Iron Co., 123 Mich. .v_'l . 92 Auditor General v. Jackson Board, 24 Mich. 237 . .110 Auditor General v. Jenkenson, 90 Mich. 523, 277 92, 96, 386, 449 Auditor General v. Kanaar, 114 Mich. 602 398 Auditor General v. Keweenaw Ass'n, 107 Mich. 405 78, 83, 176, 177, 222 Auditor General v. Lake George, etc., R. Co., 82 Mich. 420 146, 147. 164, 239, 405 Auditor General v. Longyear, 110 Mich. 223 46, 106, 116, 124. 174, 233. 241, 222 Auditor General v. McArthur, 87 Mich. 457 104, 119, 130, 138, 238 Auditor General v. McLaulin 83 Mich. 352 384 Auditor General v. Meier, 95 Mich. 127 240, 391 Auditor General v. Melze, 124 Mich. 285 226. 2* Auditor General v. Menominee Co., 89 Mich. 553 44, 45, 110 Auditor General v. Merriam, 14 L. N. 6 , 147 Mich. 630 Auditor General v. Midland Co., 84 Mich. 121 171. 199 Auditor General v. Monroe County. 36 Mich. 70 110, 171, 199, 414 Auditor General v. Newman, 135 Mich. 288 143, 196, 207 Auditor General v. Norrington, 12 L. N. 200, 140 Mich. 427 106, 107, 108, 247, 294, 386 Auditor General v. O'Connor, 83 Mich. 464 199 Auditor General v. O'Neil, 12 L. N. 1013, 143 Mich. 343 353, 356 Auditor General v. Ottawa Co., 76 Mich. 293 171, 199, 414 Auditor General v. Patterson, 122 Mich. 39 143, 212 Auditor General v. Pioneer Iron Co., 123 Mich. 521 87 Auditor General v. Prescott, 94 Mich. 190 92. 96 Auditor General v. Pulman Car Co., 934 Mich. 59 32 Auditor General v. Regents. 83 Mich. 467 58 Auditor General v. Roberts. 83 Mich. 471 107 Auditor General v. Sage Land Co., 129 Mich. 182 76 Auditor General v. Saginaw Co.. 62 Mich. 579 110. 171, 199. 407. 414 Auditor General v. Scully, 124 Mich. 285 226 Auditor General v. Sessions, 100 Mich. 343 84, 95 Auditor General v. Sherman, 136 Mich. 157 143. 197 Auditor General v. Shiawassee Co., 74 Mich. 536 170. 171, 172. 199. 217, 218. 414 Auditor General v. Slowman. 84 Mich. 118 377 Auditor General v. Smith. 125 Mich. 576 81, 359 Auditor General v. Sparrow, 116 Mich. 574 ..82, 84, 96, 99, 101. 106. 117. 119. 123. 130. 148. 161. 174, 186. S22, 223. 388 Auditor General v. Stiles. 83 Mich. 460 . . .90. 95. 149. 378. 386, 391. 43fi Auditor General v. Stoddard. 13 L. N. 1062, 147 Mich. 329... 341. 360 Auditor General v. Tubble. 146 Mich. 106 105 Auditor General v. Van Tassell. 73 Mich. 28 171. 172. 407 Auditor General v. Wiley. 89 Mich. 58 ....380, 383. 385. 388, 394. 419 Auditor General v. Williams. 94 Mich. 180 58 Auditor General v. Women's Christian Temp. Union. 119 Mich. 430 59 .Aurora Iron Co. v. Ironwood. 119 Mich. 325 96, 160 Austin v. Hyndman, 119 Mich. 615 52 TABLE OF CASES 648 [REFERENCES ARE TO SECTIONS] Averall v. Bizeau, 37 Mich. 506 23 Avery v. Dewitt, 72 Mich. 25 75 Avery v. East Saginaw, 44 Mich. 587 89, 95 Avery v. Judd, 21 Wis. 262 184 Aztec Copper Co. v. Auditor General, 128 Mich. 615 196, 200, 212, 389, 393, 399 B Baars v. Grand Rapids, 129 Mich. 572 63, 76, 78 Babcock v. Beaver Creek Twp., 64 Mich. 601 74, 158, 159, 160 Babcock v. Beaver Creek Twp., 65 Mich. 479 157, 159 Backus v. Carlton, 99 Mich. 218 173 Bacon v. Kennedy, 56 Mich. 329 341 Bacon v. Tax Commissioners, 126 Mich. 22 12, 65, 73 Bagg v. Detroit, 5 Mich. 336 325 Baiker v. Heseltine, 27 Me. 354 79 Bailey v. Haywood, 70 Mich. 188 142, 174 Bailey v. Mayor of New York, 3 Hill 531 329 Bailey v. Bay City, 11 L. N. 927, 139 Mich. 495 97, 409 Bailey v. Circuit Judge, 128 Mich. 627 24 Baisch v. Grand Rapids, 84 Mich. 666 321,337 Baker v. Big Rapids, 65 Mich. 176 157 Baker v. Union Trust Co., 129 Mich. 581 189 Bakker v. Fellows, 15 L. N. 546 , 153 Mich. 428, 250 Balch v. Detroit, 109 Mich. 251 415 Baldwin v. Ely, 66 Wis. 171 198, 199 Baldwin v. Hastings, 83 Mich. 639 57 Balfour v. Whitman, 89 Mich. 202 200 Ball v. Auditor General, 133 Mich. 521 212 Ball v. Busch, 64 Mich. 337 209, 212 Ball v. Copper Co., 118 Mich. 7 99, 205, 383, 391, 401, 404 Ball v. Harpham, 12 L. N.. 303 , 140 Mich. 661 184 Ballance v. Forsyth, 12 How. 18 185 Bangor Twp. v. Smith Trans. Co., 106 Mich. 223 49, 174, 175, 405 Bangor Twp. v. Smith Trans. Co., 112 Mich. 601 143, 405 Barhagel v. School Board, 134 Mich. 455 414 Bank v. Douglass, 3 Dill. 330 ; 68 Bank v. Kimball, 103 U. S. 735 92 Bark Tax Case, 2 Wall. 200 1 Barker v. Caldwell, 3 Minn. 94 70 Baptist Church v. Roberts, 120 Mich. 704 227, 386, 391, 398 Barker v. Vernon Twp., 63 Mich. 516 226, 258, 261, 283, 293, 304. 443, 447 Barnhard v. Whitecloud, 108 Mich. 508 158 Barmim v. Barnes, 118 Mich. 264 377, 388, 391, 394 Barstow v. Big Rapids, 56 Mich. 35 _. 75 Bartemeyer v. Iowa, 18 Wall. 129 20 Bartlett v. Austin- Western Co., 13 L. N. 940, 147 Mich. 58 432 Bateson v. Detroit, 13 L. N. 66, 143 Mich. 582 155. 157 Bateson v. Phelps, 13 L. N. 626 , 145 Mich. 605 157' l!4!> TABLE OF CASES [REFERENCES ARE TO SECTIONS) Fattle Creek Sanitarium, etc. v. Battle Creek, 138 Mich. 7 59, 155, 158. 409 Bay City v. State Treasurer, 23 Mich. 499 '.< Bay City Traction Co., etc. v. Bay City, 15 L. N. 1039 .332 Bay County v. Arenac County, 112 Mich. 105 171. .'17 Beadle v. Arnot, 13 L. N. 531 , 145 Mich. 416 Beard v. Sharrick, 67 Mich. 321 200, 211, 212. 420 Beardsley v. Ontario Bank, 31 Barb. 619 164 Beaton v. Inland Twp., 149 Mich. 558 163 Beaver Creek Twp. v. Hastings, 52 Mich. 528 113 Bechtel v. Neilson, 19 Wis. 59 133 Beck v. Finn, 122 Mich. 21 401 Beebe v. Land Com'r., 137 Mich. 48 M Beecher v. Common Council, 114 Mich. 228 73 Beecher v. Detroit, 92 Mich. 268...; 334. 351. 353, 355. 376 Beecher v. Detroit, 110 Mich. 456 63, 71 Beidler Mfg. Co. v. Muskegon. 63 Mich. 44 349 Bemis v. Boston, 14 Allen 366 94 Bench v. Otis, 25 Mich. 29 266. 268 Bending v. Auditor General, 137 Mich. 500 399, 445 Benedict v. Auditor General, 104 Mich. 269 223, 237. 385, 391, 451 Beniteau v. Detroit, 41 Mich. 116 322, 340, 343. 344, 360, 371 Benjamin v. Webster, 100 Ind. 15 25 Bennett v. Benfield, 80 Mich. 265 242 Bennett v. Drain Com'r. 56 Mich. 634 249. 267, 268, 271. 280 Bennett v. Scully. 56 Mich. 374 280, 425, 447 Berkey v. Burchard, 119 Mich. 101 197, 391, 400 Berrien Treasurer v. Bunbury, 45 Mich. 79 ..146, 152, 163, 173. 405 Berry v. Tinsman, 108 Mich. 672 248, 255, 426 Bertram v. Cook. 32 Mich. 518 188 Besse v. Crotty Village. 93 III. 180 25 Belts v. Probate Judge, 54 Mich. 608 265 Betts v. Reading. 93 Mich. 77 19. 154 Big Rapids v. Supervisors. 99 Mich. 351 347. 371 Biggs v. McKinlcy, 131 Mich. 154 24 Bills v. Belknap, 38 la. 225 133 Bills v. Goshen, 117 Ind. 226 25 Bird v. Perkins. 33 Mich. 28 46, 47, 83, 93, 100. 139. 150. 151. 153. 163.411 Bishop v. Lambert. 114 Mich. 110 120 Bixby v. Goss, 54 Mich. 521 264. 265. 375. 414 Blackstone v. Miller, 188 U. S. 189 40 Blackwood v. Van Vleit. 30 Mich. 118 184, 185, 209 Blades v. Water Co.. 122 Mich. 366 829 Blair v. Forehand. 100 Mass. 136 1S2 B'arke v. Grondin, 12 L. N. 353, 141 Mich. 104 196, 413 Blakely v. Bestor, 13 111. 713 82 Blanchard v. Powers. 42 Mich. 619 102, 234 Blanchard v. Young. 15 L. N. 254, 132 Mich. 619 4O4. 453 Bland v. Hixenbaugh, 39 la. 536 Blights Lessee v. Rochester. 7 Wheat. 548 \M Bliss v. Greeley. 45 N. Y. 671 Blodgett v. Muskegon, 60 Mich. 580 78 TABLE OF CASES 650 [REFERENCES ARE TO SECTIONS] Blondin v. Griffin, 133 Mich. 647 290, 398, 453 Bloomindale v. Chittenden, 75 Mich. 305 385 Blue Iron Mining Co. v. Negaunee, 105 Mich. 317 100, 222 Blumfield Twp. v. Brown, 130 Mich. 504 424 Board of Auditors v. Benoit, 20 Mich. 176 44 Board of Education v. Assessors, 133 Mich. 116 32 Board of Education v. Rummels, 57 Mich. 46 414 Board of Park Com'rs v. Detroit Council, 28 Mich. 228 329, 373 Board of Sup'rs v. Auditor General, 65 Mich. 408 57 Board of Sup'rs v. Judge, 111 Mich. 33 138 Board of Sup'rs v. Mentor Twp., 94 Mich. 386 10 Board of Sup'rs v. Stimson, 4 Hill 136 146 Board of Sup'rs v. Warren, 98 Mich. 144 137 Board of Water Com'rs v. Auditor General, 115 Mich. 546 58 Boardman v. Beckwith, 18 la. 292 219 Boardman v. Boozewinkle, 121 Mich. 320 184, 197, 206, 419 Boardman Twp. v. Flagg, 70 Mich. 372 152, 166 Boehme v. Monroe City, 106 Mich. 401 235, 320, 330, 333, 344, 347, 349, 350, 352, 356, 374, 438 Boehmer v. Schuylkill Co., 46 Pa. St. 452 152 Bogert v. Circuit Judge 118 Mich. 457 415 Bolton v. Williamson, 1 Brev. 181 153 Bonaparte Tax Court, 104 U. S. 594 65 Bond v. Kenoshee, 17 Wis. 288 437 Borgman v. Detroit, 102 Mich. 261 323, 339, 438 Borroughs v. Goff, 64, Mich. 464 142 Boston v. Beal, 51 Fed. R. 306 68, 147 Boston, etc., R. Co. v. Gilmore, 37 N. H. 410 . 164 Boucher v. Trembley, 12 L. N. 184, 140 Mich. 352 197, 207, 213 Boussneur v. Detroit, 15 L. N. 568, 153 Mich. 585 323, 344 Bowles v. Perrin, 47 Mich. 154 269 Bowman v. Judge, 129 Mich. 608 83 Boyce v. Auditor General, 90 Mich. 314 104, 106, 109, 114, 119, 126, 136, 137, 138, 236, 240 Boyce v. Cutler, 70 Mich. 539 77 Boyce v. Peterson, 84 Mich. 490 86, 118, 222, 414 Boyce v. Sebring, 66 Mich. 210 100, 104, 106, 136, 137, 138, 139, 142, 241, 458 Boyce v. Stevens, 86 Mich. 549 174, 405, 411 Boyd v. Conklin 54 Mich. 583 314 Boyden v. Walkley, 113 Mich. 609 306 Boynton v. Veldman, 131 Mich. 155 186, 188 Bradley v. Bander, 36 Ohio St. 28 65, 78 Bradley v. Bouchard, 85 Mich. 18 222 Bradley v. People, 4 Wall. 459 69 Bradley v. Williams, 11 L. N. 818 , 139 Mich. 230 253, 255 Brady v. Hayward, 114 Mich. 326 245, 246, 248, 250, 259, 261, 281, 282, 298, 300, 302, 424, 426 Breen v. Hyde, 130' Mich. 1 314 Brennan v. Bay City, 46 Mich. 236 442 Brennan v. Titusville, 153 U. S. 289 17 Bressler v. Ellis, 46 Mich. 335 .425 651 TABLE OF CASES [REFERENCES ARE TO SECTIONS] Brevoort v. Detroit, 24 Mich. 322 325, 359, 360 Brewster v. Springfield, 97 Mass. 152 Briggs v. Boardman, 135 Mich. 329 2S2 Briggs v. Gulick, 13 L. N. 34 , 143 Mich. 457 107, 215, 401 Bristol v. Johnson, 34 Mich. 123 153, 220, 437 Britton v. Kerry, 14 Mich. 53. Broadhead v. Milwaukee, 19 Wis. 652 4 Broadway, In Re, 63 Barb. 472 272 Brockway v. Petted, 79 Mich. >:.'() Brooks v. Arenac Twp., 71 Mich. 231 77.88,94 Brooks v. Auditor General, 119 Mich. 329 3S5, 391 Brooks v. Mangan, 86 Mich. 576 18, 19 Brown v. Avery, 119 Mich. 384 1M Brown v. Brogan, 119 Mich. 218 187 Brown v. Circuit Judge, 13 L. N. 507 , 145 Mich. 413 1C Brown v. Grand Rapids, 83 Mich. 101 94, 376 Brown v. Hackett, 128 Mich. 141 226 Brown v. Houghton Mining Co., 123 Mich. 117 389 Brown v. Knapp, 54 Mich. 132 24 Brown v. Lester, 21 Mass. 392 153. 174 Brown v. Maryland, 12 Wheat. 454 18 Brown v. Napper, 125 Mich. 157 389 Brown v. Napper, 143 Mich. 636 400, 451 Brown v. Nehmer, 128 Mich. 690 287 Brown v. Saginaw, 107 Mich. 643 353, 355, 374, 438 Brownell v. Gratiot Board, 49 Mich. 414 291 Bruggink v. Thomas, 125 Mich. 9 309 Brunner v. Bay City, 46 Mich. 236 457 Bryant v. Estabrook, 16 Neb. 222 143 Bryn Water Co. v. Merion Twp., 4 Pa. Dist. R. 157 137 Buckhaven v. Ruggles, 15 Mass. 182 44 Buel v. Irwin, 24 Mich. 145 142. 149, 420 Buhrer v. Baldwin, 137 Mich. 263 405 Bulkley v. Steward, 1 Day 133 157 Bull v. Quincy, 9 111. App. 131 t5 Bullock v. Auditor General, 12 L. N. 668, 142 Mich. 122 15 Bump v. Jepson, 106 Mich. 641 286, 290. 294, 397 Burnett v. Scully, 56 Mich. 374 280, 42.'.. 4-".' Burns v. Ford, 124 Mich. 274 381, 384, 391, 395 Burrill v. Auditor General, 46 Mich. 256 407, 446 Burroughs v. Goflf, 64 Mich. 464 79, 142. 203 Burroughs v. Saterlee, 67 la. 396 315 Burrows v. Gibson, 42 Mich. 121 84 Burt v. Auditor General, 39 Mich. 126 101, 109.236 Burton v. Tuite, 78 Mich. 363 231 Busch v. Nester, 62 Mich. 383 197 Butler v. Detroit, 43 Mich. 552 465, 331. 337, 376 Butler v. Porter, 13 Mich. 392 1M Butler v. Saginaw Board, 26 Mich. 22. .4, 223. 257. 258, 286. 291, 299,301 Butler v. Toledo, 5 Ohio St. 225 219 TABLE OF CASES 652 [REFERENCES ARE TO SECTIONS] Byles v. Genung, 52 Mich. 504 153, 411 Byles v. Golden Twp., 52 Mich. 612 293, 409 Byram v. Detroit, 50 Mich. 56 376 c Cahoon v. County, 52 N. H. 518 93 Caldwell v. Ward, 88 Mich. 376 434 Caledonia Twp. v. Rose, 94 Mich. 216 434 Callam v. Saginaw, 50 Mich. 7 7, 435 Callender v. Olcott, 1 Mich. 344 47 Camp v. Algansee Twp., 50 Mich. 4 169, 293, 409 Campau v. Detroit, 106 Mich. 414 313, 363 Campau v. Drain Commissioner, 105 Mich. 422 264 Campau v. Grosse Pointe Board, 132 Mich. 365 319, 325 Canal Co. v. Superior, 11 L. N. 835, 139 Mich. 24 354, 257, 287 Canfield, etc., Co. v. Manistee, 100 Mich. 466 157, 158, 160, 411 Carleton v. People, 10 Mich. 250 43 Carlow v. Smith, 114 Mich. 67 252, 281 Carney v. Baldwin, 95 Mich. 442 393 Carpenter v. Auditor General, 13 L. N. 160, 144 Mich. 251.. 439, 453 Carpenter v. Jones, 117 Mich. 91 244, 155, 398, 404 Carter v. Dow, 16 Wis. 298 132 Case v. Dean, 16 Mich. 12 101, 106, 114, 141, 142, 181, 209, 214, 230, 234, 238 Case v. Detroit, 129 Mich. 298 91 Case v. Skinner, 121 Mich. 206 391 Case v. Telling, 112 Mich. 689 294 Case County Board v. Porter Twp., 18 Mich. 101 169 Cass Farm Co. v. Detroit, 124 Mich. 426 322, 329, 352, 360, 362, 365, 373, 421 Cass Farm Co. v. Detroit, 11 L. N. 780, 139 Mich. 318 143, 215, 439 Cathcart v. Merritt Twp., 38 Mich. 243 291 Cedar Springs v. Schlich, 81 Mich. 405 9 Chaddock v. Day, 75 Mich. 527 18, 19 Chaffee's Appeal, 56 Mich. 244 316, 323, 435 Chaffee v. Detroit, 53 Mich. 573 435 Chamberlain v. Ahrens, 55 Mich. Ill 86, 214, 215 Chamberlain v. Forbes, 125 Mich. 86 189, 191 Chamberlain v. St. Ignace, 92 Mich. 232 107, 108 Chambers v. Durfee, 100 Mich. 653 40 Chandler v. Board of Education, 104 Mich. 492 360, 361 Chandler v. Clark, 151 Mich. 160 184 Chandler v. Heiser, 15 L. N. 333 , 153 Mich. 1 286 Chapel v. Smith, 81 Mich. 100 226, 305, 308, 309 Chapin Mining Co. v. Uddenberg, 126 Mich. 375 155 Chapman v. Drain Com'r, 49 Mich. 305 269, 273 Chapman v. Remington, 80 Mich. 552 155 Charlestown v. Commissioners, 109 Mass. 270 94 Chase v. Middletown, 123 Mich. 648 247 Chase v. Silverstone, 62 Me. 175 315 TABLE OF CASES [REFERENCES ARE TO SECTIONS] Chasemore v. Richards, 7 H. L. Cas. 349 315 Chatlield v. Wilson, 28 Vt. 49 . . 315 Chauncey v. Waso, 135 Minn. 23 Checver v. Mint Land Co. Lt., 134 Mich. 604 197, 198 Chelsea v. Holmes, 137 Mich. 195 ... 4O5 Cheboygan Board v. Mentor Twp., 94 Mich. 386 137, 138, 287 Cheboygan Co. v. Erratt, 110 Mich. 156 Chicago v. Bank, 11 111. App. 165 157 Chicago v. People, 56 111. 327 368 Chicago, etc., R. Co. v. Auditor General, 53 Mich. 79 32 Chicago, etc., R. Co. v. Com'r, 119 Mich. 135 Chicago, etc., R. Co. v. Chappell, 124 Mich. 72 261, 301, 30t Chicago, etc., R. Co. v. Ellson, 113 Mich. 30 164 Chicago, etc., R. Co. v. Mansfield. 29 Mich. 418 171 Chicago, etc., R. Co. v. Price, 138 U. S. 185 364 Chicago, etc., R. Co. v. San ford, 23 Mich 418 260, 274 Chickering v. Faile, 38 111. 342 186 Quivers v. People, 11 Mich. 43 2 Qiippewa Hardware Co. v. Atwood, 127 Mich. 339 147, 163 Chittenden v. Lansing, 120 Mich. 539 331, 363 Christian, Ex Parte, 23 Ark. 641 152 Christian v. Sodderberg, 118 Mich. 47 181, 439, 446 Church v. Nester, 126 Mich. 547 377, 385, 395, 402 Church v. Smith, 121 Mich. 97 197, 401 Church Street, In Re, 49 Barb. 455 272 Churchill v. Detroit Council, 15 L. N. 379 , 153 Mich. 93 21 Citizens' Savings Bank v. Auditor General, 123 Mich. 511.197, 401, 4O4 Citizens', etc., Co. v. Topeka, 20 Wall. 655 118 Clapp v. Hartford, 35 Mich. 66 352 Garence Twp. v. Dickenson, 14 L. N. 906 , 151 Mich. 270 430 Clark v. Oxford, 5 Mich. 182 50, 100, 413, 459 Clark v. Crane, 5 Mich. 151 100 Clark v. Drain Com'r, 50 Mich. 618 226, 249, 267, 424, 430, 444 Clark v. Fredenburg. 43 Mich. 263 152 Clark v. Hall, 19 Mich. 357 110. 221 Dark v. Mowyer, 5 Mich. 462 383 Clark v. Wiles, 54 Mich. 328 414, 444. 4S7 Clay v. Grand Rapids, 60 Mich. 451 317, 321. 324, 344 Clee v. Saunders, 74 Mich. 692 10 Clee v. Trenton. 108 Mich. 293 137 Cement v. Everest, 29 Mich. 19 43. 268. 437 Clinton Twp. v. Teachout, 14 L. N. 246, 150 Mich. 124 ..284. 425, 443 Clippinger v. Auditor General. 135 Mich. 1 155, 184 Clute v. Barron, 2 Mich. 192 181, 192 Cockburn v. Auditor General, 120 Mich. 643.158. 171. 187, 210, 212. 159 Coe v. Gregory, 53 Mich. 19 43 Coe v. Railway Co. 10 Ohio St. 372 764 Cogburn v. Hunt. 57 Mich. 681 143 Coit v. Grand Rapids, 115 Mich. 493 57. 347 Cole v. Auditor General, 132 Mich. 262 397 Cole v. Black River Falls, 57 Wis. 110 45 Cole v. Dooly. 137 Mich. 419 246. 313 TABLE OF CASES 654: [REFERENCES ARE TO SECTIONS] Cole v. Shelp, 98 Mich. 56 383, 391, 419 Coleman v. Chadwick, 80 Pa. St. 81 315 Collins v. Charters Gas Co., 131 Pa. St. 143, and 139 Pa. State 111.. 315 Collins v. Rea, 127 Mich. 273 136 Comins Twp. v. Harrisville Twp., 45 Mich. 442, 258 42, 169, 414 Commercial National Bank v. Portland, 24 Or. 188 368 Commissioner v. Hamilton Mfg. Co., 12 Allen 302 29 Commissioner v. McCombs, 56 Pa. St. 436 45 Commissioner v. Wabash R. Co., 123 Mich. 669 32 Commissioners v. Rush, 84 Mich. 154 332 Com'r of Land Office v. Auditor General, 131 Mich. 147 55, 214, 397 Common Council v. Board of Public Works, 87 Mich. 113 322, 331 Commonwealth v. Holmes, 25 Gratt. 771 152 Comstock v. Grand Rapids, 54 Mich. 641 75, 87, 94, 96 Conley v. Auditor General, 123 Mich. 83 197, 456 Conley v. McMillan, 120 Mich. 643 Conley v. St. Clair Board, 88 Mich. 245 245, 286, 296 Connecticut, etc., Ins. Co. vs. Bulte, 45 Mich. 113.. 184, 186, 189, 190, 206, 209 Connecticut, etc., Ins. Co. vs. Wood, 115 Mich. 444 196, 198, 200, 207, 212, 218, 390, 420 Connors v. Detroit, 41 Mich. 128 142, 437 Conrad v. Smith, 32 Mich. 429 244, 305 Constantine v. Albion, 14 L. N. 231 , 148 Mich. 403 376 Converse v. U. S., 21 How. 463 152 C'onway v. Taylor, 1 Black 603 26 Conway v. Waverly Twp., 15 Mich. 257 437, 448 Cook v. Auditor General, 124 Mich. 430 Cook vs. Covert, 71 Mich. 249 226, 278, 280, 284 Cook v. Hall, 123 Mich. 373 399, 445 Cook v. State, 4 Vroom. 474 59 Cook Land Co., etc., v. McDonald, 15 L. N. 953 200, 213, 402, 421 Cboley v. Waterman, 16 Mich. 366 182 Corey v. Probate Judge, 56 Mich. 524 243 Corliss v. Highland Park, 132 Mich. 152.330, 334, 344, 349, 350, 359, 368 Corliss v. Highland Park, 146 Mich. 597 330 Corning v. Masonville Twp., 74 Mich. 177 77 Corrigan v. Hinckley, 125 Mich. 125 200, 213, 402 Coulter v. Detroit, 59 Mich. 391 130 Council y. Board of Assessors, 91 Mich. 78 14, 36, 64, 66 Courtwright v. Township Clerk, 54 Mich. 182 114 Cox v. Jackson Council, 15 L. N. 330 ; 152 Mich. 630 23 Cox v. Welcher, 68 Mich. 263 157, 160 Coyle v. O'Connor, 121 Mich. 596 380 Crandall v. McElheny, 146 Mich. 191 424 Crane v. Reeder, 25 Mich. 303 194, 212 Crawfordsville v. Braden, 121 Ind. 206 8 Crittenden v. Mt. Clemens, 86 Mich. 220 67, 73, 160, 410 Crittenden v. Robertson, 13 Mich. 58 135, 219, 222 Crooks v. Whitef ord, 47 Mich. 283 100 Croskery v. Busch, 116 Mich. 288 143, 200, 212, 386, 420 Cross v. Kitts, 69 Cal. 27 315 655 TABLE OF CASES [REFERENCES ARE TO SECTIONS] Crystal Lake Twp. v. Hill, 109 Mich. 246 153 Cubit y. O'Dett, 51 Mich. 534 .305 Cummings v. Grand Rapids, 46 Mich. 150 317, 324, 333, 337. 374 Cummings Twp. v. Ogetnaw Co., 93 Mich. 314 169, 170, 414 Cummings Twp. v. Ogemaw Co., 100 Mich. 567 I7u Cummings Twp. v. State Treasurer, 7 Mich. 365 Curran v. Banks, 123 Mich. 594 . . 189 Curry v. Backus, 16 L. N. 103 403 Curry v. Larke, 15 L. N. 491; 153 Mich. 348 4O2 Curry v. Spencer, 61 N. H. 624 ; Curry v. Tawas Twp., 81 Mich. 355 25, 91, 157 Curtinius v. Railway Co., 37 Mich. 583 435 Curtis v. East Saginaw, 35 Mich. 508 438 Curtis v. Richland Twp., 56 Mich. 478 76 Curtiss v. Witt, 110 Mich. 131 153, 412 D Dahlem v. Abbott, 13 L. N. 894, 146 Mich. 605 16 Daily v. Swop, 47 Miss. 367 354 Daniels v. Long, 111 Mich. 562 113 Daniels v. Smith, 38 Mich. 660 265 Daniels v. Watertown Twp., 55 Mich. 376 100, 40 Daniels v. Watertown Twp., 61 Mich. 514 100, 2^3 Darmstaetter v. MoLooney, 45 Mich. 621 100, 101 Dart v. Woodhouse, 40 Mich. 399 70 Davidson v. Otis, 24 Mich. 23 244, 277, 428 Davies v. Saginaw, 87 Mich. 439 317, 321, 324, 344, 353, 354, 371, 438 Davis v. Campbell, 14 L, N. 828, 150 Mich. 675 368 Davis v. Frankenlust Twp., 118 Mich. 494 314 Davis v. Macey, 124 Mass. 193 78 Davis v. Ontonagon Board, 64 Mich. 404 10, 126 Dawson v. Aurelius Twp., 49 Mich. 479 169, 291, 293, 409 Dawson v. Peter, 119 Mich. 274 203, 205, 207, 209, 419 Day v: Alverson, 9 Wend. 223 205 Day v. Davey, 132 Mich. 173 210 Dayton Twp. v. Rounds, 27 Mich. 82 169 Dean v. Clinton Co. Treasurer, 13 L. N. 899, 146 Mich. 645 291 Dean v. Millard, 151 Mich. 582 305 Decatur Twp. v. Copley, 133 Mich. 546 290, 49, 238, 405 De La Cuesta v. Ins. Co. 136 Pa. St. 62 157 Dean v. Clinton County Treasurer, 146 Mich. 645 291 Deerfield Twp. v. Harper. 115 Mich. 678 48, 129, 241, 405 Defer v. Detroit, 67 Mich. 346 308. 368 Defreese v. Lake, 109 Mich. 415 154, 184, 185, 197 DeGraff v. Ramsey Co., 45 Minn. 319 157 Delapp v. Beckwith, 114 Mich. 394 35 Delray Land Co. v. Springwells Twp.. 14 L. N. 483, 149 Mich. 397 97, 232. 45ft Dennison v. Allen, 106 Mich. 295 S97, 298 Detroit v. Beecher, 75 Mich. 454 321, 323 TABLE OF CASES 656 [REFERENCES ARE TO SECTIONS] Detroit, v. Blades, 133 Mich. 249 332 Detroit v. Chapin, 112 Mich. 588 334, 353 Detroit v. Circuit Judge, 127 Mich. 604 35, 164, 436 Detroit v. Daly, 68 Mich. 503 344, 349, 350 Detroit v. Detroit City Ry., 76 Mich. 421 35 Detroit v. Detroit Mfg'rs Ry., 14 L. N. 548, 149 Mich. 530 32 Detroit v. Jacobs, 45 Mich. 395 94 Detroit v. Jepp, 52 Mich. 458 405 Detroit v. Laughna, 34 Mich. 402 7 Detroit v. Lewis, 109 Mich. 155 76 Detroit v. Lothrop Co., 136 Mich. 265 72 Detroit v. Macier, 117 Mich. 76 73 Detroit v. Mackinaw Transportation Co., 140 Mich. 174 62, 72, 94 Detroit v. Martin, 34 Mich. 170 157, 159, 438, 439 Detroit v. Mich. Paving Co., 36 Mich. 355 360, 365, 368 Detroit v. Mich. Paving Co., 58 Mich. 601 160, 410 Detroit v. Patten, 12 L. N. 980, 143 Mich. 243 73, 143, 154 Detroit v. Robinson, 42 Mich. 198 263, 36$ Detroit v. Weber, 26 Mich. 284 152 Detroit v. Weber, 29 Mich. 24 152 Detroit v. Western Union Tel. Co., 130 Mich. 479 37 Detroit Citizens' Ry. v. Detroit, 125 Mich. 673 35 Detroit, etc., Plank Road Co. v. Highland Park, 142 Mich. 326.291, 418 Detroit Fire & Ins. Co. v. Hartz, 132 Mich. 518 36 Detroit Fire & Ins. Co. v. Wood, 118 Mich. 31 197, 394, 395 Detroit & Gd. Haven R. Co. v. Com'r, 119 Mich. 132 32 Detroit, etc., School v. Detroit, 76 Mich. 521 59 Detroit Plank Road Co. v. Detroit, 81 Mich. 562 60 Detroit Savings Bank v. Detroit, 114 Mich. 81 66, 96 Detroit, etc., R. Co. v. Com'r, 118 Mich. 340 33 Detroit, etc., R. Co. vs. Detroit, 81 Mich. 561 57 Detroit, etc., R. Co., v. Detroit, 12 L. N. 315, 141 Mich. 5 72 Detroit, etc., R. Co. v. Salem, 20 Mich. 452 3, 4, 9 Detroit, etc., R. Co. v. State Tax Commission, 136 Mich. 96 ...61, 112 Detroit Street Ry. y. Guthard, 51 Mich. 180 .32, 35 Detroit Transportation Co. v. Assessors, 91 Mich. 382 *72, 75 Detroit Union Depot Co. v. Detroit, 88 Mich. 347 60 Detroit United Ry. v. State Tax Com'rs, 136 Mich. 96 32, 112 Detroit Water Com'rs v. Auditor General, 115 Mich. 546 58 Detroit Young Men's Society v. Mayor, 3, Mich. 172 59 Dewar v. People, 40 Mich. 401 15, 20, 23 Diamond Match Co. v. Ontonagon, 140 Mich. 183 116, 123, 241 Dickinson v. Detroit, 111 Mich. 480 325 Dickinson v. Van Wormer, 39 Mich. 141 260, 265, 424, 42S Dickinson v. Reynolds, 48 Mich. 158 78, 100, 149, 161, 174, 239, 241 Dietz v. Frazer, 50 Mich. 227 300, 422, 424 Divine v. Lakeview Village, 121 Mich. 433 24 Dixon v. Detroit, 86 Mich. 516 358, 362, 365, 414 Dixon v. Ludington, 130 Mich. 269 54, 190, 216, 446 Dodge v. Judge, 118 Mich. 189 9, 416, 433 Dool v. Cassopolis, 42 Mich. 547 20, 95 Doran v. Phillips, 47 Mich. 228 25, 155 TABLE OF CASES [REFERENCES ARE TO SECTIONS] Dorenberg v. Oakerman, 130 Mich. 23, 203 189 Dorgan v. Boston, 12 Allen 223 Dorr v. Boston, 6. Gray 131 Douglass v. Dangerfield, 10 Ohio St. 152 . 1 - j Downer v. Richardson, 14 L. N. 371 , 148 Mich. 596 Dox v. Postmaster General, 1 Peters 317 i.vj Drcnnan v. Beierlein, 4J> Mich. 272 96, 150, 174 Drennan v. Hertzog, 56 Mich, 467 202 Driggers v. Cassady, 71 Ala. 533 453 Dubois v. Campau, 24 Mich. 360 52, 186, 235 Duffy v. Saginaw, 106 Mich. 335 331, 337. 340, 356, 360, 374 Duflo v. Lillibridge, 114 Mich. 350 424. 447 Dumphrey v. Auditor General, 123 Mich. 354 83, 379 Dumphrey v. Hilton, 121 Mich. 315 379, 396 Dunham v. Hough, 80 Mich. 648 24 I >unlap v. Edgcrton, 30 Vt. 224 Dunnings v. Calkins, 51 Mich. 577 226, 2*9 Dun n ings v. Drain Com'r, 44 Mich. 518 , 220 Dupont v. Highway Com'r, 28 Mich. 362 L" Dwight v. Boston. 12 Allen, 316 '. 65 E East Hartford v. Hartford Bridge Co., 10 How. 511 2 East Saginaw v. County Treasurer, 44 Mich. 273 25 East Saginaw Mfg. Co. v. East Saginaw, 19 Mich. 259 9, 34. 5V Easterling v. State, 35 Mich. 210 39i Eaton v. Cheesebrough, 82 Mich. 214 4 143 Ebcrts v. Fisher, 44 Mich. 551 445 Eddy v. Granger, 28 L. R. A. (R. I.) 517 306 Edd v. Lee Twp., 73 Mich. 123 434 Edwards v. Taliafero, 34 Mich. 14 142 Edwards v. Upham, 93 Wis. 455 IK Eitel v. Foote, 39 Cal. 439 383 Eldridge v. Richmond. 120 Mich. 581 193, 384, 401 Elk Rapids Iron Co. v. Helena Twp., 117 Mich. 211 77 Elliott v. Carter, 12 L. N. 169, 140 Mich. 303 313 Elliott v. Miller, 8 Mich. 132 155 Ellsworth v. Freeman. 43 Mich. 488 200. 420 Ely v. Grand Rapids. 84 Mich. 336 333 Emerson v. Walker Twp.. 63 Mich. 483 293, 447 Emi-ry v. Judge. 138 Mich. 542 313 Enke v. Lange. 90 Mich. 592 68 F.nki- v. Lange. 104 Mich. 26 68. 146 Equitable Life Ins. Co. v. Board of Education, 74 la. 176 36 Escanaba Timber Land Co. v. Rusch, 14 L. N. 24. 147 Mich. 619 198. 200. 403 Fs!..w v. Albion. 15 L. N. 608. 153 Mich. 7>0 Essex Public Road Board v. Shinkle. 140 U. S. 334 Estabrook v. Pritchard. 19 Mich. 470 15'. Kvart v. Postal. 86 Mich. 325 151 Eyri- v. Jacob, 14 Gratt. 438 40 (42) TABLE OF CASES 658 [REFERENCES ARE TO SECTIONS] F. &. F. Lumber Co. v. Thompson Twp., 12 L. N. 49, 139 Mich. 698 114 Facey v. Fuller, 13 Mich. 527 46 Fairbanks v. Kittridge, 24 Vt. 9 94 Fairbanks v. Williams, 24 Kan. 19 143 Fargo v. Auditor General, 57 Mich. 598 32 Farmers' Bank v. Bronson, 14 Mich. 361 209 Farnsworth v. Rand, 65 Me. 19 78 Farr v. Anderson, 135 Mich. 485 24 Farr v. Grand Rapids, 112 Mich. 99 120, 4?,. r > Fay v. Wood, 65 Mich. 391 98, 116, 136 Featherly v. Hoffman, 117 Mich. 42 385 Fells v. Barbour, 58 Mich. 49 100, ,189, 190, 202 Ferton v. Feller, 33 Mich. 199 50, 140, 35, 223 Fifield v. Close, 15 Mich. 505 1, 41 Finn v. Haynes, 37 Mich. 63 147 First National Bank v. St. Joseph Twp., 46 Mich. 526 48, 69, 93, 94, 96, 228 First National Bank v. Watkins, 21 Mich. 483 69, 158, 159, 40S Fitschen v. Olsen, 15 L. N. 1010 402 Fitzhugh v. Bay City, 109 Mich. 581 376 Fitzpatrick v. Weaver, 147 Mich. 382 20 Fleet v. Borland, 11 How. Pr. 389 '. 154 Fleetwood v. The City, 2 Sanf. 475 157 Fletcher v. Alcona Twp., 72 Mich. 18 51, 61, 77 Fletcher v. Post. 104 Mich. 424 77, 222, 411 Flinn v. Parsons, 60 Ind. 573 143 Flint v. Sawyer, 30 Me. 226 174 Flint Land Co. v. Auditor General, 133 Mich. 542 212, 397 Flint Land Co. v. Fochtman, 12 L. N. 171, 140 Mich. 341 439 Flint Land Co. v. Godkin, 136 Mich. 668 386, 391, 402, 453, 439 Flint Land Co. v. Gd. Rapids Terminal Ry. 14 L. N. 63, 147 Mich. 627 332 Flint & P. M. R. Co. v. Auditor General, 41 Mich. 635 125 Flint & P. M. R. Co. v. Auditor General, 114 Mich. 682 32 Flint & P. M. R. Co. v. Saginaw, Treasurer, 32 Mich. 260 179, 199 Flynn v. Detroit. 93 Mich. 590 216 Flynn v. Service! 12 L. N. 113 , 140 Mich. 121 313 Flynn Twp. v. Woolman, 133 Mich. 508 248, 255, 256, 264, 265, 277, 278 Foegan v. Carpenter, 117 Mich. 89 379 Folkerts v. Powers, 42 Mich. 283 92, 130, 436, 445, 449 Forest v. Henry, 33 Minn. 434 155 Forest v. Mayor, 13 Abbott 351 157 Forster v. Brown, 119 Mich. 86 411 Fowler v. Bebee, 9 Mass. 234 44 Fowler v. Campbell, 100 Mich. 398 79, 380, 383 Fox Est, In Re, 15 L. N. 675 . 40 Francis v. Grote, 14 Mo. App. 324 383 Frankfort Village v. Schmid, 151 Mich. 85 369 TABLE OF CASES [REFERENCES ARE TO SECTIONS] Franzees Case, 63 Mich. 396 15, 18 Frazier v. Brown, 12 Ohio St. 294 315 Freed v. Stuart, 13 L. N. 950, 147 Mich. 31 246. 295, 309 Freeman v. Weeks, 45 Mich. 255 226, 854, 307, 444 Freeman v. Weeks, 45 Mich. 336 226, 254 French v. South Arm Twp., 122 Mich. 593 '. 126 I- ri-ntz v. Klotsch, 28 Wis. 312 1 Frenchtown Twp. v. Monroe Board, 89 Mich. 204 1)6 Friedman v. Horning, 128 Mich. 606 173 Frost v. Leatherman, 55 Mich. 33 145, 249, 251, 290, 440, 447 I ui-rertein v. Richter, 15 L. N. 751 309 Fuller v. Grand Rapids, 40 Mich. 395 166, 433, 439 Fuller v. Grand Rapids, 105 Mich. 529 Fuller v. Kane, 110 Mich. 549 154 Furman St., In Re., 17 Wend. 667 325 G Gable v. Deal, 14 L. X. 734 , 150 Mich. 430 294 Cachet v. McCall, 50 Ala. 307 158 Gage v. Saginaw, 128 Mich. 682 105, 160 Gale v. Sup'r, 16 Mich. 254 135 Camber v. Holben, 5 Mich. 335 441 Gamble v. Auditor General, 78 Mich. 302 114, 117, 136, 142, 436, 437 Gamble v. East Saginaw, 43 Mich. 367 102. 234, 438, 439 Gamble v. Horr, 40 Mich. 561 205 Garner v. Wallace, 118 Mich. 387 196, 198, 203, ytn, Gantz v. Toles, 40 Mich. 725 341 Garison v. Stecle, 46 Mich. 98 24 Gartner v. Detroit, 131 Mich. 21 363 Gates v. Grand Rapids, 134 Mich. 196 317, 324. 376 Gates v. Johnson, 121 Mich. 663 222, 389. 391, 453 Gaussen v. U. S., 98 U. S. 584 15S Gay v. Baltimore, 100 U. S. 438 17 Gebhardt v. East Saginaw, 40 Mich. 336 155, 158 Georgia v. Railway Co.. 3 Woods 334 164 Gibbons v. Ogden. 9 Wheat. 205 JO. 26 Gibbs v. School Dist.. 88 Mich. 334 369 Gibson v. Com'r, 121 Mich. 49 6 Giddings v. Giddings. 70 la. 486 391 Gilchrist v. Dean, 55 Mich. 244 100 Gillett v. McLaughlin, 69 Mich. 547 226. 250. 280. 282. Gillison v. Cressman. 100 Mich. 591 249, 284, 178. 285 Gillman v. Riopelle. 18 Mich. 145 S3, 113. 214 Gladwin Twp. v. Bourrett Twp., 131 Mich. 353 169 Glass Co. v. Boston, 4 Mete. 181 157, 158 Godkin v. Corliss, 146 Mich. 507 163 Godkin v. Ruttcrbush, 13 L. N. 978, 147 Mich. 116 447 Godkin v. Doyle Twp., 12 L. N. 968. 143 Mich. 236 158. 166 Goegal v. Iffla. 48 Hunn. 21 390 Goldsmith v. Highway Com'r. 14 Mich. 528 4t TABLE OF CASES 660 [REFERENCES ARE TO SECTIONS] Goldsmith v. Nankin, 15 Mich. 347 120 Goodell v. Auditor General, 12 L. N. 947, 143 Mich. 240 389 Goodman v. Nester, 64 Mich. 662 206, 210, 439 Goodrich v. Detroit, 123 Mich. 559.. 323, 334, 344, 353, 368, 371, 373,438 Goodwillie v. Detroit, 103 Mich. 283 321., 337, 376 Goss v. Vermontville Village, 44 Mich. 319 24 Goulickson v. Gjorud, 89 Mich. 8 24 Crafty v. Rushville, 107 Ind. 502 25 Graham v. King, 50 Mo. 22 384 Graham v. St. Joseph Twp., 67 Mich. 652 55, 62, 65, 74 Graham v. Water Co., 119 Mich. 652 51, 61 Grand Lodge v. New Orleans, 166 U. S. 143 34 Grand Rapids v. Blakely, 40 Mich. 367 158, 356, 409 Grand Rapids v. Braudy, 105 Mich. 670 18, 19 Grand Rapids v. De Vries, 123 Mich. 570 15 Grand Rapids v. L. S. & M. S. Ry., 130 Mich. 238 154 Grand Rapids v. Leonard, 40 Mich. 370 158, 410 Grand Rapids v. Newman, 111 Mich. 48 19 Grand Rapids v. Norman, 100 Mich. 544 18, 19 Grand Rapids v. Wellman, 85 Mich. 234, 285 106, 142, 149, 234, 405 Grand Rapids Bark, etc., Co. v. Inland Twp., 136 Mich. 121.. 61, 75, 154 Grand Rapids, etc., R. Co. v. Auditor General, 144 Mich. 77 415 Grand Rapids, etc., R. Co. v. Grand Rapids, 137 Mich. 587 37 Grand Rapids, etc., R. Co. v. Weiden, 69 Mich. 572 260 Grand Rapids Furniture Co. v. Grand Rapids, 92 Mich. 564.. 342, 353 Grandchamp v. McC'ormick, 14 L. N. 666 , 150 Mich. 232 425 Grant v. Board of Water Com'rs, 122 Mich. 694 363 Grant v. Detroit, 91 Mich. 274 331, 360 Gratoph v. Probate Judge (McGrath Mandamus Cases No. 610).. 264 Gratwick Lumber Co. v. Oscoda Co., 97 Mich. 221.. 48, 78, 88, 90, 94, 150, 235, 237, 409 Gray v. Detroit, 113 Mich. 657 155, 156, 207 Gray v. Eldred, 13 L. N. 88 , 144 Mich. 123 441 Gray v. Finn, 96 Mich. 62 163, 410 Green v. Grant, 134 Mich. 462 154 Greenjeaf v. Francis, 18 Pick. 117 315 Greenley v. Hovey, 115 Mich. 504 446, 448 Gregory v. Ann Arbor, 127 Mich. 454 339, 342, 351, 376 Gregory v. Bush, 64 Mich. 37 314 Greier v. School Dist, 57 Pa. St. 433 4, 150 Griffin v. Jackson, 13 L. N. 410, 145 Mich. 23 197, 206, 403 Griffin v. Kennedy, 14 L. N. 312 , 148 Mich. 583 318 Griswold v. Bay City, 35 Mich. 452 367 Griswold v. Union School Dist., 24 Mich. 262 95, 99 Grosbeck v. Seeley, 13 Mich. 329 216, 231 Gurd v. Auditor General, 122 Mich. 151 200, 212, 384, 397 Gwynne v. Burrell, 7 Clark & Finn, 572 152, 166 H Hackett v. Brown, 128 Mich. 141 256, 262, 278, 424, 426, 429 Hackley v. Mack, 60 Mich. 591 164, 436 661 TABLE OF CASES [REFERENCES ARE TO SECTIONS] Hagenbuck v. Howard, 34 Mich. 1 434 Haines v. Sup'rs, 87 Mich. 237 ... 189, 414 Haines v. Sup'rs, 99 Mich. 32 199, 414 Haldeman v. Bruckert, 45 Pa. St. 514 .' 313 Haley v. Alton, 152 111. 113 317, 344, 383 Hall v. Bader, 75 Mich. 316 Hall v. Collins, 117 Mich. 617 181, \S3, 193 Hall v. Kellog, 16 Mich. 135 . . j 134, 142, 230, 340, 3O4 Hall v. Mann, 118 Mich. 201 227. 385, 391, 393> Hall v. Mann, 122 Mich. 13 196 Hall v. Miller, 14 L. N. 641, 150 Mich. 300 399 Hall v. Palmer, 54 Mich. 270 IM Hall v. Perry, 72 Mich. 202 219. 228 Hall v. Slabaugh, 69 Mich. 484 226, 250, 305 Hamilton v. Ames, 74 Mich. 298 91 Hamilton v. La Anse Twp., 107 Mich. 419 124, 2S3 Hamlin v. Kassefer, 15 Or. 436 44 Hammond v. Place, 116 Mich. 629 118 Hammond v. School Board, 109 Mich. 676 27 Hammontree v. Lott, 40 Mich. 190 142, 445 Hand v. Auditor General, 124 Mich. 424 155, 15, 177, 397 Haney v. Miller, 15 L. N. 592 212 Haney v. Miller, 15 L. N. 770 285 Hanscom v. Hinman, 30 Mich. 419 78, 437 Hanson v. McCue, 42 Cal. 303 315 tfarbaugh v. Hartin, 30 Mich. 234 251, 253, 265, 295, 300, 425 Harding v. Auditor General, 136 Mich. 358 212 Harding v. Auditor General, 12 L. N. 270, 140 Mich. 646 207. 212 Harding v. Bader. 75 Mich. 315 117, 121, 123 Hardwick v. Bassett, 29 Mich. 19 44 Hardy v. Inhabitants, etc., 5 Allen 281 75 Harper v. Grand Rapids, 105 Mich. 551 365 Harrington v. Dickinson, 15 L. N. 996 387, 453 Harrington v. Fish, 10 Mich. 415 82 Harrington v. Hillard. 27 Mich. 271 143 Harrington v. Probate Judge, 15 L. N. 556 , 153 Mich. 660 274 Harrison v. Spencer, 90 Mich. 186 215 Harrison v. Spencer. 110 Mich. 215 215 Hart v. Henderson, 17 Mich. 218 Hart Twp. v. Oceana Co. 44 Mich. 417 130. 152. 170. 41S Hartford v. West Middle District. 45 Conn. 462 58. 346 Harts v. Mackinac Isl., 131 Mich. 680 83. 232 Harvey v. Bank, 119 Pa. St. 212 158 Harwood v. Drain Com'r. 51 Mich. 639 226 Hatch v. Reid, 112 Mich. 430 25, 155 Hanck. In Re, 70 Mich. 396 Si Hauser v. Burbank. 117 Mich. 463 248. 262, 278. S85. 302 Haven v. Owen. 121 Mich. 51 180, 39O Hawkeye Ins. Co. v. Board of Equalization. 75 I*. 770 38 Hawkins v. Litchfield Village. 120 Mich. 390 24 Hayden v. Qosser, 15 L. N. 395 ; 153 Mich. 182 402 Hayden v. dosser, 15 L. N. 618 402 TABLE OF CASES 662 [REFERENCES ARE TO SECTIONS] Hayden v. Foster, 13 Pick. 492 85 Hays v. Steamship Co. 17 How. 596 62 Hayward v. Auditor General, 14 L. N. 1, 147 Mich. 591 397 Hayward v. Kinney, 84 Mich. 591 445 Hayward v. O'Connor, 12 L. N. 667, 142 Mich. 230 156, 393 Hayward v. O'Connor, 13 L. N. 384, 145 Mich. 52 84, 397, 398 Hecock v. Van Dusan, SO Mich. 359 100, 139 Heinsmiller v. Hathaway, 60 Mich. 391 419 Hembling v. Big Rapids, 89 Mich. 1 375 Hendrie v. Kalthoff, 48 Mich. 306 60, 133 Henry v. Gregory, 29 Mich. 68 163, 239, 437, 442 Herrick v. Big Rapids, 53 Mich. 554, 253 75, 142, 409 Hess, v. Griggs, 43 Mich. 397 200 Hester v. Chambers, 84 Mich. 562 323, 372 Hewett v. White, 78 Mich. 117 136 Hewitt v. Week, 59 Wis. 444 197 Hickey v. Rutledge, 136 Mich. 128 51, 196, 197, 207, 413 Hickman v. Kempner, 135 Ark. 505 174 Hicks v. Perry Village, 14 L. N. 812, 151 Mich. 88 24 Highway Com'r v. Ely, 59 Mich. 173 305, 310, 311 Highway Com'r v. Sperling, 120 Mich. 493 311 Hill v. Graham, 72 Mich. 659 77, 78, 222, 411 ffill v. Warrell, 87 Mich. 135 79, 80, 341, 348 Hill v. Wright, 49 Mich. 229 411 Hilliker v. Coleman, 73 Mich. 170 312 Hilton v. Dumphey, 113 Mich. 241 1, 227, 290, 391, 393, 394, 396, 419 Hilyer v. Jonesfield Twp., 114 Mich. 644 293 Hinckley v. Bishop, 14 L. N. 820, 152 Mich. 256. . .250, 280, 282, 284, 294, 430 Hinds v. Belvedere Twp., 107 Mich. 664 92, 94 Hinds v. Probate Judge, Sup. Ct. File No 248 Hines v. Darling, 99 Mich. 47 311 Hines Lumber Co. v. Wells Twp., 12 L. N. 777, 142 Mich. 366 Hinman v. School Dist., 4 Mich. 168 127 Hobart v. Detroit, 17 Mich. 246 360 Hodgdon v. Burleigh, 4 Fed. R. 117 206 Hoffman v. Auditor General, 136 Mich. 689 155, 156, 198, 397, 415 Hoffman v. Flint Land Co., 13 L. N. 474, 144 Mich. 564 ...389, 398, 453 Hoffman v. Harrington, 28 Mich. 99 206 Hoffman v. Loud & Sons, 138 Mich. 5 205, 209, 210 Hoffman v. Loud & Sons, 111 Mich. 156 209 Hoffman v. Loud & Sons, 12 L. N. 356, 138 Mich. 5 209 Hoffman v. Lynburn, 104 Mich. 494 106, 107, 110, 123, 241 Hoffman v. Pack, Woods & Co., 123 Mich. 74 183, 196, 219, 222, 230, 232, 385, 391, 394 Hoffman v. Silverthorn, 137 Mich. 60 197, 446, 456 Hoffman v. Shell, 15 L. N. 189 , 151 Mich. 669 425, 430 Hogelskamp v. Weeks, 37 Mich. 422 100, 124, 134, 240 Holbrook v. Detroit, 8 Mich. 14 199 Holden v. Sup'rs, 77 Mich. 202 224 Holmes v. Detroit Council, 120 Mich. 226 336, 357 663 TABLE OF CASES [REFERENCES ARE TO SECTIONS] Holmes v. Loud, 14 L. N. 474 , 149 Mich. 410 198, 40* Homer Twp. v. Smith, 12 L. N. 559 , 14 Mich. 586 406 Hood v. Judkins, 61 Mich. 575 71, 171, 138, 411. 459 Hooker v. Bond, 118 Mich. 255 161, 222, 387, 388, 391, 393, 4O1. * Hopkins v. Briggs, 41 Mich. 175 ^'2C, 3O7, 414 Horn v. Livingston Co. Board, 135 Mich. 553 257, 281, 286. Hoilton v. Helenholtz. 14 L. N. 422, 149 Mich. iiJ7 197 Horton v. Ingersol, 13 Mich. 409 189 Horton v. Sailing, 15 L. N. 1114 l'.4, 197, 3!9 Horton v. Sullivan, 97 Mich. 282 3U Hough v. Auditor General, 116 Mich. 663 155, 156. 397 Houghton Co. v. Auditor General, 41 Mich. 28 155, 171, 177, 180, 407 Houghton County v. Auditor General, 36 Mich. 271 177 Houghton County y. Rees, 34 Mich. 481 17J. 177 Houseman v. Circuit Judge, 58 Mich. 367 301 Hovey v. McCracken, 81 Mich. 314 77 Howell Village v. Cassopolis, 35 Mich. 471 09 Howell Village v. Gordon, 127 Mich. 553 63, 76, 73 Hoyt v. East Saginaw, 19 Mich. 39 321, 353, 371 Hoyt v. Southard, 38 Mich. 432 .' 206, 210. 419 Hubbard v. Auditor General. 118 Mich. 255 155. 193 Hubbard v. Auditor General, 120 Mich. 505 197, 397, 415 Hubbard v. Sheppard, 117 Mich. 25 188. 225, 419 Hubbard v. Winsor, 15 Mich. 46 78, 103, 136, 149, 15 Hubble v. Robertson, 65 Mich. 538 245, 287, 417 Huddlemeyer v. Dickinson, 143 Mich. 250 284, 430 Hudson Village v. Whitney, 53 Mich. 158 ...173, 287, 410, 417, 418. 423 Hughes v. Jordan, 118 Mich. 27 161, 197 Hughes v. Recorder's Court, 74 Mich. 574 15 Humphrey v. Auditor General, 70 Mich. 292 143, 1 7'.i Hunt v. Chapin, 42 Mich. 24 138, 176. 2O5 Hunt v. Curry. 37 Ark. 104 143 Hurd v. Raymond, 50 Mich. 369 100 Huron Land Co. v. Robarge. 128 Mich. 686 213. 401 Husted v. Willoughby, 117 Mich. 56 83 Huxtable v. Kirby, 135 Mich. 157 IS4 Hyatt v. Albro, 121 Mich. 638 401 I Indiana Road Machine Co. v. Keeney. 147 Mich. 184 125, 285 Iron Mountain School v. O'Connor, 143 Mich. 35 Illinois, etc.. R. Co. v. Irwin. 72 111. 452 SS Ionia Board v. Judge, 134 Mich. 412 116 Ionia, etc.. Ins. Co. v. Judge. 100 Mich. 606 416 Ionia City v. Wehse. 117 Mich. 487 78, 405 Insurance Co. v. Allegheny, 101 Pa. St. 250 159 Ins. Co. v. Commissioner, 137 Mass. 81 .64 Ins. Co. v. New Orleans, 1 Woods 85 1? Iron Mountain School v. O'Connor, 13 L. N. 551, 14.1 Mich. 35.5*. 59 Irving v. Brownell, 11 111. 402 197 Ives v. Kimbalf, 1 Mich. 308 -'<' TABLE OF CASES 664 [REFERENCES ARE TO SECTIONS] J. E. Bartlett Co. v. Carroll, 14 L. N. 921 , 151 Mich. 233 368 Jackson v. Detroit, 10 Mich. 248 376 Jackson v. Mason, 12 L. N. 1038, 143 Mich. 355 84, 402, 403 Jackson v. Slowman, 117 Mich. 126 81, 84 Jackson v. Weinhold, 117 Mich. 305 173, 174, 224, '415 Jackson, Lansing & S. R. Co. v. Solomon Lumber Co., 13 L. N. 720, 146 Mich. 204 53, 216, 248, 397 Jackson Mining Co. v. Auditor General, 32 Mich. 488 39, 407 Jackson Tile Co. v. Snyder, 93 Mich. 325 294 Jacobs v. Detroit, 13 L. N. 544, 145 Mich. 395 74, 94 Jacobs v. Union Trust Co., 15 L. N. 913 143 Jakobowski v. Auditor General, 13 L. N. 99, 144 Mich. 46 397, 403 James v. Howard, 4 Mich. 446 153 Jeffers v. Sydham, 129 Mich. 440 154, 187 Jeffery v. Hursh, 45 Mich. 59 185 Jenison v. Conklin, 114 Mich. 9 197, 394 Jemkenson v. Auditor General, 104 Mich. 34 ..193, 212, 235, 387, 394, 398, 404 Jenks v. Hathaway, 48 Mich. 536 439, 443 Jenks v. Horton, 96 Mich. 13 52, 154 Jenney v. Mussey Twp., 121 Mich. 229 293 John Duncan Land & Lumber Co. v. Rusch, 145 Mich. 1 402. 403, 437 Johns v. People, 25 Mich. 499 46 Johnson v. Bessemer Council, 143 Mich. 313 21 Johnson v. Kimball Twp., 139 Mich. 187 151 Johnstone v. Scott, 11 Mich. 232 84, 162, 453 Joliet Bridge Co. v. Freeman, 14 L. N. 359, 149 Mich. 274 226, 281 Jones v. Commissioners, 34 Mich. 273 '. 8, 329 Jones v. Gable, 14 L. N. 623 , 150 Mich. 30 284, 296, 425 Jones v. Keep, 19 Wis. 369 '. 41 Jones v. Pelham, 84 Ala, 208 81 Jones v. Wells, 31 Mich. 170 189 Jones v. Wright, 34 Mich. 371 154 Judkins v. Reed, 48 Me. 386 94 Kahl v. Love, 37 N. J. L. 5 155 Kalamazoo v. Crawford, 15 L. N. 669 203 Kalamazoo v. Francoise, 115 Mich. 55.4 352 Kalkaska Twp. v. Fletcher, 81 Mich. 446 75 Kansas City v. Duncan, 135 Mo. 583 383 Kansas Indians, 5 Wall. 737 58 Kearney v. Kearney, 17 N. J. Eq.- 504 154 Keeley v. Saunders, 99 U. S. 441 379 Keho v. Auditor General, 138 Mich. 586 398 Kenasten v. Rikes, 146 Mich. 163 ; 15, 18, 235 Kennedy v. Auditor General, 134 Mich. 534 52, 198, 397 Kent v. Auditor General, 138 Mich. 605 155. 156, 157 C65 TABLE OF CASES [REFERENCES ARE TO SECTIONS] Kent Co. Board v. Verkerke. 128 Mich. 202 .173 Kenyon v. Baker, 16 Mich. 37:i .170 Kenyon v. Board of Sup'rs. 138 Mich. 544 ,1. .'si. 286, 188. 425 Kerr v. Lansing, 17 Mich. 34 443 Kerrigan v. People, 131 Mich. 305 Keweenaw Ass'n v. School Dist., 98 Mich. 437 . . 130 Kiley v. Bond, 114 Mich. 447 244, 264, 265, 305 King v. Harrington, 18 Mich. 213 King v. Potter, 18 Mich. 134 86, 204, 213, 490 King v. U. S., 99 U. S. 229 152. 160 Kingston v. Guck, 15 L. N. 998 215 Kinne v. Bare, 68 Mich. 625, 246, 249, 250, 256, 257, 259, 260, 263, 264, 267, 260, 278, 293 Kinne v. Bare, 80 Mich. 345 246, 251, 256. 262, 265, 966 Kinsworth v. Austin, 23 Ark. 375 .., 155 Kinyon v. Duchane, 21 Mich. 498 242. S64 Kitson v. Mayor, 26 Mich. 325 15, 89 Kneeland v. Auditor General, 113 Mich. 63 155, 199 Knceland v. Hull, 116 Mich. 55 84. 85, 204, 391 Kneeland v. Hymen, 118 Mich. 56 156, 227, 397. 398, 419, 439 Kneeland v. Wood, 117 Mich. 174 155, 156, 397, 398, 419 Knibbs v. Hall. 1 Esp. 84 157 Knowlton v. Moore, 178 U. S. 41 40 Koones v. Dist. Columbia, 4 Mackey 339 155 Koren v. Roernheld, 7 111. App. 646 39o Kress v. Probate Judge, 92 Mich. 372 274, 275, 878 Kroop v. Foreman, 31 Mich. 144 251, 257, 263, 268. 269, 273. 295 Kuhn v. Detroit Council, 70 Mich. 534 24 Kull y. Dunn, 102 Mich. 581 71 Kundinger v. Saginaw, 132 Mich. 395 321, 335. 360 t L Lacey v. Davis, 4 Mich. 140 48, 101. 103, 114, 117. 142, 185. 201, 203, 806, 209, 230. 2.1 Lacoss v. Wadsworth, 56 Mich. 421 ZO8. 21O Laing v. Forest Twp., 11 L. N. 765. 139 Mich. 159 61. 160 Laird v. Coach, 112 Mich. 628 204 L. S. & M. S. Ry. v. Grand Rapids. 102 Mich. 374 32. 34, 436 L. S. & M. S. Ry. v. People, 46 Mich. 193 32 Lake Superior, etc., Co. v. Auditor General. 79 Mich. 351. .438, 439. 446 Lake Superior, etc., Co. v. Thompson, 56 Mich. 493.. 115, 183, 124. 142. 163 Laketon Twp. v. Akeley, 74 Mich. 695 w* Lambach v. O'Meara, 107 Mich. 29 886. 887, 896, 417 Lampson v. Drain Com'r, 45 Mich. 150 863 Lampson v. Marshall, 133 Mich. 251 364, 366, 376 Lancaster v. Wilson, 27 Gratt. 729 453 Lane v. Burnap, 39 Mich. 736 265. 27, 488 Langley v. Harmon, 97 Mich. 347 361 Lanning v. Carpenter, 20 N. Y. 447 43 Lanning v. Palmer, 117 Mich. 529 886, 253. 280. 480 TABLE OF CASES 666 [REFERENCES ARE TO SECTIONS] Lansing v. State Auditors, 111 Mich. 327 58 Lansing Lumber Co. v. Judge, 108 Mich. 305 416 Lantis, In Re, 9 Mich. 324 425 Lantis v. Reithmiller, 95 Mich. 45 133, 411 Larimie Co. v. Albany Co., 92 U. S. 307 2 Lamed v. Briscoe, 62 Mich. 393 370 Latham v. Assessors, 91 Mich. 509 36, 64, 66, 94 Latimer v. Lovett, 2 Doug. 204 209 Latrobe v. Mayor, 19 Md. 13 76 Launstein v. Launstein, 14 N. 773, 150 Mich. 524 314 Laurium Village v. Miller, 129 Mich. 536 152 Leaton v. Murphy, 78 Mich. 77 165, 177, 181, 436 Ledyard v. Auditor General, 121 Mich. 56 381, 383 Lee v. Inhabitants, etc., 13 Gray 479 157 Lefevre v. Detroit, 2 Mich. 587 84, 345 Leggett v. Detroit, 137 Mich. 247 57 Leidlein v. Meyer, 95 Mich. 586 314 Leloup v. Mobile, 127 U. S. 640 15 Lemon v. Chunn, 1 Black 336 202 Lenawee Co. Savings Bank v. Adrian, 66 Mich. 273 66, 436 Lennon v. New York, 55 N. Y. 361 219 Leonard v. Detroit, 108 Mich. 599 216 Leroy v. East Saginaw, 18 Mich. 233 153, 411 Leon v. Newman, 130 N. Y. 11 379 Lever v. Grant, 139 Mich. 273 26 Lewick v. Glazier, 116 Mich. 493 119 Lewis v. Board of Education, 139 Mich. 307 362 License Cases, 5 How. 504 17, 20 Lickley v. Bishopp, 14 L. N. 735, 150 Mich. 256 242, 424, 426 Life Ins. Co. v. Lott, 54 Ala. 499 36 Lindsay v. Eastwood, 72 Mich. 336 145. 457 Lingle v. Elmwood Twp., 12 L. N. 703, 142 Mich. 194 92, 160 Lipps v. Philadelphia, 38 Pa. St. 503 352 Livermore v. Burnap, 38 Mich. 350 265 Livingston, In re, 121 N. Y. 94 358 Lombard v. Stearns, 4 Cush. 60 8 Long v. Probate Judge, 130 Mich. 338 284, 288 Longyear v. Auditor General, 72 Mich. 415 123, 241 Longyear v. Buck, 83 Mich. 236 132 Loomis v. Jackson, 130 Mich. 594 70 Loomis v. Rogers Twp., 53 Mich. 135 125 Loree v. Smith, 100 Mich. 252 257, 279 r 425 Lott v. Sweezey, 29 Barb. 87 157 Loud & Sons Lumber Co. v. Elmer Twp., 123 Mich. 61 114 Loud & Sons Lumber Co. v. Hagar, 126 Mich. 61 409 Loud & Sons Lumber Co. v. Vienna Twp., 120 Mich. 382 157 Louden v. East Saginaw, 41 Mich. 18 157, 160, 225, 339, 409, 410 Louisville, etc., R. Co. v. Boney, 117 Ind. 501 164 Love v. Recorders Court. 128 Mich. 160 15 Lowe v. Detroit, 138 Mich. 541 101 Lucking v. Ballantine, 132 Mich. 584 146 Ludington v. Escanaba, 115 Mich. 288 140, 222 667 TABLE OF CASES (REFERENCES ARE TO SECTIONS] Ludington Water Co. v. Ludington, 119 Mich. 480 57. 120 Lundbom v. Manistee, 93 Mich. 170 . . 876 Luton v. Circuit Judge, 69 Mich. 610 18, 23 Lyon v. Harris, 52 Mich. 272 147, 158, 159. 160, 163, 411 Mackinnon v. Auditor General, 130 Mich. 552 ..57, 258 Mager v. Grimax, 8 How. 490 40 Magoun v. Savings Bank, 170 U. S. 288 40 Maish v. Arizona, 164 U. S. 599 3*8 Maloney v. Mahar, 1 Mich. 26 47, 174 Manistee v. Hasley, 79 Mich. 238 389. 438 Manistee, etc., R. Co. v. Auditor General, 115 Mich. 291 32, 34 Manistee, etc., R. Co. v. Com'r, 118 Mich. 349 34 Manistee Lumber Co. v. Springfield Twp.. 92 Mich. 277 83, 91, 125 Manistee Lumber Co. v. Witter, 58 Mich. 625 13, 7& Manistee River Imp. Co. v. Lamport, 49 Mich. 442 28 Manistee River Imp. Co. v. Lamport, 53 Mich. 593 28 Mann v. Carson, 120 Mich. 631 ..78, 84, 155, 176, 196, 203, 217, 218, 224, 230, 3S5, 388, 397, 398, 404 Marathon Twp. v. Oregon 8 Mich. 372 100 Marquette v. Dillon, 49 Mich. 244 25, 170 Marquette v. Mich. Land Co., 132 Mich. 130 61 Marquette Co. v. Ward, 50 Mich. 174 24, 152, 168 Marquette, etc.. R. Co. v. Marquette, 35 Mich. 504 439 Martin v. O'Connor, 37 Mich. 440 213 Mason v. Gladstone City, 93 Mich. 232 226, 291 Mason v. Hazelton Twp., 82 Mich. 440 293 Mason v. Muskegon, ill Mich. 687 410 Mason v. New Haven Twp., 82 Mich. 435 293 Mason v. Railway Co., 104 Mich. 631 244 Mason v. School District, 34 Mich. 228 152, 166 Mathews v. Carman, 110 Mich. 559 24 Mathewson v. Grand Rapids, 88 Mich. 558 362. 363. 365, 368, 889 Mathias v. Drain Com'r, 49 Mich. 465 263, 268, 271, 273. 302 Mathias v. Drain Com'r, 73 Mich. 5 301 Matran v. Thompkins. 99 Mich. 528 286, 296, 800 Maurer v. Cliff, 94 Mich. 194 48,77. 91 Maynard v. Eaton Judge, 108 Mich. 201 23 Maxfield v. Wiley, 46 Mich. 252 203, 199 Maxon v. Parrott, 17 Mich. 332 71 Maxwell v. Auditor General, 125 Mich. 621 427. 445 Maxwell v. Paine. 53 Mich. 30 109,205 Maybee v. Drain Com'r. 45 Mich. 568 226, 273, 429 Mayor. In re, of New York. 11 John R. 77.... 345 Mayot v. Auditor General. 12 L. N. 279. 140 Mich. 159... 84, 489, 453 Mays v. Cincinnati, 1 Ohio St. 268 158 McBrian v. Grand Rapids. 56 Mich. 95 385. 860 McCulIum v. Bethany Twp.. 42 Mich. 457 100. 405 McCouIIough v. Maryland, 4 Wheat. 316 1 TABLE OF CASES 668 i [REFERENCES ARE TO SECTIONS] McCormick v. Bay City, 23 Mich. 457 117, 152 McCoy v. Anderson, 47 Mich. 502 74,92,411 McCurdy v. Shiawasse Co., 15 L. N. 873 103 McDonald v. Escanaba, 62 Mich. 555 96, 107 McDonald v. Springwells, 152 Mich. 28 317 McElheny v. Drain Com'r, 146 Mich. 191 425 McFadden v. Brady, 120 Mich. 699 223, 385, 394, 439 McFarlane v. Simpson, 153 Mich. 193 399 McFarlan v. Cedar Creek Twp., 93 Mich. 558 13, 125, 160 McGee v. Bailey, 86 la. 513 379 McGehee v. Malthis, 21 Ark. 40..'. 354 McGinley v. Calumet, etc., Mining Co., 121 Mich. 88.212, 389, 398, 399 McGoon v. Scales, 9 Wall. 30 453 McGregor v. Gladwin Board, 37 Mich. 388 242 McKenzie v. Murphy, 24 Ark. 155 73 McKinnon v. Meston, 104 Mich. 19 205 McMorran v. Wright, 74 Mich. 356 99 McPherson, In re, 104 N. Y. 306 38 McRae v. Auditor General, 146 Mich. 594 213, 217, 414 Mead v. Haines, 81 Mich. 261 48, 94 Mead v. Lansing, 56 Mich. 601, 160,410 Meagher v. Dumas, 13 L. N. 109, 143 Mich. 639 53, 419 Mears y. Howarth, 34 Mich. 19 436 Menominee v. Martin Lumber Co., 119 Mich. 201 78, 405 Menton v. Cook, 147 Mich. 540 319 Merriams Est, In Re, 147 Mich. 630 40 Merrick v. Amhurst, 12 Allen 504 4 Merrick v. Mayhue, 40 Mich. 196 385 Merrill v. Auditor General, 24 Mich. 170 48, 90, 92, 96, 437 Merrill v. Austin, 53 Cal. 379 157 Merritt Twp. 'v. Harp, 12 L. N. 417, 141 Mich. 233 310 Mersereau v. Miller, 112 Mich. 103 377,391 Messenger v. Peter, 129 Mich. 94 108 Metz v. Hipps, 96 Pa. St. 15 379 Michaels v. McRoy, 14 L. N. 272, 148 Mich. 577 368 Mich. Com. Improvement Ass'n v. Auditor General, 14 L. N. 613 , 150 Mich. 69 4 Mich. Dairy Co. v. McKinley, 70 Mich. 574 78, 163, 222 Mich. Land, etc., Co. v. La Anse Twp., 63 Mich. 700 5, 42, 116, 117, 122, 123, 124, 231 Mich. Land, etc., Co. v. Republic Twp., 65 Mich. 628 12, 125, 160, 232, 237 Mich. Mutual Life Ins. Co. v. Detroit, 133 Mich. 408 137 Mich. Mutual Life Ins. Co. v. Hartz, 129 Mich. 105 36 Mich. Power Co. v. Atwood, 126 Mich. 651 411 Mich. Savings Bank v. Detroit, 107 Mich. 246 94 Mich. Southern, etc., R. Co. v. Auditor General, 9 Mich. 448 407 Mich. State Bank v. Hastings, Walk. Ch. 9 58 Mich. Sugar Co. v. Auditor General, 124 Mich. 674 9, 10 Micks v. Mason, 145 Mich. 212 21 Midland County v. Auditor General, 27 Mich. 165 171 Midland Twp. v. Roscommon Twp., 39 Mich. 424 42, 123 '>''' TABLE OF CASES [REFERENCES ARE TO SECTIONS] Miles v. Walker, 4 Mich. 641 Millard v. Truax, 99 Mich. 157 377. 391, 394, 489 Milier v. Brown, 122 Mich. 147 880 Miller v. Gandby, 13 Mich. 540 135, 434, 448 Milier v. Kalamazop, 140 Mich. 494 57,347 Miller v. McLaughlin, 141 Mich. 425 40 Miller v. Meils Twp., 144 Mich. 643 147,197,800 Miller v. Smith, 115 Mich. 427 189 Miller v. Steele, 13 L. N. 686 , 146 Mich. 123 156, 198, 4O4 Miller v. Walker, 12 L. N. 501 , 141 Mich. 425 40 Mills v. Detroit, 95 Mich. 422 337, 338, 341. 34J M ills v. Richland Twp., 72 Mich., 100 ..101, 116, 117, 125, 160, 227, 241 Mills vs. Van Camp, 41 Mich., 645 165 Milton v. Drain Com'r, 40 Mich. 229 257, 265, 268, 271, 295 Milwaukee, etc., R. Co. v. Milwaukee, 34 Wis. 271 60 Minor Lumber Co. v. Alpena, 97 Mich. 499 150, 157,409 Mitchell v. Lake Twp., 126 Mich. 367 51, 77 Mitchell v. Negaunee, 113 Mich. 359 3, 8, 96, 435 Mitchell v. Williams, 27 Ind. 62 132 Mogg v. Hall, 53 Mich. 576 153, 301, 412, 415 Monaghan v. Auditor General, 136 Mich. 247 197, 198, 206 Monroe v. Greenhoe, 54 Mich. 9 75 Monroe Twp. v. Whipple, 62 Mich. 560 166 Monroe Water Co. v. Frenchtown, 98 Mich. 431 r ---51, 95 Monroe Water Co. v. Heath, 115 Mich. 277 180 Montpelier Savings Bank v. Quincey, 14 L. N. 551, 149 Mich. 701.. 118 Moore v. Auditor General, 122 Mich. 599 155 Moore v. Mclntyre, 110 Mich. 237 226, 277, 425 Merely v. Buchanan Village, 124 Mich. 128 306 Moret v. Mason, 106 Mich. 340 412 Morey v. Brown, 42 N. H. 373 138 Morford v. Unger, 8 la. 82 4 Morgan v. Parham, 16 Wall. 471 68 Morgan v. Tweddle, 119 Mich. 350 227, 391, 398 Morse v. Auditor General, 13 L. N. 101, 143 Mich. 610 ..* 53, 143, 209, 216, 419 Morse v. Williams, 92 Mich. 250 426 Morseman v. Ionia, 32 Mich. 283 260 Morrice Village v. Sutton. 139 Mich. 643 10 Morrison v. Railway Co., 96 Mo. 602 884 Moses v. White, 29 Mich. 59 116, 828, 838 Moss vs. Cummings, 44 Mich. 359 48, 89, 153. 409 Motz v. Detroit, 18 Mich. 495.. 12. 316. 352. 358. 360, 368, 365. 376, 414 Mt. Clemens v. Sherbert, 122 Mich. 147 15. 18 Muirhead v. Bergland, 111 Mich. 655 389 Muirhead v. Sands, 111 Mich. 4S7.179, 197, 198. 199, 377. 383, 384.385.391 Mumford v. Sewall, 11 Or. 70 64 Munroe v. Winegar, 128 Mich. 309 190, 196, 384. 445. 453 Murphy v. Campau, 33 Mich. 71 808 Murphy v. Dobben. 137 Mich. 565 886, 407. 447 Murray v. Hudson, 65 Mich. 670 419 Murrell v. Goodyear. 1 De Gex, F. * S. 488 188 TABLE OF CASES 670 [REFERENCES ARE TO SECTIONS] Muscatine City v. Packet Co., 45 la. 185 153 Muskegon v. Boyce, 123 Mich. 535 96 Muskegon v. Hanes, 14 L. N. 489, 149 Mich. 460 17 Muskegon v. Lange, 104 Mich. 19 67, 68 Muskegon v. Martin Lumber Co., 86 Mich. 625 174, 175, 238, 405 Muskegon v. Muskegon Co., 123 Mich. 272 Muskegon v. Soderberg, 111 Mich. 559 170 Muskegon v. Zeeryp, 134 Mich. 181 17, 18, 19 N Naegly v. Saginaw, 101 Mich. 532 369 Napper v. Fitzpatrick, 11 L. N. 780, 139 Mich. 139 456 Nash v. Kenyon, 14 L. N. 924, 151 Mich. 152 291 Nathan v. State, 8 How. 373 30 National Loan, etc., Co. y. Detroit, 136 Mich. 451 57 Negley v. Sturgis Council, 44 Mich. 1 24 Negus v. Yancey, 22 la. 57 198, 199 Nelson v. Saginaw, 106 Mich. 659 356, 376, 438 Nester v. Baraga Twp., 133 Mich. 640 72, 94 Nester v. Busch, 64 Mich. 657 212 Nester v. Church, 121 Mich. 81 385, 391 New Albany, etc., R. Co. v. Peterson, 14 Ind. 112 315 New Orleans v. Huston, 119 U. S. 265 68, 147 New Orleans v. Water Co., 142 U. S. 79 2 New York v. Miln, 11 Peters 133 24 Newaygo Mfg. Co. v. Eichtenaw, 81 Mich. 416 117, 119, 120, 126, 213, 229, 241, 420 Newaygo Portland Cement Co. v. Sheridan Twp., 137 Mich. 475. . 51 Newkirk v. Fisher, 72 Mich. 113 101, 124, 174, 230 Newton v. Auditor General, 131 Mich. 547 212, 391, 401, 446, 458 Nicodemus v. East Saginaw, 25 Mich. 452 158, 159, 239, 409 Niles Water Co. v. Niles, 59 Mich. 311 120 Nims v. Sherman, 43 Mich. 45 190 Nitz v. Bolton, 71 Mich. 388 197 Norris v. Hall, 124 Mich. 170 209 North Park Bridge Co. v. Walker Twp., 13 L. N. 94, 143 Mich. 693 30, 32 Northrup v. Maneka, 126 Mich. 550 155, 397, 419 Northwestern Lumber Co. v. Scott, 123 Mich. 357.147, 174, 175, 405,411 Nowlen v. Benton Harbor, 134 Mich. 401 349, 353, 376 Nowlen v. Hall, 128 Mich. 274 380, 391, 419 Nugent v. Erb, 90 Mich. 278 257, 263, 268, 287, 417 Null v. Zierle, 52 Mich. 540 249, 300, 424 o Orien, In Re, 119 Mich. 540 327 Oceana Co. v. Hart Twp., 48 Mich. 319 170, 217 O'Connor v. Auditor General, 127 Mich. 553 197, 205 O'Connor v. Carpenter, 144 Mich. 240 205, 216 C71 TABLE OF CASES [REFERENCES ARE TO SECTIONS] O'Connor v. Gottschalk, 14 L, N. 342, 14S Mich. 450 100 O'Connor v. Hogan, 140 Mich. 613 314 Odlin v. Woodruff, 22 L. R. A. 699 68 O'Donncl v. Pcrrin, 77 Mich. 173 197 O'Halloran v. Mayor, etc., 107 Mich. 138 24 Oliver v. Lynn, 130 Mass. 143 73 Olmstead v. Tracey, 13 L. N. 452, 145 Mich. 2VJ 186 O'Marrow v. Port Huron, 47 Mich. 585 15* Ontonagon Co. v. Gogebic Co., 74 Mich. 721 110, 171 Oppenborn v. Auditor General, 12 L. N. 67, 140 Mich. 92 171 Orion Twp. v. Axford, 112 Mich. 179 75, 154, 406 Osborn v. Bank of U. S., 9 Wheat. 738 43* Osten v. Jerome, 93 Mich. 196 314 Ostenhout v. Jones, 54 Mich. 228 75 Otsego Lake Twp. v. Keisten, 72 Mich. 1 152 Ottawa Co. v. Auditor General, 69 Mich. 1 110, 171 Ovid Twp. v. Haire, 133 Mich. 353 73, 151. 405 Owens v. Auditor General, 14 L. N. 353, 147 Mich. 683 216,399, 451 P Page v. Huckins, 14 L. N. 599, 150 Mich. 103 314 Page v. Webster, 8 Mich. 263 186 Paine v. Boynton, 124 Mich. 194 155, 197, 198 Paldi v. Paldi, 84 Mich. 386 89, 100, 106, 1 - Palmer v. Hartford, Trustees, 73 Mich. 96 24 Palmer v. Napoleon Twp., 16 Mich. 176 437,448 Palmer v. Port Huron, 11 L. N. 911, 139 Mich. 471 339, 341 Palmer v. Rich, 12 Mich. 414 290, 295, 298, 439, 445, 447 Palmer v. Willett, 105 Mich. 86 274.278 Pape v. Benton Twp., 140 Mich. 165 l'J. r . Pardee v. Freesoil Twp., 74 Mich. 81 77 Paris v. Mayor, etc., 85 III. 597 82 Parker v. Fields, 48 Mich. 250 305 Parker v. Lincoln, 114 Mich. 306 267, 272. 278. 293 Parker v. People, 22 Mich. 93 391 Parmalee v. Chicago. 60 111. 267 57 Parker v. Portland Trustees, 54 Mich. 308 24 Parsons v. Grand Rapids, 12 L. N. 507, 141 Mich. 467 316, 321, 324. 344 Passenger Cases, 7 Howard 283 20 Patrick v. Sherwood, 66 Mich. 319 154 Patterson v. Grayling Twp.. 125 Mich. 126 71 Patterson v. Judge. 13 L. N. 269; 144 Mich. 416 285, 417, 429. 441 Patterson v. Mead, 614 L. N. 326. 148 Mich. 659 '.248, 250. 258, 262, 264. 274, 285, 300. 424 Paul v. Detroit. 32 Mich. 110 258 Paw Paw Twp. v. Eggleston. 25 Mich. 36 152 Paye v. Grosse Pointe. 134 Mich. 524 16 Pearsall v. Eaton Co. Sup'rs, 71 Mich. 488 101 Peck v. Grand Rapids, 125 Mich. 416 817,221.324 TABLE OF CASES 672 [REFERENCES ARE TO SECTIONS] Peet v. O'Brien, 5 Neb. 360 143 Pelton v. Transportation Co., 37 Ohio St. 450 72 Pence v. Miller, 12 L. N. 110, 140 Mich. 205 215, 216 Peninsular Iron Co. v. Crystal Falls Twp., 60 Mich. 79 160 Peninsular Iron Co. v. Crystal Falls Twp., 60 Mich. 510 89, 94, 114, 117, 121, 137, 160, 238, 241 Peninsular R. Co. v. Howard, 20 Mich. 18 242 Peninsular Savings Bank v. Ward, 118 Mich. 87 123, 126, 196, 389, 390, 453 Pennoyer v. Saginaw, 8 Mich. 534 303 People v. Armstrong, 73 Mich. 288 15, 18 People v. Assessors, 40 N. Y. 154 76 People v. Auditor General, 7 Mich. 84 12, 57 People v. Auditor General, 9 Mich. 134 57 People v. Auditors, 59 Mich. 327 9 People v. Babcock, 11 Wend. 586 24 P'eople v. Baker, 115 Mich. 199. 18, 19 People v. Banhagel, 151 Mich. 40 368 People v. Barger, 62 111. 452 57 People v. Bennett, 83 Mich. 457 15 People v. Blom, 120 Mich. 40 15, 18, 20, 23 People v. Bouchard, 82 Mich. 157 21 People v. Brill, 120 Mich. 42 14 People v. Brooklyn, 4 N. Y. 419 38 People v. Bunker, 128 Mich. 160 17, 21 People v. Campbell, 72 N. Y. 496 361 People v. Campfield, 150 Mich. 675 368 People v. Case, 15 L. N. 363, 153 Mich. 98 21 People v. Christian, 144 Mich. 247 216 People v. Clements, 68 Mich. 655 163 People v. Com'rs, 2 Black 620 1 People v. Com'rs, 4 Wall. 244 69 People v. Com'rs, 82 N. Y. 462 51 People v. De Blaay, 137 Mich. 402 19 People v. Decker, 141 Mich. 304 16, IS People v. Detroit, etc., R. C., 1 Mich. 458 1, 32 People v. Equitable Trust Co., 96 N. Y. 387 38 People v. Furman, 85 Mich. 110 20 People v. Gardner, 143 Mich. 104 14 People v. Gebhard, 151 Mich. 192 21 People v. Gresser, 67 Mich. 490 23 People v. Guarantee Trust Co., 15 L. N. 904 368 People v. Halsey, 53 Barb. 547 287, 417 People v. Hammond, 1 Doug. 276 195, 197 Peop'e v. Henckler, 137 111. 580.. 143 People v. Hotchkiss, 118 Mich. 59 18, 19 People v. Howard, 73 Mich. 10 224 People v. Jewell, 138 Mich. 620 231 People v. Johr, 22 Mich. 461 47 Peoole v. Judge, 39 Mich. 197 224 People v. Kropp, 52 Mich. 582 23 People v. Lanning, 73 Mich. 284 24 TABLE OF CASES [REFERENCES ARE TO SECTIONS] People v. Leavitt, 41 Mich. 470 414 People v. Lynch, 51 Cal. 15 210 People v. Lyng, 10 Sup. Ct. Rep. 725 People v. Mahoney, 55 Cal. 286 81 People v. Maynard, 15 Mich. 463 43 People v. Mayor of Brooklyn, 4 Comst. 423 316 People v. Mich. Southern R. Co., 4 Mich. 398 32 People v. Newberry, 152 Mich. 292 366 People v. Onondaga Board, 10 Mich. 269 220 People v. Pequin, 74 Mich. 35 SO People v. Rhodes, 15 111. 13 14 People v. Russell, 49 Mich. 619 19 People v. Salem, 20 Mich. 452 3, 4, 9 People v. Seeley, 117 Mich. 263 155 People v. Solomon, 54 111. 41 People v. Sawyer, 106 M ich. 428 21 People v. Smith, 131 Mich. 70 163 People v. Soule, 74 Mich. 250 22 People v. Springwells Board, 25 Mich. 153 6 People v. State Auditors, 9 Mich. 327 10 People v. Voorhis, 131 Mich. 398 16. 17 People v. Wadsworth, 63 Mich. 500 153 People v. Walling, 53 Mich. 264 17,18, 20 People v. Whartenby, 38 Cal. 461 14 People v. White Lead Wks., 82 Mich. 471 18 Pere Marquette R. Co. v. Ludington, 133 Mich. 397 32, 158 Pere Marquette R. Co. v. Weilnan. 16 L. N. (filed July 15) '-M4 Perkins v. Nugent, 45 Mich. 156 92, 96, 241 Perrizo v. Jstephenson Twp., 12 L. N. 373, 141 Mich. 167 121 Perry v. Big Rapids, 67 Mich. 146 70 Perry v. Hepburne, 4 Mich. 165 115 Perry v. Reed, 13 L. N. 979 , 147 Mich. 146 309 Peters v. Youngs, 122 Mich. 484. 404, 456 Peterson v. Ionia, 152 Mich. 678 335 Petrie Lumber Co. v. Collins, 66 Mich. 64 78, 163, 2 Pettibone v. Smith, 37 Mich. 579 318 Pettit v. Flint & P. M. R. Co.. 114 Mich. 362 83 Phelps v. O'Connor, 137 Mich. 625 400,451 Phcnix v. Dark. 82 Mich. 328 48 Philadelphia v. Tryon, 35 Pa. St. 401 352 Philips v. Lewis, 109 Ind. 62 390 Philips v. New Buffalo Twp., 64 Mich. 683 95 Philips v. New Buffalo Twp., 68 Mich. 217 150. 212, Picotter v. Whalley, 80 Mich. 257 ' 79, 257.280 Pierce v. Baughman, 14 Pick. 356 1-1 Picrpont v. Osmun, 118 Mich. 472 401 Pierson v. Ionia, 15 L. N. 189 363 Pike v. Richardson, 136 Mich. 414 198, 403. 404 Pillsbury v. Auditor General, 26 Mkh. 245 138. 437. 4t Pine Co.. In Re, 56 Minn. 288 51 Pingree v. Auditor General, 120 Mich. 95 29. 87 Pioneer Fuel Co. v. Molloy. 116 Mich. 430 48. M (48) TABLE OF CASES 674 [REFERENCES ARE TO SECTIONS] Pixley v. Huggins, 15 Cal. 128 438 Plainfield Twp. v. Sage, 107 Mich. 19 77 Platt v. Stewart, 10 Mich. 260 230, 240, 304 Platz v. Englehardt, 138 Mich. 485 53,389,419,420 Plymouth R. Co. v. Colwell, 39 Pa. St. 337 164 Polk Co. Bank v. Iowa, 69 la. 29 58, 346 Pollock v. Sowers, 137 Mich. 368 278, 288 Pond v. Drake, 50 Mich. 302 189 Pontiac v. Axford, 49 Mich. 69 117,235,405 Port Huron v. Jenkinson, 77 Mich. 414.. 18, 327 Port Huron v. Wright, 14 L. N. 720, 150 Mich. 279 40, 97, 456 Port Huron Twp. v. Potts, 78 Mich. 435 171, 172, 249 Porter v. Corbin, 124 Mich. 201 189 Porter v. Stanley, 47 Me. 515 152 Porter v. Van Dyke, 31 Mich. 176 214 Portland Bank v. Althorp, 12 Mass. 252 38 Portsmouth Savings Bank v. Ashley Village, 91 Mich. 670 369 Portsmouth Twp. v. Cranage Steamship Co., 14 L. N. 81 , 148 Mich. 230 62, 94 Post v. Harris, 95 Mich. 321 138, 286 Post v. Sparta Village, 58 Mich. 212 21 Post v. Sparta Village, 64 Mich. 597 24 Post v. Sparta Village, 61 Mich. 323 24 Potter v. Homer Village, 58 Mich. 212 19, 24 Powers Appeal, 29 Mich. 504 339, 433 Powers v. Detroit, 11 L. N. 742, 139 Mich. 30 334, 343, 344, 350, 353, 371, 376 Power v. Litchfield Village, 141 Mich. 350 24 Powers v. Grand Rapids, 98 Mich. 393 343, 438 Preston v. Boston, 12 Pick. 13 157 Price v. Hunter, 34 Fed. R. 355 76 Pringle v. Wagoner, 110 Mich. 612 188 Purdy v. Martin, 31 Mich. 455 265 Putnam v. Fife Lake Twp., 45 Mich. 125 75, 139, 405 Putnam v. Grand Rapids, 58 Mich. 416 120, 123 Q Quay v. Cheboygan Judge, 14 L. N. 700 , 150 Mich. 457 24 Quinlan v. Manistique, 85 Mich. 23 141 Quinlan v. Rogers, 12 Mich. 168 205, 214 R Raber v. Hyde, 138 Mich. 101 205 Railway Co. v. Com'rs, 112 U. S. 609 34 Railway Co. v. Langdale, 56 Wis. 614 . . 45 Railway Co. v. Milwaukee, 4 Wis. 47 59 Ramsey v. Everet Twp. Clerk, 52 Mich. 344 415 Randell v. Ellwell, 52 N. Y. 521 164 Raymond v. McKenna, 147 Mich. 35 374 675 TABLE OF CASES [REFERENCES ARE TO SECTIONS] Rayner v. Lee, 20 Mich. 3S4 79, SOS Raynesford v. Phelps, 43 Mich. 342 . iw, 1:4 Rayncsford v. Phelps, 49 Mich. 315 143 Rea y. Rea, 63 Mich. 257 154 Redding v. Lamb, 81 Mich. 318 Reed v. Auditor General, 746 Mich. 208 :M5 Reilly v. Blaser, 61 Mich. 399 SIS Reinnig v. Munson, 46 Mich. 138 265 Reithmiller v. People, 44 Mich. 280 IS Rens v. Grand Rapids, 73 Mich. 237 363 Reynolds v. Baughagle, 151 Mich. 40 349 Ricardi v. Bellaire Village, 153 Mich. 570 337 Rice v. Auditor General, 30 Mich. 12 Rice v. Flint, 67 Mich. 401 396, 4i7 Rice v. Muskegon, 14 L. N. 820, 150 Mich. 679 94 Rice v. Probate Judge, 141 Mich. 693. .242, 246, 249, 250, 285, 286, 2981 TABLE OF CASES [REFERENCES ARE TO SECTIONS] Tivcy v. People, 8 Mich. 128 3 Tomlin v. Newcomb, 70 Mich. 358 /.MS, 414 Tompkins v. Johnson, 75 Mich. 181 . 102. 174, 334 Toolan v. Longyear, 13 L. N. 134, 144 Mich. 55. .'07. 383 Torrent v. Yager, 52 Mich. 506 7t Tousey v. Post, 91 Mich. 631 140. 411 Townsend v. Manistee, 88 Mich. 408 319, 339, 359 Tower v. Somerset Twp., 143 Mich. 195 Tracey v. Swarthout, 10 Peters 80 i J3, 174 Transportation Co. v. Shea, 19 N. Y. 408 . . n Travers v. Queslee, 19 Mich. 98 411 Traverse Beach Ass'n v. Elmwood Twp., 12 L. N. 746, 142 Mich. 78 92, iM Traverse Beach Ass'n v. Elmwood Twp., 142 Mich. 297 94 Treat v. Bates, 27 Mich. 390 31t Treinble v. Longworth, 13 Ohio St. 431 453 Triangle Land Co. v. Nessen, 15 L. N. 1054 439 Tromble v. Hoffman, 130 Mich. 676 380, 381. 391 Trump Mfg. Co. v. Buchanan Village, 116 Mich. 113 110 Tucker v. Drain Com'r, 50 Mich. 5 300, 414, 412 Tucker v. Ferguson, 22 Wall. 527 34. 57. 14 Tucker v. Van Winkle, 12 L. N. 658, 142 Mich. 210 401 Tuller v. Detroit, 126 Mich. 605 37 Turnbull v. Alpena, 74 Mich. 621 116, 123, 155. 409 Turner v. Judge, 95 Mich. 1 48, 88 Tweed v. Metcalf, 4 Mich. 579 ..79, 115, 116, 139, 149, 153, 163, 174. 180, 201. 206, 208, 838 Twiss v. Port Huron, 63 Mich. 528 320, 321, 341. 360 Tyson v. State, 28 Md. 587 40 u Union Bank v. New York, 51 Barb. 159 1ST Union Depot Co. v. Commissioner, 118 Mich. 340 2S4 Union Depot Co. v. Detroit, 88 Mich. 347 33 Union Ins. Co. v. Hoge, 21 How. 35 t!8 Union School v. Parris, 97 Mich. 593 138 Union Trust Co. v. Grant, 14 L. N. 215, 148 Mich. 501. 154 Union Trust Co. v. Mabley, 113 Mich. 478 154 Union Trust Co. v. Probate Judge, 125 Mich. 487 19, 30, 40 U. S. v. Black, 11 Blatchf. 23 431 U. S. v. Gilmore, 7 Wall. 491 407 U. S. v. Gilmore, 8 Wall. 330 118 U. S. v. Kirkpatrick, 9 Wheat, 720 151 U. S. v. Macon Co., 99 U. S. 582 118 U. S. v. Perkins. 163 U. S. 639 40 U. S. v. Railway Co., 118 U. S. 125 147 U. S. v. Robeson, 9 Peters 319 407 Upjohn v. Richland Twp., 46 Mich. 541 Upton v. Kennedy, 36 Mich. 215. .. .104, 114, 138, 179. 3, ISO, 138. 14O TABLE OF .CASES 682 [REFERENCES ARE TO SECTIONS] Van Akin v. Dunn, 117 Mich. 421 283, 291 Van Allen v. Assessors, 3 Wall. 573 69 Van Buskirk v. Drain Com'r, 48 Mich. 258 265 Van Der Brooks v. Correon, 48 Mich. 283 420 Van Horn v. People, 46 Mich. 183 132 Van Husan v. Heames, 98 Mich. 504 156 Van Norman v. Judge, 45 Mich. 204 416 Van Wyck v. Knevals, 106 U. S. 360 438 Vaughn v. Ellis, Sup. Ct. File No. 11,038 291 Veris v. Thomas, 12 111. 442 185 Vettrely v. McNeal, 129 Mich. 507 83,397 Vier v. Detroit, 111 Mich. 646 215 Vischher v. Auditor General, 116 Mich. 663 384 Voigt v. Detroit, 123 Mich. 547 321,334,338,344,353,373 Vossen v. St. Clair, 14 L. N. 331 , 148 Mich. 686 4 Vreeland v. Monnier, 127 Mich. 304 189 w Wabash R. Co. v. Defiance, 167 U. S. 100 5.7 Wabo Lt. Co. v. Davis, 12 L. N. 440, 141 Mich. 187 389 Wager v. Bowerly, 104 Mich. 39 137, 142, 437, 442 Wager v. Bowerly, 109 Mich. 388 142 Wait v. Gardener, 123 Mich. 236 192 Wait v. McMillan, 121 Mich. 95 389 Walcott v. People, 17 Mich. 68 30, 31, 89, 224 Waldby v. Callender, 8 Mich. 430 205, 214 Waldron v. Auditor General, 109 Mich. 231 227, 381, 382, 384 Waldron v. Lee, 5 Pick. 328 287, 417 Walker v. Ann Arbor, 118 Mich. 251 322, 376 Walker v. Detroit, 136 Mich. 6 344, 351, 370, 374, 433 Walker v. Detroit, 138 Mich. 538 48, 144 Walker v. Detroit, 138 Mich. 639 354, 356, 438 Walker v. Detroit, 11 L. N. 709, 138 Mich. 538 353, 356, 371, 438 Walker v. Detroit, 13 L. N. 74, 143 Mich. 427 327 Walker v. Cincinnati, 21 Ohio St. 14 11 Wall v. Trumbull, 16 Mich. 230 48, 10S Wallace v. Shelton, 14 La. Ann. 498 354 Wallace v. Shelton, 52 Mich. 159 358, 385 Walling v. Michigan, 116 U. S. 454 16 Walsh v. King, 74 Mich. 350 92, 432 Walters v. Chamberlain, 65 Mich. 333 414 Waubaunsee Co. v. Walters, 8 Kan. 131 158 Ward v. Echo Twp., 13 L. N., 398, 145 Mich. 56 51, 92 Ward v. Maryland, 12 Wall. 418 17 Ward v. Nestell, 113 Mich. 185 191, 225 Warner v. Lawrence Village, 62 Mich. 251 21, 23 Warren v. Auditor General, 131 Mich. 263 171, 453 Warren v. Grand Haven, 30 Mich. 24 326, 333, 343, 344, 350, 353, 356, 370, 373, 376 683 TABLE OF CASES [REFERENCES ARE TO SECTIONS] Warren v. Paul, 22 Ind. 228 41 Washington, etc., Trust Co. v. McKenzie, 64 Minn. 273 1-4 Water Com'rs v. Auditor General, 115 Mich. 546 is Watkins v. Green, 101 Mich. 493 . . 52 Watkins v. Macon Co. Court, 68 Mo. 29 .lift Watkins v. U. S., 9 Wall. 765 . . 407 Wattles v. Lapeer, 40 Mich. 624 3, 100, 141, 459 Watts v. Bublitz, 99 Mich. 586 382, 384, 388, 301, 305 Wayne Co. Savings Bank v. Roscommon Twp., 97 Mich. 630. Wayne Co. Savings Bank v. School Dist., 15 L. N. 251 369 Wayne Village v. Goldsmith, 12 L. N. 516, 141 Mich. 528 409 Webber v. Virginia, 103 U. S. 344 88 Webster v. Auditor General, 121 Mich. 668 179 Webster v. Monroe, 84 Mich. 341 W Webster v. Wheeler, 119 Mich. 601 171,414 Weeks v. Ellis, 2 Barb. 325 44 Weeks v. Milwaukee, 10 Wis. 258 4, 92, 432 Weimer v. Bunberg, 30 Mich. 201 l Weimer v. Porter, 42 Mich. 569 162, 200, 211, 410, 458 Weier v. Kitchens, 52 Miss 74 174 Welch v. Cork, 97 U. S. 541 Welever v. Auditor General, 12 L. N. 1005, 143 Mich. 311 15 Weller v. Wheelock, 15 L. N. 856 403 Wells v. Dill, 1 Mart. La. 592 152 Wells v. Torrey, 144 Mich. 689 10 Wells v. Weston, 22 Mo. 384 4 Welton v. Missouri, 91 U. S. 275 17 West Brook v. Miller, 56 Mich. 148 202, 218 West Brook v. Miller, 64 Mich. 129 100, 109, 149, 207, 23 West. Mich. Lumber Co. v. Dean, 73 Mich. 459 47, 140, 143, 411 West Wisconsin R. Co. v. Sup'rs. 93 U. S. 595 34 Westinghauser v. People, 44 Mich. 269 20,221 Weston v. Charleston, 9 Wheat. 733 : Weston v. Luce Co., 102 Mich. 523 157, 159, 160. 179 Weston v. Monroe, 84 Mich. 341 107, 109, 231, 136 W. F. Stewart Co. v. Flint, 14 L. N. 55, 147 Mich. 697 S41, 359, 360. 376 Wheat v. Tine, 14 L. N. 430. 149 Mich. 314 232, 370, 374 Wheatley v. Baugh. 25 Pa. St. 528 815 Whisler v. Drain Com'r, 40 Mich. 591 260,295 Whitbeck v. Huson Village, 50 Mich. 86.316, 319, 340, 344. 361. 362. 411 White v. Bracelin, 144 Mich. 332 11 White v. Fast Saginaw. 43 Mich. 567 151 White v. Gibson, 13 L. N. 872. 146 Mich. 547 189 White v. Millbrook Twp., 60 Mich. 532 M, 160. 409 White v. Saginaw, 67 Mich. 33 321, 334, 849. 356. 359. 370, 871 White v. Shaw. 14 L. N. 700, 150 Mich. 270 403 Whiteford Twp. v. Probate Judge. 53 Mich. 130 288, 248, 151. MS. .'. Whitely v. tansing. 27 Mich. 131 359. 868 Whitaker v. Fuller, 96 Mich. 145 411 Whitmore v. Probate Judge, 14 L. N. 380, 149 Mich. 192 803 TABLE OF CASES 684 [REFERENCES 'ARE TO SECTIONS] Whitney v. Gd. Rapids Twp. Bd., 71 Mich. 234 21 Whitney v. Hudson Village, 69 Mich. 189... 316, 319, 340, 344, 361, 362 Whitney v. Port Huron, 88 Mich. 268 157, 159, 410 Wilcox v. Eagle Twp., 81 Mich. 271 130 Wilcox v. Paddock, 65 Mich. 23 6 Wiley, In Re, 89 Mich. 58 380, 383, 385. 387, 391, 419 Wiley v. Beach, 86 Mich. 381 416 Wilkin v. Keith, 121 Mich. 66 84, 193, 196, 382, 384, 391, 397, 453 Wilkins v. Detroit, 46 Mich. 120 ". 325,337,340 Wilkinson v. Auditor General, 13 L. N. 945; 147 Mich. 13 217, 414 Willcheck v. Drain Com'r, 42 Mich. 105 226, 265, 271 Williams v. Detroit, 2 Mich. 560 3, 4, 12, 316, 317, 320, 321, 324, 325, 339, 341, 348, 351, 352, 373, 375, 414, 448 Williams v. Fox, 15 L. N. 91, 152 Mich. 215 185 Williams v. Mears, 61 Mich. 86 96, 107, 142, 234, 241 Williams v. Merritt, 15 L. N. 204, 152 Mich. 621 160 Williams v. Olson, 12 L. N. 560, 141 Mich. 580 403, 404 Williams v. Railway Co., 29j N. J. Eq. 311 164 Williams v. Saginaw, 51 Mich. 120 74, 94, 96, 116 Williams v. Towell, 65 Mich. 204 190 Williamson v. New Jersey, 130 U. S. 189 2 Wilson v. Edmunds, 24 N. H. 517 154 Wilson v. Woolman, 133 Mich. 350 220 Winona Land Co. v. Menominee, 159 U. S. 537 383 Winters v. Cook, 12 L. N. 224 , 140 Mich. 483 403, 404 Wisner v. Davenport, 5 Mich. 501 117, 149, 383 Wisner v. Hubbard, 15 Mich. 146 86 Wixom v. Bixby, 127 Mich. 479 274 Wolcot v. People, 17 Mich. 91 57 Wolcott v. Superior Judge, 112 Mich. 311 24 Wolf v. Chalkers, 31 Conn. 121 132 Wolf v. Lansing, 53 Mich. 367 18, 20 Wolpert v. Newcome, 106 Mich. 357 260, 264, 426, 429 Wolverine Land Co. v. Auditor General, 133 Mich. 666 212 Wolverine Land Co. v. Davis, 12 L. N. 440, 141 Mich. 187 389 Wood v. Bigelow, 115 Mich. 123 189, 217, 218, 261, 156 Wood v. Norwood Twp., 52 Mich. 32 225 Wood v. Thomas, 38 Mich. 686 153, 175 Woodbridge v. Detroit, 8 Mich. 274 ." 12, 316, 349, 352 Woodman v. Auditor General, 52 Mich. 28 48, 89, 95, 98 Woodmere, etc., Ass'n v. Springwells Twp., 130 Mich. 466 158 Woodruff v. Perham, 8 Wall. 123 17 Woodside v. Wagg, 71 Me. 207 45 Worcester v. Georgia, 6 Peters 582 53 Worcester Co. v. Worcester, 116 Mass. 193 58, 346 Wref ord v. Detroit, 132 Mich. 348 325 Wright v. Auditor General, 118 Mich. 556 98 Wright v. Dean, 3 Mich. 414 209 Wright v. Dunham, 13 Mich. 414 135, 290, 137, 238 Wright v. Rowley, 44 Mich. 557 226, 256, 266, 277, 425, 428 Wyman v. Baer, 46 Mich. 418 184,199 Wynkoop v. Circuit Judge, 113 Mich. 381 685 TABLE OF CASES Y [REFERENCES ARE TO SECTIONS] Yarnold v. Lawrence, 15 Kas. 126. Yelverton v. Steele, 38 Mich. 82 101, 108, SSI Young v. Martin, 2 Yeates 312 : Youngblood v. Sexton, 32 Mich. 408 1, 8. 12, 15. 442 Youngs v. Auditor General, 118 Mich. 550 156.397 Youngs v. Clark. 120 Mich. 528 .189 Youngs v. Peters, 118 Mich. 45 ,198. 891, 394 Youngs v. Povey, 127 Mich. 297 192, 193. S84 z Zabel v. Harshman, 68 Mich. 270 and 273 242, 244, 442, 444, 457 Zink v. Monroe Board, 68 Mich. 283 S86 INDEX [REFERENCES TO SECTIONS] ABANDONED LANDS, statutes of limitation in rt homestead lands, 216. what are, 53. ABBREVIATIONS, use of, 82. ABSTRACTS, ETC, not assessable, 70. ACCOUNTING, allowance of claims by legislature, 220. collector and municipality, 166. county treasurer, 168. state taxes, 172. statute of limitations does not run against state taxes, 217. state and county, 171. townships and county, 170. townships, 169. ACERAGE, necessity of setting forth. ACTIONS, actions against collector, 408. actions against state, 407. actions at law in re special assessments, 405. action for tax, 405. amendments, 449. assumpsit against municipality, 409. averments, 448. auditor general as defendant, 446. bill of review, 451. bill to quiet title, 383, 422. bill to quiet title in re drain tax, 424. certiorari. 422. certiorari i'n re drains, the injury, 426. certiorari and collateral actions, 427. certiorari, errors not cured by return, 428. INDEX 68& [REFERENCES TO SECTIONS] ACTIONS (Continued), certiorari, explanations in return, 429. certiorari and collateral attack, 454. certiorari to special assessment not common, 423. claim for improvements, 421. cloud on title, what constitutes, 437. cloud on title, bill to remove, 439. collateral attack in re drain tax, 454. collateral attack of special assessment, 455. complainants, parties necessary, 442. county treasurer against township treasurer, 166. decree, opening, 451. defendants, parties as, 445. ejectment, 419. ejectment, recovery for improvements, 420. equity jurisprudence, amount, 433. equity jurisprudence, in re drain tax, 440. equity jurisdiction in re special assessment, 431. form of action, 405. improvements, claim for, 437. injunction to restrain collection of tax, 436. injunction to restrain expenditures, 435. injunction to restrain waste, 434. injunction to restrain sale of land, 437. injunction, legislative regulation of, 432. laches in filing petition, 399. lien for taxes paid, enforcement of, 143. mandamus to pay money, 414. mandamus as to other duties, 415. mandamus to spread drain tax, 441. mandamus in re special tax, 418. mandamus to review action of court, 416. parties defendant, 445, 446. parties complainant, 442. petition to set aside sale, 398, 399. petition to auditor general to cancel deed, 397. petition for writ of assistance, 401. presenting claim to council, 410. quieting title, 437. quieting title in re drain tax, 424. replevin, 411. res judicata, 456. right to bring, presumed, 68. sale, setting aside by court, 398, 399. sale, setting aside by auditor general, 397. supervisor to bring, for tax, 405. trespass, 413. trover, 411. ADVALOREM TAX, nature of, 29. 689 INDEX [REFERENCES TO SECTIONS! ADJOURNMENT, board of supervisors, 103. board of state tax commissioners. 87. court, before entering decree, 389. records of, 117. sale of lands for tax, 177, 180. special drain commissioners, 271. ADMINISTRATOR. assessment of, 75, 78. liability of inheritance tax, 40. statute in re administrators, etc., 63n. ADVERSE POSSESION, based upon tax deeds, 213. state homestead lands, 216. ADVERTISEMENT, see PUBLICATION. AFFIDAVIT, publication, 385. service of papers on drains, 265. writ of certiorari on drain, 426. AGENT, assessment of personal property to, 63, 76. collecting officer as, in re liquor tax, 20. county drain commissioner as. of townships, county treasurer as, for state, 173. inheritance tax on personal, charge against, 40. liability of, for tax, 154. special drain commissioner as, 243. supervisor as, of his township, 287. ALDERMEN, delegating power to assessors, 333. liability for neglecting bond I'M re improvements, 368. method of levy prescribed by. 316. qualification of, 372. record of vote, 319. review of special assessment roll by, 355. AMENDMENTS, bill to set aside special assessments, 450. court to allow, when, 449. drain statutes, 298. drain records, 251. (44) INDEX 690 [REFERENCES TO SECTIONS] AMENDMENTS (Continued), first order, on drain, 257. objections to validity of tax, 369. pleadings, in re drains, 414. records of general tax, 236. APPEAL, see REVIEW. APPLICATION, appointment of special drain commissioner, 243. deepening, widening drain, 253. description of land, in re probate court, 263. description, in drain petition, 249. recitals in drain petition, 251. special commissioners, in re drain, 262. surplusage in drain petition, 252. APPOINTMENT, jury, on drains, 273. special commissioners on drains, 267. special drain commissioner, 243. township treasurer, not collaterally attacked, 44. APPORTIONMENT, affect on township tax, 108. appeal from benefits on drains, 285. area basis, 354. benefits, on drains, 283. benefits, in re special assessments, 353. certificate of, 109. certificate of special assessments, 356. confirmation of, 357. description, in benefits on drains, 284. district, special assessment, 344. equity will not, review, 440. frontage basis, 352. notice of, special assessments, 339. record of, general taxes, 107. review of, special assessments, 355. state and county taxes, 106. vacating, in re special assessments, 358. APPROPRIATION OF MONEY, purpose of, general tax, 3. purpose named in special assessments, 317. record of, for general tax, 116. vote for, general tax, 115. vote for, special assessments, 319. 91 INDEX [REFERENCES TO SECTIONS] AREA, assessing benefits according to, 354. description for general taxation, 81. ASSESSING OFFICER, duties of, 48. signature of, 236. ASSESSMENT, appeal from, on drains, 285. area, assessment by, 354. banks, 67. banks, national, 69. banks, collection of tax from, 68. banks, saving, 66. benefits, drains, 283. benefits, special assessments, 353. board of review, functions of, 94. boats, 62. certificate of special assessment, 356. choses in action, 63. collateral attack, special assessment, 455. confirmation of special assessment, 359. corporate realty, 55. debts deducted from personal assessment, 71. description in drain assessment, 284. description in re special assessments, 344. equity will not review drain, 440. equity will not review special, 431. exemptions from general, 57. exemptions, church and educational property, 59. exemptions, church property from special, 345. exemptions, copyrights, etc., 70. exemptions, public property, general, 58. exemptions, public property from special, 346. frontage, special assessment, 352. homestead lands, 53. insurance companies, 36. limitations of special assessments, 330. mortgages, 64. notice of assessment, drains, 282. notice of special assessment, 339. parks, in re, illegal, 329. personal property, 61. purpose of special, 317. railroad companies, general tax. 32. railroad property, special assessment on, 347. real estate, to whom assessed, 52. reassessment of special, 359. rejected taxes, 105. INDEX 692 [REFERENCES TO SECTIONS] ASSESSMENT (Continued), review of special, 355. special assessments, power to levy, 316. stock in corporations, 65. street railways, 35. telegraph and telephone companies, 37. tenants in common, 56. vacating, special, 358. vessels, 62. ASSESSORS, board of, for special assessments, 333. certificate of such board, 356. collateral attack of acts of such board, 455. delegated authority of such board, 333. general tax, see "SUPERVISOR." ATTORNEY FEES, drain funds not chargeable with, 285. townships not liable for, to defend collector, 293. AUDITOR GENERAL, cancellation of sale by, 397. certificate of error, 397. debts due state collected by, 110. deed, execution of, 202. defendant in suits in re taxes, 446. delinquent taxes returned to, 177. homestead land, duty in re, 53. newspapers, designation of, 365. petition for sale of tax lands, 179. political boundaries noticed by, 110. AUTHORITY, delegated, in re special assessments, 373. ratified, 374. BANKS, assessment of, 67. assessment of national banks, 69. assessment of savings banks, 66. collection of tax on, 68. BENEFITS, according to area, 354. according to benefits, 353. appeal from drain assessment, 284. 693 INDEX [REFERENCES TO SECTIONS] BENEFITS (Continued), certificate of, 356. collateral attack of assessment for. 455. confirmation of assessment for, 357. determination of special assessing district, 344. drain assessment of, 282. frontage assessment, 352. notice of assessment of, on drains, 359. review of special assessment, 355. BIDS, lowest, 361. notice for, 330. public works, 360. publication of notice for, 331. requirement as to, on drains, 358. state tax land, 199. BOARD OF ASSESSORS, see ASSESSORS. BOARD OF ESTIMATES, functions of, 332. BOARD OF HEALTH, jurisdiction does not include drainage, 248. BOARD OF PUBLIC WORKS, extras cannot be allowed by, 363. functions of, in re contracts, 362. BOARD OF REVIEW. action of, on drains, 285. appeal to, by tax payer, 92. certificate of, 100. collateral attack of certificate, 102. estopple for not appearing before, 94. notice of action of, 95. omission of property from roll by, 92. powers of, 99. review of action of, 96. review by state tax commissioner, 97. signatures of, on roll, 101. special assessments, 355. time of meeting, 98. BOARD OF SUPERVISORS, see "SUPERVISORS." agricultural society tax, 134. INDEX 694 [REFERENCES TO SECTIONS] BOARD OF SUPERVISORS (Continued), apportionment, state taxes, 110. certificate of, 109. certifying taxes to, 103. drain tax, action on, 286. equalization by counties, 106. equalization, as affecting townships, 108. functions of board, 104. highway tax, action on, 126. mandamus, to spread drain tax, 417. mistake in assessing drain tax, 283. record of equalization, 107. record, in re rejected taxes, 105. reviewing action of, 112. state and county tax, 110. BOATS, assessment of, 62. license for, as ferries, 22. BONDS, alderman's liability, for neglecting to take, 368. compelling payment of, 118. collector, 152. municipal liability, in re improvements, 369. qualification of public officers, 242. qualification of voters for, 319. special drain commissioner, 243. sureties on, 152. BONUSES, factories, invalid, 10. railroad companies, invalid, 9. BOUNTY TAX, raising of, 135. BRIDGES AND CULVERTS, drains, 399. tax for, 125, 126. railroad companies, 259. CANCELLATION, sale, by auditor general, 397. sale, by court, 398. CASH VALUE, certificate of, 100. 695 INDEX [REFERENCES TO SECTIONS] CERTIFICATE, board of review, 100. board of supervisors, on roll, 139. clerks, to board of supervisors, 104. 138. collateral attack of, 102. county clerk, on return of taxes, 178. equalization, 109. error, 397. payment effected by, 158. sale, 197. special assessment, 356. CERTIORARI, allegations of injury, on drains, 426. collateral action with, 428. errors not cured by return in, 429. explanations in return, 454. review of general tax not favored by, 422. review of special assessments not favored by, 413. review of drain tax favored by, 425. time of bringing, to review drain tax, 425. CHANGE OF DRAIN, diverting watercourse, 313. generally, 255. CHANGE OF ROLL, supervisor, affected by, 50. CHARGES, attorney, on drains, 288. collector, 166. institute, 27. liability of petitioners, on drains, 260. license, 15. officers, in tax proceedings, 363, 374. CHARITABLE INSTITUTIONS, exemptions from general tax, 59. exemptions from special assessments, 345. CHOSES IN ACTION, assessment of, 53. exemptions of, 71. inheritance tax on, 40. mortgages and land contracts, 84. INDEX 696 [REFERENCES TO SECTIONS] CHURCH PROPERTY, exemptions from general taxation, 59. exemption from special assessments, 345. CIRCUIT COURT COMMISSIONERS, title not determined by, 214. CIRCUIT COURTS IN CHANCERY, amendments to proceedings in, 449. amount involved, 433. auditor general, as defendant. 446. averments in bill, 443. bill of review, 400. bill to quiet title in re drain tax, 424, 440. cloud on title, 438. injunction to restrain drain tax, 440. injunction regulated by legislature, 432. injunction to restrain expenditures, 435. injunction to restrain special assessment, 431. injunction to restrain waste, 434. jurisdiction of, 488, 490. mandamus to review action of, 434. opening decree, 451. parties, complainant, 442. parties, complainant, on drains, 443. parties, complainant, special assessments, 444. parties, defendant, 445. parties, defendant, on drains, 447. res judicata, 456. reviewing assessment of taxes, 68. sale, restraining, 437. sale, setting aside, 398. CITATION, drains, notice of, 265. CITY, aldermen, qualification of, 372. amount of special assessment paid by, 334. bonds for improvement, 369. contract partly performed, not liable on, 365. council prescribes method of assessment, 316. drains within, 244. engineer, powers of, 364. liability in re improvements, 368. record of vote of, 319. suit for taxes by, 405. INDEX [REFERENCES TO SECTIONS) COLLATERAL ATTACK, actions, on drains, 427. certificate of board of review, 102. decree, 453.' drain tax, 76. municipal organization, 43. special assessment, 455. tax records, 234. COLLECTION, see LEW and FEES. fees, 166, 363, 374. liquor tax, 20. tax on bank stock, 68. tax on railroad companies, 164. See Levy and Fees. COMMISSIONERS, adjournment of special, 270. appointment of special county drain, 243. appointment of special, on drains, 267. circuit court, cannot pass on title, 214. disagreement of special, 272. jurisdiction of drain, 245-249. liability of drain, for outlet, 310. oath of special, 269. order appointing special, 268. qualification of 'drain, 242. return of special, 271. state tax, 111-113. COMPLAINANTS, drain proceedings, 443. general tax proceedings, 446. special assessments, 444. CONFIRMATION, acts of others, 374. jury's report on drain, 274. special assessment ' roll, 357. CONSTITUTION, Art. IV, 810, specific taxes. 30. Art. IV, 547. 15, 17. Art. XIV, 9. forbidding tax for internal ! improvements. 6. Art. XIV, 511, 13. uniformity of tax. cash vtloe, 316. Art. XIV. 512, cash values. 316. Art. XIV, 514, title of 'acts, 2S4. INDEX 698 [REFERENCES TO SECTIONS] CONSTITUTION (Continued), drain laws, various, 302. powers of drain commissioner, 301. statues changing taxing districts, 1. tax laws, various, 214. CONSTRUCTION, drains, construction of, 288. statutes, construction of, 297. CONTRACTS, execution of, for public improveement, 362. exempting from tax, 57. exempting from special assessment, 347. extras cannot be allowed by, 363. ' land, assessment of, 63. nonperformance of, in re improvement, 365. ratification of, 374. statute exempting railroad company is not, 34. statute governing municipality is not, 2. COST, advertising lands, 367. attorney fees and court costs, 285. clerk and sheriff fees, 374. collectors, 166. drain, 285. interest, 294. petitioner's liability on drain, 294. special improvement, 343. COUNCIL, delegating power to assessors, 333. method of assessment determined by, 316. personal liability for neglecting bond, 368. qualification of members of, 372. record of vote of, 319. review of special assessment roll by, 355. CORPORATIONS, assessment of property of, 55, banks, 67. banks, savings, 66. banks, national, 69. charitable institutions, 58. charitable institutions and special improvements, 345. educational institutions, 59. insurance companies, 36. 699 INDEX [REFERENCES TO SECTIONS] CORPORATIONS (Continued), personal property of, 62. railroad companies, 32. residence of, n. stock of, 65. street railway companies, 35. telephone and telegraph companies, 37. COUNTY, accounting, state and county, 171. accounting, township and county, 170. apportionment of state and county taxes. ITS. claims allowed by legislature, 220. county tax, determination of, 138. return of taxes to, 174. statute of limitations does not run against, 217. COUNTY CLERK, certificate to township taxes, 104, 13S. certificate of equalization, 109. certificate on roll, 139. certificate on return of taxes, 176. receives redemption money for tax purchaser, 200. signature to proceedings of board, 236. COUNTY DRAIN COMMISSIONER, appointment of special, 243. de novo proceedings, 278. delay in proceedings, 277. determination, collusiveness of, 254, 257, 158. ex parte proceedings, 260. jurisdiction, territorial, 244. jurisdiction over county and township drains, S45. jurisdiction for benefit of public health, 246. liability of, for outlet. 309. petitioners liable to, 294. qualification of, 242. COUNTY TREASURER, accounts with townships, 1601 accounts with state, 171, 172. actions by, 166. certificate of, 211. certificate of county clerk, 176. certificate of, as payment of tax, 156, 897. collects liquor tax, 20. duties of, 173. payment of taxes to, 179. return of delinquent taxes to, 174. INDEX 700 [REFERENCES TO SECTIONS] COUNTY TREASURER (Continued), returns tax to auditor general, 177. sale of delinquent tax lands by, 183. warrant to township treasurer, 175. COURT, federal government cannot tax court proceedings, 41. fraud only ground for reviewing apportionment, 96, 284, 286. probate court not restrained, 262. see circuit court in chancery. CUMULATIVE TAX TITLES, force of, 201. DAMAGES, delaying sale, after levy, 165. improper outlet for drain, 309. neglecting to take bond for labor, etc., 368. stipulated, in contract, 368. DATES, clerical mistake in, 125. DE FACTO OFFICERS, acts of collector legal, 151. definition of, 284. intruders, 283. validity of act of, 282. DE NOVO PROCEEDINGS, right to, on drains, 278. DEBTS, deduction from choses in action, 63, 71. DECREE, appeal from, 393. collateral attack upon, 453. effect of, 390. entry of, 389. evidence of, 392. particulars of, 391. power of court to open, 451. setting aside on petition, 398, 399. setting aside, effect of, 178. INDEX [REFERENCES TO SECTIONS] DEEDS, attack on, who may make, 210. auditor general to land coramiwioner, 43. cancellation of, auditor general, 397. collusiveness of, 214. descriptions in, 204. effect of, under old laws, 80S. execution of, 202. improvements, compensation for, 213. lien by void tax title holder, 211. limitation as to attacking, 215. limitation as to homestead lands, 216. operation of, 206. presumptions from, 209. recitals in, 203. reimbursement of defeated purchaser, 2lf. setting aside, by court, 398, 399. validity of, 205. DEEPENING AND WIDENING, action on one drain petition, 248. petition for, on drains, 253. DEFENDANTS, auditor general, 446. defendants in general, 445. drain proceedings, 447. DELAY IN PROCEEDINGS, de novo proceedings, 278. drain proceedings, 277. returning tax to auditor genera], 177. suing out writ, 425. DELEGATED AUTHORITY. council to board of assessors, 333. generally, 373. legislature to council, 316. DELINQUENT TAXES, certificate of county clerk in re, 176. conclusivencss of decree, as to amount of, 390. decree in re setting aside, 178. lien for, 143. lien for delinquent drain taxes, 145. payment of. by owner, 179. redemption period, 198. INDEX 702 [REFERENCES TO SECTIONS] DELINQUENT TAXES (Continued), redemption, less than amount due, 199. return* to auditor general, 177. return to county treasurer, 174. return of highway labor tax, 124. sales of, see SALES. DEMAND FOR TAX. necessity of, 161. DEPUTY OFFICERS, appointment of, 47. tax sales by, 183. DECRIPTION OF LANDS, abbreviations in, 82. application to probate court on drain, 263. assessment, on drain, 283. contiguous parcels, 85. decree, 391. deeds, 204. drain, line of, in petition, 249. estopple in re, 86. notice of purchase, 402. order appointing special commissioners on drains, 268. personal property, 87. platted lands, 84. real property, 81. return of special commissioners on drains, 271. section lands 83. special assessment district, 322, 344. tax statements, 88. DETERMINATION, final order, on drain, 279. first order on drains, requisites of, 258. first order identifies drain, 262. necessity of public improvement, 321. notice of, 338. particulars of, 322. special assessment district, 344. DIRECTING STATUTES, filing drain records with board of supervisors, 286, 296. first order on drain within ninety days, 256, 257. DISAGREEMENT, jury, on drain, 275. special commissioners, on drain, 272. 703 INDEX [REFERENCES TO SECTIONS) DISCRETION, bids for public improvements, 477, 478. bids and sale of drain, 249. commissioner, in locating drain, S49. delay in proceedings, 277. DISTRICT, description of, public improvement, 322. determination of, 344. DIVERSION OF STREAM, change of drain, 254. right to, 312. DOG TAX, nature of, 132. DOLLAR MARK, decree, omission of, fatal, 377, 391. valuations, 93. DOUBLE TAXATION, unconstitutional, 14. DRAINS, adjournment of special commissioners, 270. appeal from assessment, 284. application to probate court, special commissioners, application of probate court, description of lands, 2' appointment of special commissioners, 267. apportionment of benefits, 282. bridges and culverts, 310. certiorari, 424. certiorari, allegations of injury, 426. certiorari, collateral actions with, 427. certiorari, errors not cured by return, 428. certiorari, explanations permissible in, 429. certiorari, time of suing out writ, 425. change of, 254. citation from probate court, 264. collateral attack on, 454. constitutionality of drain laws, 302. constitutionality of powers, 301. construction of, 288. costs and expenses, 285. de novo proceedings, 278. delay in proceedings, 277. INDEX 704: [REFERENCES TO SECTIONS] DRAINS (Continued), description of lands assessed, 283. disagreement of jury on, 275. disagreement of special commissioners, 272. drain funds and orders, 291. drains in highways, 305. drains, private, in highways, 306. drains, private, 307. drain laws, various, 303. equity jurisprudence over, 430. estopple in re, 226. ex parte proceedings, 260. first order on, 257. final order on, 279. hearing in probate court, 266. interest on drain taxes, 294. intersection of drains, 255. jurisdiction, board of health, 247. jurisdiction, county and township, 245. jurisdictional because of public health, 246. jurisdiction, territorial, 244. liability for drain tax, 292. lien for drain tax, 145. mandamus in re drain tax, 417. municipal liability, 293. municipal liability for flooding, 306. necessity of drain, 258. notice of assessment, 280. notice of proceedings in probate court, 265. notice of sale, 280. notice, proof of service of, 265. oath of special commissioners, 269. obstructing drain, 311. outlet for drain, 309. order appointing special commissioners, 268. parties, complainants, 443. parties, defendants, 447. petition, action, on one, 248. petition, deepening and widening, 253. petition, description of drain, 249. petition, recitals in, 251. petition, signers of, 250. petition, signers' liability for costs, 294. petition, surplusage in, 252. practice, 441. presumptions, 304. qualification of drain commissioner, 242. records, completness of, 295. records, filing, 296. release of right of way, 259. release, attempt to obtain, 260. 705 ' 1NDEX [REFERENCES TO SECTIONS] DRAINS (Continued), release when unnecessary, 281. res judicata, 457. return of jury, 274. return of special commissioners, 271. riparian rights, diversion of stream, 312 riparian rights on lakes, 313. riparian rights, percolating waters, 315. riparian rights, surface waters, 314. sale of drain, 281. sale of land for drain tax, 290. statutes, construction of, 297. statutes, healing acts, 300. statutes, saving clauses and amendments, 28. statutes, validating acts, 299. supervisor, 287. supervisors, board of 286. survey of drain, 256. tax roll, 289. township, not liable, 293. trespass, 414. venire for jury, 273. DRAIN COMMISSIONERS, action of, on one petition, 248. appointment of special, 243. de novo proceedings, 278. delay in proceedings, 277. determination of, 257, 258. ex parte proceedings of, 260. jurisdiction of, for benefit of public health, 24. jurisdiction of, county and township, 245. jurisdiction of, territorial, 244. liability of, for outlet, 309. petitioners liable to, 294. qualification of, 242. party defendant, 447. DRAIN FUNDS AND ORDERS, nature of, 291. orders not negotiable, 288. township not liable for, 293. DRAIN TAX, bill to quiet title, in re, 440. board of supervisors to order spreading of, 283, 286. certiorari, in re, 424, 429. complainants in bill to set aside, 443. defendants in bill to set aside, 44T. INDEX 706 [REFERENCES TO SECTIONS] DRAIN TAX (Continued), interest on, 294. lien on land, 145. mandamus, to compel spreading of, 286, 287. roll to identify drain, 289. sale of land for, 290. supervisor to spread, 287. EDUCATIONAL INSTITUTIONS, exemption of, from general taxation, 59. exemption does not apply to special improvements, 345, fees for institutes, legal, 27. EJECTMENT, action of, 419. recovery for improvements and taxes, 419, 420. recovery of homestead lands, 216. ELECTORS, action of, in re taxes, 115. method of raising tax, 125. record of meeting of, 116. EMINENT DOMAIN, application for special commissioners, on drain, 262. application, hearing on, 266. appointment of special commissioners on drain, 267. citation on drain, 264. citation, service and return on, 265. disagreement of jury, 275. disagreement of special commissioners, 272. oath of special commissioners on drain, 269. order appointing special commissioners, 268. return of jury on drain, 274. return of special commissioners on drain, 271. special assessments and eminent domain, 316. venire for jury, 348. ENGINEER, authority of, on improvements, 364. EQUALIZATION, certificate of, 109. counties, 106. effect on township tax, 108. record of, 107. 707 INDEX [REFERENCES TO SECTIONS] EQUITY JURISDICTION, amendments to pleadings, 449. amount of tax 433, assessment on drain not under, 285. assessment for improvements not under, 355. auditor general as defendant, 440. averments, 448. bill to quiet title, 439. bill restraining expenditures, 435. bill of review, 451. bill to set aside drain tax, 446. board of reviews, action not under, 102. cloud on title, 439. cloud on title, drain tax, 424. collateral attack of tax decree, 453. collateral attack on special assessments, 455. drain proceedings in probate court not under, 281. injunction to restrain waste, 434. legislature regulation of injunction, 432. parties, complainant, 442. parties, complainant on drains, 443. parties, defendant, 445. parties, defendant on drains, 426. petition for writ of assistance, 401. res judicata, 456. restraining collections of tax. 436. special assessments, 431. ESTIMATES, board of, 332. improvements, 337. township taxes, 116. ESTATE OF DECEASED PERSONS, see ADMINISTRATOR ESTOPPLE, board of review, not appearing before, 94. delay in bringing suit, on drains, 425. descriptions, erroneous, 86. drain, changing, 254. drain proceedings, 226, 430. general principle, 225. petition to set aside sale, 399. public improvements, 376. state, from demanding interest, 32. EVIDENCE, decree, 375. healing acts, 459. INDEX 708 [REFERENCES TO SECTIONS] EVIDENCE (Continued), presumptions, in general, 241. presumptions from assessment, 238. presumptions from records, 240. records, 232. return of sheriff to tax notice, 403. streeting opening cases, 452. tax not presumed collected, 239. tax rolls, 238. time of payment, 160. EX PARTE PROCEEDINGS, appointment of special drain commissioner, not, 243. apointment of special commissioners not, 265. assessments, not, 280. determination, 257, 258, 264. drains, 260. release of right of way, 260. EXCESS, decree for, final, 193. duty to raise above statutory limit, 118. tax, on roll, 48, 142. township treasurer liable for, when collected, 166. EXEMPTIONS, church and school property, 59. church property and special assessments, 345. contracts exempting property from special assessments, 347. copy rights, etc., 70. debts to be deducted from amount of valuation, 71. farm lands, from city taxes, 57. legislative power to exempt property, 57. personal property, 71. public property, 58. public property from special assessments, 346. railroad property, from general taxation, 34. stock of corporations, 65. statute, construction of, 345. EXPENSES, see "Cosrs AND CHARGES." EXPORT DUTIES, levy by state illegal, 30. EXPRESS COMPANIES, tax on, 31. 709 INDEX [REFERENCES TO SECTIONS] EXTENSION, roll, 140. taxes, 141. warrant, 150. EXTRAS, public improvements, illegal, 363. FARM LANDS, * exemption of, from city tax. 57. FEDERAL CONSTITUTION, Art. I, Par. 2, 8 10, as to import duties. 18. Art. IV, Par. 1, 2, as to citizens of other states, 16. FEES, attorney, 285. collector, 166. drain commissioners clerk, 285. institute, 27. license, 15. officers, in tax proceedings, 363, 374. FENCE VIEWER'S TAX, validity presumed, 133. FERRIES, license for, 22. FILING PAPERS, final order on drains, S75. necessity for, on drains, 296. FINAL ORDER, drains, 279. FIRST ORDER, identification of drain in, 262. requisites of, 258. FIXTURES, public property, and personal, 63, 76. real estate, when, 61. INDEX 710 [REFERENCES TO SECTIONS] FLOODING, liability of municipality, 308. surface water, 314. FOREIGN CORPORATIONS, assessment of stock of, 14. inheritance tax on, 40. FORMS, appointing of board of review, 284. apportionment of benefits, 282. certificate of board of assessors, 356. certificate of drain tax roll, 289. claim of appeal, 284. citation, 264. determination after hearing objections, 321. determination, 321. declaration against a municipality, 409. first order, 257. final order for determination, 279. instructions to assessors, 333. jury to sign, 274. notice of review of assessments, 339. notice of sale, 280. notice of sale for taxes, 402. oath of board of review, 284. order of hearing on claim of appeal, 284. order confirming report of jury, 276. oath of special commissioners, 269. order appointing of special commissioner, 268. order for appointment of special guardian, 263. printer's affidavit, 265. petition, 262. petition for cleaning out drain, 252. petition for drain, 251. resolution authorizing bonds, 369. resolution approving rpll, 357. report of board of review, 284. return of special commissioners, 271. release of right of way, 259. sheriff's oath, 273. summons, 266. FOREST PRODUCTS, assessment of, 77. / FRANCHISES, street railway, taxable, 35. 711 INDEX [REFERENCES TO SECTIONS] FRAUD, board of review, 96. conveying pryoperty to avoid tax, 183. crediting tax, 155, 157. drain commissioner, by reason of interest, 142. lessee, 190. life tenants, 182. mortgagee, 189. presumption of, does not arise from excessive ale, 180. public officer, I'M re sale, 181. public officer as purchaser, 192. purchaser at sales, see "PURCHASERS." tenants in common as purchasers, 180. valuation, as avoiding tax, 92. FREEHOLDER, who is, FUNCTIONS, board of review, 94, 99. board of review on drains, 284, 286. drain commissioner, 260. local officers on drains, 244. special commissioners on drains, good roads, law of, 325. HEALING ACTS, applicability of, 223. auditor general's petition, 399. de novo proceedings on drains, S78. drain proceedings, 300. hearing before board of review, 94. legalizing acts, 219. misnomer, 78. missing records, 228. notice as to probate court proceedings, 865, 266. probate court, in rt drains. 266. purpose of healing acts, 222. retroactive statutes, 221. review of assessments for public improvements, 355. special improvements, 375. validating acts on drains, 299. HEARING, auditor general's petition, 188. board of review, 94, 99. notice of, on drains, 865, 266. probate court, on drains, 866. INDEX 712 [REFERENCES TO SECTIONS] HEIRS, assessment of, 78. HIGHWAY TAX, action of board of supervisors in re, 126. estimates of, 123. future use, illegal, 122. generally, 121. miscellaneous, 125. return of highway labor, 124. HIGHWAYS, drains in, 244, 305. obstruction of drains in, 305. private drains in, 306. HIGHWAY COMMISSIONER, citation need not run to, on drains, 264. drains, care over, 312n, 344n, 305n. road machine for, 125. HOMESTEAD LANDS, designation of, 5.3. statute of limitations in re, 216. taxation of, 54. HUSBAND AND WIFE, purchasers of title by, 189, 191. relation, when they join in suit, 429. service of citation on drains, 429. IMPROVEMENTS, bids for, public, 360. bids, irregularities in accepting, 361. claim of defeated title purchaser for, 421. contract for public, 362. determination in re public, 321. determination in re necessity, 317. determination, particulars of, 322. estimates for public, 337. extras in re public, illegal, 363. general tax for improvements void, 6. notice of public, 338. parks, cannot assess special tax for, 329. pavement, power to make, 325. patented articles for public, 336. petition for special improvements, 318. 713 INDEX [REFERENCES TO SECTIONSl IMPROVEMENTS (Continued), plans and specifications for public, 335. public buildings, tax for valid, 7. publication of notice I'M re improvements, 341. reasonable time to build sidewalks, 328. recovery for, by defeated tax title purchaser, 410, 411. sidewalks, power to make, 327. sidewalks, reasonable time to make, 326. state cannot tax for, 0. vote for public, 319. tax proceedings are, 179n. INHERITANCE TAX, what subject to, 40. INJUNCTION, cloud, on title, what is, 438. collection of tax, 436. drain proceedings in re, 430. equity jurisprudence, amount involved, 433. expenditures, 435. legislative regulation of, 432. mandamus to review court in allowing, 416. quieting title, 437, 439. special assessments, 431. waste, restraining, 434. INTERNAL IMPROVEMENTS, general tax for, invalid, 6. INTERNAL REVENUE, protective tax is, stamp duty on court proceedings, invalid. 41. INTEREST, drain taxes, 294 a. INTEREST IN LAND, homestead lands, 54. right to pay taxes, 179. separate, to whom assessable, 52. tenants in common, 56. INTERPLEADER, bill of, tit re drain tax. 291. INDEX 714: [REFERENCES TO SECTIONS] INTERSECTION OF DRAINS, permissible, when, 255. JOINT ACTION, township drain commissioners, illegal, 244. JOINT TENANTS, liability of, for tax, 52, 154. purchasers of tax titles by, 182, 186, 191. release of one, on drain, a nullity, 259. right to pay taxes, 179. JUDGMENTS, compelling payment of, 118. JURISDICTION, auditor general, to cancel sale, 397. board of health, none on drains, 247. circuit court commissioner, none in re tax deeds, 214. drain petition, action on one, 248. drain commissioner, for public health, 246. drain commissioner, territorial, 244. equity, to open decree, 399, 401. See CIRCUIT COURTS IN CHAN- CERY. equity, over drain proceedings, 430. JURY, condemnation proceedings, 323. disagreement of, 270. qualification of, 461. return of, 274. venire for, 273. KNOWLEDGE, see ESTOPPLE. LAKES, ' drainage of, 313. LAND CONTRACTS, holder of, cannot purchase tax title, 188. inheritance tax on, 40. taxation of, 63. LANDS, see REAL ESTATE. 715 INDEX [REFERENCES TO SECTIONS] LEGALIZING ACTS, validity of, 219. see HEALING ACTS. LESSEE, purchaser of tax title, 190. LEVY OF TAX, action of electors, 115. action of board of supervisors, 109. action of township .board, 117. action of supervisors on drain tax, 286. amount to be raised in township, 118, 120. amount of special assessment to be raised each year, 350. apportionment of drain tax, 282. certificate of board in re general tax, 139. certificate on special assessment roll, 356. confirmation, of special assessment roll, 347. miscellaneous provisions in re special assessments, 351. non-residents, on special assessment roll, 348. notice of apportionment of drain tax, 280. notice of township board, meeting, 119. review of special assessments, 355. supervisor to spread drain tax, 365. valuation, on special assessment roll, 349. LEVY TO COLLECT TAX, demand for tax, 161. levy for tax, -163. levy upon railroad property, 164. payment, what is, 155. payment, certificate as, 156. payment, involuntary, 158. payment, voluntary, 157. protest, common law, 159. protest, statutory, 160. sale under, 165. tax receipts, 162. LIABILITY, agents, 76. bank stock, tax on, 68. city, for acts of engineer, 364. city, on bonds for improvements. 369. city, on contract for improvements. 361. city, for excess of cost over tax, 330. city, on extras, 363. city, for special improvements. 368. collector, for acts under his warrant, 158. INDEX 716 [REFERENCES TO SECTIONS] LIABILITY (Continued), collector, on his bond, 152. collector, , for failure of duty, 153. collector, for false return, 174. collector, on levy, 163. drain tax, 292. drain commissioner, for . insufficient outlet, 309. flooding premises, 308. general, for tax, 154. life tenants, 52. mortgagees, ,154. non-performance of contract for improvement, 365. non-return of lands to auditor .general, 177. partners, 74. petitioners for costs on drains, 294. reassessed, drain tax, 292. townships, for drain moneys, 293. townships, for special taxes embezzled, 167. undivided interest, owners of, 56, 78. LICENSE, amount does not depend upon valuation, 89. ex post facto regulations, 22. ferries, 26. interstate commerce, as affecting, 17. liquor, 20. liquor, collection of, 25. liquor dealer, 23. liquor dealer's bond, 24. liquor, limits of sale of, 21. nature of, 14. reasonable, 18. trading, 19. uniformity of charge, 16. LIENS, agents, who pays tax, 63, 76. drain tax, 145. enforcement of, on personal property, 146. improvements, 262, 263. mortgagee, for tax, 189. personal property, 146. real estate, 143. state swamp lands, 144. LIGHTING TAX, validity of, 8. INDEX [REFERENCES TO SECTIONS] LIMITATIONS, accounts, 217. authority of city engineer, 364. board of public works, in re contracts, 363. homestead lands, 216. legalizing acts, 219. special assessments, 330. statutes, 214. tax deeds, 215. tax deeds fraudulently acquired, 184n. LIQUOR TAX, collection of, 25. license to sell liquor, 20. limits of sale of liquor, 21. liquor dealer, 23. liquor dealer's bond, 24. LOAN, liability for city bonds, 369. purpose of, 137. vote for, not alternative, 125. LOCATION, choses in action, 63. corporations, 72. estates and incompetents, 63n, 75. farm property, within city limits, 57. forest products, 74. inheritance tax, 40. legality of tax, as affected by, 14. non-residents, property of, 77. partnership property, 74. place of taxation, in general, 75. uniformity of tax, as affected by, 13. LOGS, assessment of, 61. assessment of forest products, 77. locus of assessment, 74. LOTS, description of, 84. machines, for road, 125. MANDAMUS, board, to order drain tax spread, 286. drains, in general, 417. INDEX 718 [REFERENCES TO SECTIONS] MANDAMUS (Continued), official duties enforced by, 415. payment of bonds or judgment enforced by, 118. payment of drain orders enforced by, 291, 226. payment of money enforced by, 291. special improvement in re, 418. supervisor compelled to spread drain tax by, 287. MARINE PROPERTY, ferries, license for, 22. vessels, locus of, 62. MATERIALS, patent on, 367. use of, in street, 367. MISAPPROPRIATIONS, effect of, on tax, 137. raising money to pay void orders, 125. raising money . for a concealed purpose, 317. MISNOMER, effect of, 78. MISTAKE, certificate of payment, 155. clerical errors in recording, 125. crediting tax, 157, 158. dimensions of drain, 257. omission of property from roll, 92. petition for drain, 249. records, 237. special commissioner, name of, 268. , MORTGAGEES, inheritance tax, 40. liability of, for tax, 154. purchasers of tax titles, 189, 403. MUNICIPALITIES, accounting with collector, 166. accounting with county treasurer, 168. accounting between county and townships, 170. accounting with school districts, 167. accounting between state and county, 171. accounting between townships, 169. assessments for parks, water works, etc., 329. 719 INDEX [REFERENCES TO SECTIONS] MUNICIPALITIES (Continued), bonds for improvements, liability on, 369. city engineer, authority of, 364. claims, presenting to council collateral, attack of organization of, 43. contract for improvements, liability on, 362. contract for improvements, non-performance of, 366. de facto officers, 44-47. drain tax, not liable for, 292, 293. duty to pay debts, 118. extras, not liable for, 363. legislative allowance of claims, 220. liability for public improvements, 368. liability for special taxes embezzled, 167. liability for excess of cost of improvement, 330. organization of, 42. power to make assessments, 316. power to license, 15, 25. power to pave, 325. power to sewer, 326. power to make sidewalks, 327. power to tax, 3. state taxes, liability for, 172. statutes governing are not contracts, S. statute of limitations, does not apply to, 217. suits against to. recover back tax money, 409. NATIONAL BANKS, assessment of, 69. NECESSITY, drains, 308. public improvements, 321. NEWSPAPERS, designation of, by auditor general, 382. notice of assessment on improvement, 339. notice for bids, 340. notice of proceedings in probate court, 265. notice of public improvement, 388. notice of sale of drain, 280. publication, by auditor general, 383. publication, details of, 384. publication, proof of, 184, 385. publication, drain notice, 265. publication, proof of. on drains, 265. publication of notice for bids, on improvements, 241. publication, proof of. 342. INDEX 720 [REFERENCES TO SECTIONS] NON-RESIDENTS, assessment of personal property of, 77. inheritance tax against estates of, 40. owners* of real estate, 79. NOTICE, assessment of drain, 280. bids, for improvements, 340. board of review, 95, drain proceedings in probate court, 265. electors' meetings, 116. public improvements, 338. publication of in re bids, 341. sale of drain, 280. service and return of, 342. special assessments, 339. tax purchaser to original owner, 403. township board meetings, 119. OATH, special commissioners on drain, 269. OBSTRUCTION, highway drains, 311. OCCUPANT, liability of, for tax, 52. purchaser of tax title, 185. OFFICERS, auditor general, see that title. council, qualification of members, 372. county treasurer and liquor tax, 20. de facto, 44. deputy officers, 47. drain commissioner, jurisdiction of, 244-250. drain commissioner, qualification of, 242. duties, in re taxes, 168, 173. intruders, 41, 45. purchasing tax titles, 192. record of qualification of, 229. special drain commissioner, 243. supervisor, 46. ORDER, appointing special commissioners, 267, 268. confirming tax sales, 396. 721 INDEX [REFERENCES TO SECTIONS] ORDER (Continued), drain funds, 291. final, on drain, 270. first, on drain, 258. hearing on tax petition, 364. pro confesso, 387. supervisors, to spread drain tax, 28ft. ORDINANCE, definite, 25. public improvements, 320. reasonable, 18. record of vote on, 318. OUT-LETS, liability for insufficient, 309. OWNER, assessment of, 78. duty to complain to board of review, 94. non-resident, 79. refunding taxes to, 200. ORGANIZATION, collateral, attack of, 43. townships, 42. PARKS, ETC., general tax for, valid, S. special assessment for, invalid, 329. PAROL PROOF, authority to raise tax not shown by, 116. cannot show adjournment by, 458. clerical error not shown by, 117. collection of liquor tax shown by, 20. record of equalization not varied by, 107. records original, existence shown by, 377. PARTICULARS, determination for public improvement, 322. estimates for public improvements, 327. plans and specifications for improvements. 335. PARTIES, auditor general's petition, 378. auditor general as defendant, 436. INDEX 722 [REFERENCES TO SECTIONS] PARTIES (Continued), complainants, 442. complainants in drain proceedings, 433. defendants, 445. defendants in drain proceedings, 426. special assessments, 444. PARTNERSHIP PROPERTY, assessment of, 74, 78. railroads, 51. PAJTENTED ARTICLES, use of, by city, 336. PAVING, area assessment, 354. benefit assessment, 353. frontage assessment, 352. power to, 325. PAYMENT, certificate as, 156. common law protest, 159. demand for tax, 161. generally, 155. involuntary, 158. liquor tax, 20. recovery back of tax paid by mistake, 157. reimbursement of purchaser, 210, 212. right to pay delinquent taxes, 179. tax receipts as, 162. voluntary, 157. PEDDLERS, license, 19. trading license, 19. uniformity of charge, 16. interstate commerce as affecting, 17. PERSONAL LIABILITY, administrator, etc., 75. attaches April 1, under Detroit charter, 73. generally, 154. owner of property, 143. persons assessable, 78. wrong person, no liability, 61. 723 INDEX (REFERENCES TO SECTIONS! PERSONAL PROPERTY, assessment of, 61. banks, assessment of, 67. banks, national, 69. banks, savings, 66. choses in action, 63. collection of taxes on banks, 68. corporation stock, 65. debts deducted from assessment, 7L description of, 87. exemptions, 71, 75. exemptions of copyrights, 70. forest products, 77. inheritance tax on, 40. locus of partnership property, 74. locus in general, 76. locus on property of non-resident, 77. mortgages, 64. non-resident owner, to whom assessable, 78. tax statements, 88. vessels, 62. PETITION, auditor general, 360. deepening and widening drain, 253. description of drain in, 249. liability of- signers thereon, 294. public improvement, 318. recitals in drain petition, 251. rights on one drain petition, 248. setting aside sale, 398, 399. signers on drain petition, 250. surplusage in drain petition, 252. writ of assistance, 401, 402. PETITION AND RECORD, appeal from decree, 393. bill of review, 451. cancellation of deed by decree, 397. collateral attack of decree, 453. decree, 390. decree, evidence of, 392. decree, particulars of, 391. descriptions in decree, 81-84. 3S6, 458. designation of newspaper, 382. dollar mark, omission of, 377. filing of, 377. hearing on, 389. jurisdiction of court on. 388. objections to petition, 386. INDEX 724 [REFERENCES TO SECTIONS] PETITION AND RECORD (Continued), opening decree, 398, 399. order of hearing, 381. order pro confesso, 387. parties to petition, 378. proof of publication of notice, 385. publication, details of, 384. publication, substituted service, 383. subpoena, 380. PIPES AND MAINS, assessment of, 51. PLANK ROAD COMPANIES, assessment of, 57. PLANS AND SPECIFICATIONS, public improvements, 335. PLATS, descriptions according to, 84. PLEADING AND PRACTICE, amendments, 449. averments, 448. certiorari, in re drains, 424-429. opening decree, 451. POLICE POWER, dog tax, 132. license, 15. special improvements not within, 316. POST FACTO LAWS, see "Ex POST FACTO LAWS." POWER, auditor general, to cancel deed, 397. board of review, 94-102. bonuses, to grant, 9, 10. delegated powers, 373. delegated to assessors, 333. delegated to council, 316. double taxation, 14. drain tax, necessity for, 258. equity, in drain proceedings, 301. 725 INDEX [REFERENCES TO SECTIONS) POWER (Continued), equity, to set aside decree of sale, 898, 899. inheritance tax, 40. internal improvements, 8. interstate commerce, 17. license, 15-26. lighting and water works, 8. 329. municipal power, 3. parks, 329. paving, 325. privilege tax, 38. public buildings, 7. purpose of, 4, 5, 317. sewers, 326. sidewalks, 327. special assessments, 316. specific taxes. 30. sprinkling, 329. state, to tax, 1. state tax commission, 112. street railways, 11. PRACTICE, action, form of, 405. actions at law, in re drain improvements, 406. amendments, 449. amendments, in re special assessments, 450. amount involved, in equity, 433. assumpsit against municipalities, 409. auditor general, as defendant, 446. averments, 448. bill to quiet title, 439. bill of review, 451. bill to quiet title, in re drain tax, 424 bill restraining drain proceedings, 440. BILL, certiorari, in re general tax, 436. certiorari, in re drains, allegations in. 416. certiorari, collateral with other actions, 488. certiorari, errors not cured by return. 429. certiorari. explanations in return of, 454. certiorari to general tax not favored, 421. certiorari to drain tax, favored, 425. certiorari to special assessments, not favored, 4S3. certiorari to drain tax, time of bringing, 4SS. claim for improvements. 420, 481. cloud on title, what is. 438. collateral attack on decree. 453. collateral attack on special assessments, 455. INDEX 726 [REFERENCES TO SECTIONS] BILL (Continued), collector, action against, 408. county treasurer against township treasurer, 166. ejectments, 419. equity jurisdiction of special assessments, 431. evidence before jury in street opening cases, 452. legislative regulation of injunction, 432. lien for taxes paid, 143. mandamus, to pay money, 413. mandamus, to other duties, 415. mandamus, to review action of court, 416. mandamus, to spread drain tax, 441. mandamus, in re special assessments, 418. parties to petition of auditor general, 361. parties complainant, 442. parties complainant on drains, 443. parties, in re special assessments, 444. parties defendant, in chancery, 445. parties defendant, drain proceedings, 426. petition to auditor general to set aside sale, 397. petition to court to set aside sale, 398, 399. presenting claim to council, 410. replevin, 411. res judicata, 456. restraining collection of tax, 436. restraining waste, 434. restraining sale of land, 437. restraining expenditures, 435, suits against state, 407. supervisors action for tax, 48, 405. trespass, 413. trespass, in re drain proceedings, 428. trover, 412. writ of assistance, 401. PRESUMPTIONS, assessments, 238. assessments for improvements, 371. collection of tax, 239. deeds, 209. existing records, 240. generally, 241. healing acts, 222, 223. tax roll, 459. PRIVILEGES, tax on, 38. 727 INDEX [REFERENCES TO SECTIONS] PROBATE COURT. application for special commissioner. 262. appointment of special commissioner, 167. citation, 264. de novo proceedings, 278. ex parte proceedings in, 260. hearing, for special commissioners, 266. inheritance tax determination, 40. notice of hearing, on drains, 965. order appointing special commissioners, 168. venire for jury, 273. PROTECTIVE TAXATION. state cannot levy tax for, 89. PROTEST, common law, 159. demand for tax, 161. involuntary payment, 158. voluntary payment, 157. PUBLIC HEALTH, necessity of drain for, 246. PUBLIC POLICY, notes for payment of tax invalid, 20. rolls must be unchanged, 50. township treasurer must account for excess. 166 PUBLIC PROPERTY, appropriation for, by supervisors, 136. exempt from tax, 53. exempt from special assessments, 846. tax for, 7. PUBLICATION, auditor general's petition. 367. citation on drain. 265. notice of assessment district, 341. proof of, 265, 342. PURCHASER, caveat emptor, 194. generally, of tax titles, 184. husband and wife, as, 191. lessees as, 190. life tenants, as. 182. INDEX 728 [REFERENCES TO SECTIONS] PURCHASER (Continued), mortgages as, 189, 403n. occupants as, 185. payment by purchaser, 193. public officers as, 192. reimbursement of, 212, 213. state tax lands, 199. surplus, 195 tenants in common, as, 186. vendee, in land contract, as, 188. PURPOSE OF TAX, accumulation of money forbidden, 5. bonuses for factories illegal, 10. bonuses for railroads illegal, 9. generally, 4. general tax for public improvement, 7. highway tax, 122. internal improvements forbidden, 6. lighting and water, 8. protective purposes illegal, 30. school tax, 127. special assessment must state correct purpose, 317. special funds, 4. street railway purchase illegal, 11. QUALIFICATION, / de facto officers, 44. officers, 372. title to office, 455. voters on bonds, 319. QUIETING TITLE, bill to quiet title, 439. bill to quiet title in re drain tax, 440. cloud on title, 438. restraining sale of land, 437. RAILROAD COMPANIES, bonus for, illegal, 9 culverts over drain, 259. exemption from general tax, 34, 60. power to purchase, unconstitutional, 11. release of right of way for drain, 327. sale of property of, on levy, 164. street railways, taxation of, 35. taxes on, 32. union depot companies, tax on, 33. 729 INDEX (REFERENCES TO SECTIONS] RATIFIED ACTS, special assessments. 374. REAL PROPERTY, abbreviations in descriptions, St. contiguous parcels, descriptions of, 85. corporate realty, 55. description of, 81. estopple in description of, 86. exemptions, 57. exemptions of educational institutions, 59. exemptions of public property, 58. exemptions of railroad property, 60. fixtures, when real estate, 61. generally, to whom assessable, 51, 78. homestead lands, 53. lien upon, for tax, 143. lien upon state swamp lands, 144. lien, when tax deed is void, 211, 213. non-resident owners, 79. platted lands, description of, 84. real estate, what is, 51. section lands, description of, S3. separate interests, assessment of, 51. tenants in common, assessment of, 56. unoccupied lands, 80. REASONABLE TIME, building sidewalks, 328. ccrtiorari in re drain tax, 425. petition to set aside tax deed, 398, 399. RE-ASSESSMENT. excuse for not paying first assessment, 156. rejected taxes, 105. special assessments, 359. RECEIPTS, tax, as evidence, 16S. RECORD. absence of, 230. acts validating drain proceedings, 300. amendments of, 235. board, ordering taxes re-assessed, 105. bonds, for improvements, 369. certificates, etc., as evidence, 441. collateral attack of. 234. INDEX 730 [REFERENCES TO SECTIONS] RECORD (Continued), collection of liquor tax, 20. completeness of drain records, 295. determination of necessity of improvement, 370. equalization, 107. evidence of, 232. filing drain records, 296. healing acts, 222. healing acts in re drains, 301. healing acts, when not applicable, 223. meeting of electors, 116. meeting of township board, 117. missing, 228. mistakes in, 188. nature of, 227. omitting to record, 232. presumptions, as to assessments, 92. presumptions, in general, 241. presumptions, in re existing records, 240. qualification of officers, 229. records, what are, 231. rejected taxes, 105. signatures. on, 99, 287. supplying, 232. tax roll as evidence, 297. vote, in re improvement, 319. REDEMPTION, change in time of, 199. less than taxes due, 199. owner, from tax title purchaser, 198. period of, on state bids, 198. refunding tax, 200. REFUNDING TAXES, defeated purchaser's right to, 202, 203. generally, no power, 91. loss sustained by, 171. REJECTED TAXES, county treasurer, 174. reassessment of, 105. RELEASE OF RIGHT OF WAY, attempt to obtain, 260. drains, 259. immaterial, when, 261. 731 INDEX [REFERENCES TO SECTIONS) RENTS, credit, when, 71. REPLEVIN, action for, 393. REPORT OF SALE, auditor general, 395. county treasurer, 377. RES JUDICATA, nature of, 456. drain proceedings, 457. RESIDENCE, corporation, 72. taxpayer, 73. RETROACTIVE STATUTES, legalizing acts, 219. nature of, 221. RETURN, auditor general, of delinquent taxes, 177. certificate of county clerk, 176. citation, 265. county treasurer, from municipality, 174. highway labor tax, 124. jury on drains, 274. notice of, in re special assessments, 342. right to pay delinquent tax. 170. special commissioners, on drains, 970. . tax, when decree is set aside, 178. writ of certiorari, on drains, 418, 429. REVIEW, appeal to board, 92. assessment on drains, 285. bill of review, 451. board of review, 94. board of supervisors, 112. certificate of board. 100. collateral attack of certificate of, 101. equity will not renew apportionments, 430. 440. estopple for not appearing before board, 94. notice of action of board, 95. notice of special assessment. 339. INDEX 732 [REFERENCES TO SECTIONS] REVIEW (Continued), omission of property by board, 92.. powers of board, 99. review of action of board, 96. review of special assessments, 355. review, by state tax commissioner, 97. signature of board on roll, 101. tax decree, 376. time of meeting of board, 98. RIPARIAN RIGHTS, assessable separately from fee, 51. drains, 313. ROAD DISTRICTS, return of highway labor tax, 124. road machines, 125. ROLL. amount to be raised, special assessments, 350. board of review, powers of, 99. certificate of board of review, 100. certificate on collector's roll, 139. certificate on special assessment roll, 356. change in, by board of review, 94. change in, by supervisor, 50. collateral attack on, 102. confirmation of special assessments, 357. description of lands, 81-84. dollar mark, on roll, 93. evidence of regularity of tax, 238. extension of taxes on collector's roll, 140. excess of roll, 374. excessive valuation, 90. franchises, valuation of, 92. miscellaneous requirements of special assessment, 351. notice of action of board of review, 95.- omission of property from, 92. omission by mistake, 92. possession of roll, 48. review of board of review, 96. review by state tax commissioners, 97. review of special assessment, 355. residents and non-residents, on special assessments, 348. signature on roll, 101. statute in re 50n. supervisor to make and deliver, 48. time of meeting of board of review, 98. valuations on, 89. valuations on special assessment roll, 349. 733 INDEX [REFERENCES TO SECTIONS] SALE, amount of land sold, 180. bill of review, 388. caveat eniptor, 194. certificate of error, 380. contract for public improvement, 362. cumulative tax titles, Ml. drain, 281. entry of premises without notice, 403. fraud in sale, 181. husband and wife as purchasers, 191. lands, for drain tax, 290. lessees as purchasers, 190. levy, in general, 165. life tenant as purchaser, 187. lowest bidder for improvement, 363. minors and incompetents, 362. mortgagees as purchasers, 189. non-performance of a contract, 365. notice for bids on improvements, 340. notice of sale of drain, 280. notice of tax purchase, 223. occupant, as purchaser, 185. order of confirmation, 396. payment, 193. payment of accrued taxes. 197. petition to court to set aside, 399. public officers as purchasers, 192. publication of notice for bids, 341. purchasers, in general, 184. railroad property on levy, 164. redemption, state bids, 198. report of, 394. report of, to auditor genera!. 305. refunding of tax, by owner, 200. sale for less than taxes due, 199. several parcels sold as one, 182. state tax lands, 197. surplus arising from, 195. tenants in common, as purchasers. 186. vendee in contract as purchaser, 188. vendors, who may be. 1*3. writs of assistance. 401. writs of assistance, under the statute. 402. writs of assistance, defenses to, 403. SCHOOL TAXES. accounting between school districts, 167. authority to raise, 129. higher education, 128. miscellaneous. 130. purposes of, 127. INDEX 734 [REFERENCES TO SECTIONS] SERVICE, citation on drain, 265. notice, in re improvements, 342. SEWERS, assessment according to area, 354. assessment according to benefits, 353. assessment according to frontage, 352. power to build, 326. SHARES, assessment of, 64. banks, 67. collection of tax, 68. foreign corporations, 14. inheritance tax on, 40. national banks, 69. savings banks, 66. SIDEWALKS, materials in, 367. reasonable time to build, 328. power to build, 327. SIGNATURES, board of review on roll, 101. drain petition, 250. first order on drains, 257. liability of signers on drain petition, 294. records, 236. supervisors' proceedings, 108. supplying, 232. SPECIAL ASSESSMENTS, actions at law, 406. amendments to chancery bill, 450. assessment district, 344. assessment according to area, 354. assessment according to benefits, 353. assessment according to frontage, 352. bids for work, 360. bids, lowest, 361. board of assessors, 333. board of estimates, 332. board of public works, 331. certificate on roll, 356. certiorari, 423. collateral attack, 455. 735 INDEX [REFERENCES TO SECTIONS] SPECI A L ASSESSMENTS (Continued), comprehensiveness of terms, 384. contract for the work, 361. contract, extras, 363. contracts to exempt property from, 347. confirmation of roll, 357. costs and expenses, 343. delegated authority, 373. determination to make improvement, 321. determination, particulars of, 322. determining amount paid by city, 334. engineer, authority of, 364. equity jurisdiction, 3. estimates, 337. estopple, 376. evidence before jury, 452. exemptions, church property, 345. exemptions, public property, 346. healing acts, 375. hearing or review, 355. jury, 323. liability on bonds for work, 369. liability for the work, 368. limitation of assessment, 330. mandamus, 401. non-performance of contract, 365. notice of assessment, 339. notice for bids, 340. notice of proposed improvement, 338. ordinance in re, 320. ownership in materials in streets, 367. parks, etc., 329. parties to action, 444. patented articles, 334. petition for public improvement, 318. plans and specifications, 335. power to levy assessment, 316. power to pave, 315. power to make sewers, 326. power to build sidewalks, 327. presumptions, 371. publication of notice, 341. purpose of amendment. 317. qualification of officers. 372. railroad property, assessment of, 847. ratified acts. 374. reasonable time to build. 8S8. reassessment. 359. record, 370. residents and non-residents, 848. roll, amount to be raised each year. 850. INDEX 736 [REFERENCES TO SECTIONS] SPECIAL ASSESSMENTS (Continued), roll, miscellaneous, 351. roll, valuations on, 348. service of notice and return, 342. sprinkling streets, 329. stipulated damages for non-performance of contract, 366. vacating assessments, 358. vote, 319. SPECIAL COMMISSIONERS, adjournment of, 270. application for, 262. appointment of, 267. citation, 264. description of lands in application, 263. disagreement of, 272. hearing, 266. notice of application, 265. oath of, 269. order appointing, 268. proof of service of citation, 265. return of, 271. SPECIFIC TAXES, distinction between, and ad valorem tax, 29. express companies, 31. inheritance tax, 40. insurance companies, 36. nature of, 30. option between specific and general taxation, 38. privileges, 38. protective tax, 39. railroad companies, 32. stamp act, 41. telephone and telegraph companies, 37. union depot companies, 33. water power companies, 38. specifications, 335. sprinkling streets, cannot assess for, 329. STAMPS, court proceedings free from, 41. STATE, accounting, with county, 172. delegation of power to council, 316. interest in tax lands bid in for taxes, 206. power of, to tax, 1. return of taxes to, 177. 737 [REFERENCES TO SECTIONS) STATE (Continued), sale of tax lands by, 197. state homestead lands. 53. state tax lands, 198. suits against, 407. STATE DRAINS, jurisdiction of, 244. STATE TAX COMMISSION, appointment of, 113. creation of, 111. powers of, 112. review of taxes, 97. STATE TAX LANDS, conclusiveness of deeds of, 214. designation of, 196. limitation, in re deeds, 216. sale of, 197. STATE TAXES, funds for, 109, 110. STATEMENTS, taxable property, 88. STATUTES, constitutionality of drain acts, 302. construction of, 218. construction of drain statutes, 297. governing municipalities, not a contract, 2. healing cuts on drains, 300. legalizing acts, 219. legislative allowance of claims, 220. limitation, as affecting accounts. 217. limitation, conclusiveness of deeds, 214. limitation in re tax deeds. 215. limitation in re homestead lands, 21*. records, missing, 228. retroactive, 221. saving clauses and amendments to drain laws, I title of acts, 224. % validating acts on drains, 299. (47) s. ^ O *- INDEX 738 [REFERENCES TO SECTIONS] ART. C. L. 2336, equity, by supervisors, 405. C. L. 2856, limiting special assessments, .350. C. L. 2841, making special assessments, etc., a lien in villages, 154. C. L. 2847, renewal of village warrant, special assessments, 150. C. L. 2859, as to general village taxes, 154. C. L. 2866, renewal. C. L. 2868, bringing of suit by village treasurer, 405. C. L. 2871, bringing of suit by village treasurer, 405. C. L. 3207, liability for special taxes in city, 154. C. L. 3318, liability for general taxes in city, 154. C. L. 3329, warrant to city treasurer, 405. C. L. 3334, bringing suit by city treasurer, 405. C. L. 3363, 143. C. L. 3443, as to raising additional highway tax to keep high- ways safe, 116. C. L. 3384, renewal of warrant to city treasurer, 150. C. L. 3825, defining real estate, 51. C. L. 3826, providing to whom property shall be assessed, 52. C. L. 3827, as to assessment of state homestead lands, 53. C. L. 3828, as to assessment of corporate realty, 55. C. L. 3829, as to assessment of lands of tenants in common, 56. C L. 3830, sub. 1, 2, 3, as to exemptions of public property, 58. C. L. 3830, sub. 5, 6, 7, 9, 10, as to exemptions of church prop- erty, etc., 57. C. L. 3830, sub. 4, as to exemptions of educational institu- tions, 59. C. L. 3830, sub. 8, as to exemptions of railroad property, 60. C. L. 3831, sub. 4, as to assessment of vessels, 62. C. L. 3831, sub. 6, as to assessment of choses in action, 63. C. L. 3831, sub. 7, as to assessment of stock of corporations, 65. C. L. 3831, sub. 8, as to assessment of banks, 66. C L. 3831, sub. 11, 16, 51. C. L. 3832, as to exemption of personal property from assess- ment, 71. C. L. 3834, as to assessment of personal property, 62. C. L. 3834, in re locus of assessment, 72. C. L. 3835, as to assessment of partnership property, 74. C. L. 3836, in re residence of tax payer, 73. C. L. 3836, locus of personal property, 63. C. L. 3837, sub. 1-7, locus of personal property, 63, 75. C. L. 3837, sub. 8, locus of personal property of non-residents, 77. C. L. 3838, in re forest products, 77. C. L. 3840, 147. C. L. 3841, as to tax statements, 49. C. L. 3847, as to description of contiguous parcels, 85, 100. C. L. 3848, sub. 1, as to description of section lands, 83. C. L. 3848, sub. 4, as to description of platted lands, 84. C. L. 3848, sub. 5, 35. 7:;:. [REFERENCES TO SECTIONSJ ART (Continued), 8848, sub. 7, as to abbreviations in Hwrf^l*i M 3850, as to valuation*, m. :j-:,i. providing for board of review. 04. 3852, 05. 3852, sub 6, 05. 3857, as to equalization, 106. 3858, as to state taxes. 107. 3850, certifying township taxes to board m 3860, as to county tax. 134. 138. 3861, certifying taxes township 3862, as to extension of taxes, 140. 14 1. 3863, as to lien for tax, 143. 3863, right to bring -.nit i. r tax. 4O5. 3865, in re preparing roll and warrant. Son. 224 3869, demand for tax, 161. 1870, bringing of suit by township treasurer. 4O5, 163. 3875, return of taxes to county treasurer. 166. 3876, payment under protest, 155. 3876, right to pay taxes. 170. 3878, 174. 3879, warrant of county treasurer; right to bring suit. C. L. 3884, petition and record for tax sale, 180. 108. C. L. < 3885, order and hearing. 381. C. L. ( 3886, designation of newspaper, 382. C. L. 38H7, publication of list for distribution. 383, 384. C. L. 3887, objections to tax. 388. C. L. 3887, entry of decree, 300. C. L. 3887, decree. 301. C. L. ft 3880, publication of order and list, and proof of san 4>Cr C. L. 3802, appointment of guardian ad (item. 370. C. L. 3803, report of sale to auditor general. 305. 398. C. L. 3803, as to setting sale aside by court. 398. C. L. 3805, as to writs of assistance. 401. C. L. 3805, as to validity of deed. 205. 200. 214. C. L. 3806, as to redemption of lands. 108. C. L. 3806, as to limitation IN re assailing tax deeds, 21ft. C L. 3807, as to redemption of lands, 108. C L. 3898, as to vacating sales. 446. C. L. i 3001, as to designation of state tax lands, 107 C. L. ! 3002, as to duty of county treasurer to sell lands. 401. C. L. ! 3002. limitation as to asiailmg deed, '.'l'- C. L. i 3007. as to sale of state tax lands. 107. C. L. ! 3012. 218. C. L. 13019, as to reassessing taxes, lotn. C. L. 13021, as to certificate of error. 307. C. L. 13021. as to refunding taxes. 200. C L. 3037. IN rt injunction, 432. INDEX 740 [REFERENCES TO SECTIONS] ART (Continued), C. L. 3949, in re limitation as to homestead lands, 216. C. L. 3950, 216. C. L. 3957, reimbursement of defeated purchaser, 212. C. L. 3957, in re improvements, 213. C. L. 3959, as to notice of tax purchase, 402. C. L. 3959, as to return of service of notice, 403. C. L. 3960, see drain statutes, 401. C. L. 4193-4, as to road machines, 127. C. L. 4334, as to culverts in right of way of railroad com- pany, 259. C. L. 4359, liability for drain tax. C. L. 6277, as to railroads, 32. C. L. 9698, as to limitation to assail tax deed, 215. C. L. 10743, as to taking bond from contractor,- 457. No. 36 of 1865, p. 44, in re export duties, 39. No. 77 of 1879, in re telephone etc. co.'s, unconstitutional, 37. No. 168 of 1881, in re telephone etc. co's, unconstitutional, 37. 115, 116 of No. 153 of 1885, limiting actions, still in force, 215. No. 29 of 1887, in re water companies, 38. No. 204 of 1889, in re license in upper peninsular, 21. No. 174 of 1891, in re railroads, 32. No. 200 of 1891, 64. No. 294 of 1891, 13. No. 26 of 1893, 3, 5. No. 205 of 1893, I'M re inheritance tax, 40. No. 206 of 1893, general tax law, 44, 68. No. 154 of 1897, in re union depot companies, 32-34. No. 423 of 1897, 6. No. 154 of 1899, creating state tax commission, 97, 111. No. 169 of 1899, as to setting aside decree of sale, 178. No. 188 of 1899, in re inheritance tax, 40. No. 228 of 1899, 155. No. 338, local of 1890, 11. No. 39 of 1899, limiting special assessments. 330. No. 90 of 1901, in re railroad companies, 32. No. 173 of 1901, in re railroad companies, 32. No. 178 of 1901, in re bridge companies, 30. No. 26 of 1903, in re insurance companies, 36. No. 183 of 1903, limiting right to file bill in chancery, 432. No. 236 of 1903, 141, as to payment of redemption money to register, 198. No. 222 of 1903, providing for reassessment of drain tax, 291. No. 214 of 1905, in re peddlers, etc., unconstitutional, 21. No. 21 of 1905, local drain act, 286. STOCK, see "SHARES." STONE ROADS, law of, 325. INDEX [REFERENCES TO SECTIONS! STREETS, materials in, 367. power to pave, 325. power to sewer, 328. power to build sidewalks in, 327. power to sprinkle, 329. STREET RAILWAY COMPANIES, tax to purchase, invalid, 11. taxation of, 35. SUITS, see "ACTIONS." SUPERVISOR. change of roll by, 50. drain taxes to be spread by, 286. duty in, re roll, 48. fraud in valuation, 92. omitted property from roll, 92. suits for taxes by, 4'J. in:,. tax statement obtained by, 88. valuation of property, 90. SURETY, liability of, 152. SURPLUS, excess of roll is municipality's, 166. tax sales, 195. SURVEYORS TAX. presumed legal, 131. TAX, accumulation of money illegal. 5. action for. 405. ad valorem basis, 29. agricultural society tax, 133. bonus, void, 9, 10. bounty tax, 134. certificate of payment, 156. common law protest, 159. county tax, 135, 136. demand for tax, 161. dog* tax. 132. double taxation, 14. estimates of highway tax. 123. excess of tax, 142. exemption of railroad companies. 34. INDEX 742 [REFERENCES TO SECTIONS] TAX (Continued), express companies, 31. extension of taxes,. 140. general, for lighting and water purposes, valid, 8. highway tax, 121-126. highway tax for future use, invalid, 122. highway tax, miscellaneous, 125. inheritance tax, 40. insurance companies, 36. interest on drain tax, 294. internal improvement tax, void, 6. levy for, 163. levy, upon railroad property, 164. liability for tax, 15.4. liability for drain tax, 292, 293. license, as a tax, 15. lien, upon real estate, 143. lien, upon personal property, 146. lien upon personal property, enforcement of, 147. lien of mortgagee, 189. lien for drain tax, 145. liquor license, 20. liquors, interstate commerce, 17. order of board to spread tax, 286. payment of, 155. payment, certificate as, 156. payment, involuntary, 158. payment, voluntary, 157. payment of accrued taxes on state bid, 197. power of state to tax, 1. power of municipality to levy tax, 3. privileges, 38. protective purposes, invalid, 39. public building, valid, 7. purpose of, 4. railroad companies, 32. rebating illegal tax, 91. record of vote of township meeting, 116. receipt for, 162. return of delinquent taxes, 174. recovery back of tax paid by mistake, 157. return of highway labor tax, 124. sale of land for drain tax, 290. sale under levy for tax, 165. school tax, 127-130. specific taxes, 30. stamp duty on court records, invalid, 41. street railway companies, 35. street railway purchase, invalid, 11. state funds, 110. state tax, 109. statutes in re taxation, not contracts, 2. 749 INDEX IKK1 -KRK.VCES TO SECTIONS] TAX (Continued). surveyor's tax, 131. telegraph and telephone companies. 37. tolls, valid, 28. uniformity of, 12. uniformity, as affected by location, 13. valuation of property, 89. valuation, excessive. 90. valuation low, 02. vote of electors, 115. TAX DEEDS, presumptions from, 209. see DEEDS. TAX RECEIPTS, evidence, 162. TAX RECORD, see "PETITION AND RECORD." TAX ROLL, see Rom TAX STATEMENTS, owner furnishes, 88. TELEGRAPH & TELEPHONE COMPANIES, taxation of, 37. TENANTS IN COMMON, assessment of, 56, 78. purchasers of homestead lands, 54. purchasers of tax titles, 182, 186. TENANT FOR LIFE, duty to pay tax, 52. TERMS, comprehensiveness of, 324. TIMBER, assessment of, 61. forest products. 77. locus of logs, 74. real property, 51. INDEX . 744 [REFERENCES TO SECTIONS] TITLE OF ACTS, sufficiency of, 224. TOLLS, power to take, 28. TOWNSHIPS, accounting with collector, 166. / accounting with county treasurer, 168. accounting between townships, 169. accounting between township and county, 170. action for taxes, by supervisor, 49. agricultural society tax, 134. bounty tax, 135. certificate of equalization, 108. certifying tax to board of supervisors, 103. certifying township tax, 138. change* in roll of, 50. collateral attack of organization of, 43. collector's bond, 152. collector de facto, 151. collector's liability, 153. collector's liability as affected by warrant, 153. collector's roll, 139. county treasurer as agent of, 20. de facto officers, 44-47. definition of de facto officers, 44. deputy officers, 47. dog tax, 132. electors' action, 115. equalization by board of supervisors, 104. equalization, effect of, 108. excess of taxes, 142. extension of roll, 140, 141. fence viewer's tax, 133. good roads, 325. highway tax, 121-126. liability for drain tax, 293. lighting and water tax, 120. misappropriation of money, 137. notice of board meetings, 119. organization of, 42. record of equalization, 106. record of township meetings, 233. school tax, 127-130. specifying amounts to be raised, 118. state taxes, 110, 111. supervisor, 48. surveyor's tax, 131. township board's action, 117. township tax, 114. INDEX [REFERENCES TO SECTIONS] TOWNSHIP BOARD, levy by, 117. specifying amounts, 118. notice of board meetings, li. TOWNSHIP CLERK, certifies township taxes. 104. TOWNSHIP DRAIN COMMISSIONER, jurisdiction of, 245. TOWNSHIP TREASURER. accounting with, 166. bond of, 152. certificate of county clerk, 176. duties of, 151. liability of, 153. liability, because of defective warrant, 153. return of taxes by, 174. suits against, 252. suits by, 405. warrant of county treasurer, 175. TRESPASS, action of, 413. drain proceedings, 414. entry without notice, 401. TRUSTEES AND AGENTS, assessment of, 76. UNIFORM RULE, special assessments in rt. 316. UNIFORMITY OF TAX, double taxation, 14. licenses, 16. location, 13. necessity of, 12. purpose of tax, 4. UNION DEPOT COMPANIES, taxation of. 32. 33. USE, patented articles in improvements, 336. liability of municipality for, MIL INDEX 746 [REFERENCES TO SECTIONS] VACATING ASSESSMENTS, public improvements, in re, 358. VALUATION, certificate of, 100. dollar mark on, 93. excessive, 90. general rule, 89. low, 92. omission of, by mistake, 92. rebate on account of, 91. VENIRE, jury on drain, 273. VESSELS, assessment of, 62. license for ferry, 22. VESTED RIGHTS, ' statutes in re taxation do not give, 2. VILLAGE TREASURER, suits by, 405. VOTE, method of, 319. record, for special improvement, 318. township board for township taxes, 115, 116. WARRANT, effect of, on bringing suits, 388. county treasurer's, 175. defective does not affect chancery sale, 143. duty of supervisor to attach to roll, 48. extension of, 150. general rule, 149. liability for defective, 153. statute in re, 502. WASTE, injunction to restrain, 434. WATER POWER COMPANIES, taxation of, 38. ' INDEX (REFERENCES TO SECTIONS] WATER TAX, legality of, 8. WATER PIPES, ETC, assessment of. 51. 61. WATER WORKS, special assessment will not lie for, 329. WRITS OF ASSISTANCE, entry of premises without statutory notice, 403. petition for, 401. statute, 402. 000 688 431 e