author: Long, J.

text:
    AUDITOR GENERAL v. PIONEER IRON CO.
    Taxation — Fraudulent Assessment Roll — Remedies.
    Where, on the hearing of objections to the petition of the auditor general for the sale of lands delinquent for taxes, it appeared that the assessor and board of review of a city intentionally omitted a large amount of personal property and real estate from the assessment roll, and greatly undervalued certain personal property and the business and residence property of the city, in order to throw a heavier burden of taxation on the outlying lands owned by the objectors, the entire roll was properly held void as to the latter; it not being incumbent upon them, in such case, to furnish the court with data from which to1 determine the amount they should equitably pay, which would practically involve the making of a new roll.
    Appeal from Marquette; Stone, J.
    Submitted January 5, 1900.
    Decided March 27, 1900.
    Petition by Roscoe D. Dix, auditor general, for the sale of lands delinquent for taxes: On objections filed by the Pioneer Iron Company and others. From a decree setting aside the taxes, petitioner appeals.
    Affirmed.

      Clark & Pearl, for petitioner.

      George Hayden, for defendants Pioneer Iron Co., Iron Cliffs Co., and Arctic Iron Co.

      8. W. Shaull (A. B. Hldredge, of counsel), for defend, ants Negaunee Iron Co., Edward N. Breitung, and Frank Ross.

      Charles B. Brown & Son, for defendants Pendill.
   Long, J.

On the presentation of the petition of the auditor general for the sale of lands delinquent for taxes for 1896 to the circuit court, in chancery, of Marquette county, certain of the taxpayers of that county filed objections to the sale of the lands, alleging:

“First. In assessing personal property, the assessor put upon the roll only stocks of goods or stocks in trade of business concerns, houses built on leased lots, and called ‘personal property,’ and the stock of the First National Bank, and willfully omitted all other personal property in the city.
“Second. Large quantities of iron ore at the several mines in the city (naming them), worth at least $200,000, and being personal property, were not valued, and were willfully omitted from the roll.
‘ Third. All the horses, cows, and other personal property of this chai’acter, except the animals in livery stables, constituting an entire class of personal property, and of great value, were willfully omitted from the roll.
‘Fourth. In this prosperous city, containing a population of 6,000, were great numbers of individual citizens having each large amounts of personal property owned individually, but, with the exception of two of the wealthy xnen, Samuel Mitchell and Alexander Maitland, these citizens, having large amounts of individual personal property liable to assessment, were willfully omitted fx’om the roll; that, in the case of Mitchell and Maitland, they were put upon the roll for $300 and $200, respectively, amounts insignificant and puerile compared with their actual property, but the board of review willfully struck out even these values, and left the roll bare of this great class of personal property; that the assessor knew of all the personal property thus omitted, hut willfulljq designedly, and fraudulently omitted it; that the board of review knew of the willful, designed, and fraudulent omissions of the assessor, but not only concurred therein, but went further, and struck from the roll the names of the only two citizens of this large city who had been put upon the roll for individual personal property, all of which they did with full knowledge, willfully, designedly, and fraudulently; that these acts of the assessor and board of x’eview were for the purpose of making objectors pay more than their just burden of taxes, and to relieve individual citizens of Negaunee of their just burdens.
“Fifth. The stocks of goods, hoxxses on leased lots, and capital of the First National Bank, actually put upon the roll, were by both the assessor and board of review knowingly, willfully, and fraudulently, and for the same purpose above stated, grossly undervalued; the First Natioixal Bank, with a capital and surplus of $70,000, beiixg put upon the roll for only $25,000.
‘Sixth. The assessor willfully and deliberately established a classification between corporations owning wild, undeveloped lands in the city of Negaunee, popularly known in that city as ‘fee-owning corporations,’ on the one hand, and residents of Negaunee, on the other, and willfully and fraudulently, with intent to make the former class pay more than their just burden, and to relieve the latter class, grossly overvalued the lands of the objectors, who were of the former class, and grossly undervalued the resident real estate in the city; that the board of review, with like knowledge and intent, willfully and fraudulently, and knowing the conduct of the assessor, concur-i’ed therein, and did the same.
“Seventh. The assessor also established a different kind of classification, to wit, between the property of objectors, owning the said wild lands, on the one hand, and properties in the city of Negaunee known as ‘ working mines,’ by which classification the assessor sought to be more lenient to the working mines, which employed men, and were a benefit to the city, than to the wild lands, which were not worked by their owners, .and were of no benefit to the city. He also classified the owners of these properties, respectively, actuated by a dislike of the corporation fee owners (the objectors), by which he sought to make the lands of objectors pay more than their just and fair share of tax, and to punish them, and, on the other hand, to encourage the working-mine i owners to spend money in the city, and to let their property off easy, and, in accordance with these classifications and these designs, knowingly, willfully, and fraudulently grossly overvalued the land of objectors, and grossly undervalued the working-mine properties.
“Eighth. The board of review, knowing the classifications made by the assessor, and his design therein, and his acts in accordance therewith, as so stated, knowingly, willfully, and fraudulently concurred therein, and did the same.
‘ ‘ Ninth. The effect of all these several acts was to put values upon the property of the objectors many times greater than its actual value, and on all the other property much less than its actual value, and by these acts, and by the omissions of property altogether, to create a grossly unequal valuation of the property of objectors, as compared with all the other property in the city of Negaunee, and to make the assessment roll void.”

Some other objections were also made as to other matters, which the circuit court examined and passed upon. The matter was heard in open court, and at the conclusion of the testimony the court filed the following written opinión:

“Under the evidence in this case, I have reached the conclusion that no part of the tax assessed can be sustained, as to any of the parties filing objections. I have reached this conclusion with a great deal of reluctance, and with the case of Pioneer Iron Co. v. City of Negaunee [116 Mich. 430 (74 N. W. 700)] in mind. I do not in any way modify or change my holding in that case as to the law or the testimony adduced in that case, nor as to the law or facts found by me in that case. But, to my mind, the testimony in this case is much different than the testimony in that. It is much more far-reaching in its effects, as to the good faith of the assessing officer and the board of review in 1896. In fact, upon the argument in this case it may be said, from the considerations urged upon the court for the auditor general, that the only legitimate conclusion to be reached from those arguments is that fraud is conceded here on the part of these assessing officers, — if not fraud in fact, at least that it amounts to fraud in law.
“I shall spend no time in discussing the question as to whether any portion of the property of the objecting parties here has been overvalued by the assessor or assessing officers; and when I say ‘ assessing officers ’ I mean the board of review. It is very evident from the testimony in this case that the board and the assessor sought at least to transfer the assessment upon the property in the city of Negaunee from the resident portion thereof to the property of the companies, known as the ‘ outlying lands. ’ Whether in doing this they assessed these properties (that is, the outlying lands) too high, is not a matter of any importance now to the court, because I am thoroughly satisfied from the evidence, and can reach no other conclusion, that, if they did not assess this property too high, they undervalued and omitted from the roll large amounts of both real and personal property belonging to residents of the city of Negaunee. The result was an unequal burden. I have found that there was omitted from the roll a considerable amount of real property. As an illustration, take the seven forties in section 9, assessed at only $300 apiece, while the surrounding properties vary from $1,000 to $4,000 each in assessment. The only excuse that can be found for this is to say that the surface value only (that is, the surface only) was valued or assessed by the assessor; and they have left off then, and omitted from the assessment, the mineral value of those seven forties,— for the evidence is undisputed that these properties thus omitted (the forties) were worth as much as, if not more than, the adjoining forties. Now, it was the duty of the assessor to have assessed those forties, and to have assessed the entire.of them. The tax should be upon the land, and it included the whole estate, whether surface or mineral interest. Fletcher v. Township of Alcona, 72 Mich. 18 (40 N. W. 36). So here was a large amount of property, amounting to at least $25,000, that was entirely omitted,- — of real estate, — and not assessed. You go a little further, and look at the mining properties that were in actual operation there, and in that you may take the Nagaunee mine, and the other mines of about equal value, to wit, the Queen group, and the Cambria and the Lillie; and the testimony is undisputed that those mines were worth at least $250,000 apiece, while they were assessed for about one-third; one of them assessed at $98,000, and I do not recollect the exact figures of the others, but the record will show,- — -at about one-third. There was the omission, then, of from $400,000 to $500,000 of real estate, by undervaluation.
“Then, coming to the question of the personal property entirely omitted from the roll, you have the personal property of the mining companies, including the stock piles,— property that was worth, we will say, at least $600,000 and upwards, — that was entirely omitted. Now, this cannot be overlooked, — the omission of such large quantities of personal property that is visible. If it were necessary for me to say anything about it, I would say that there is much more force in saying that the real estate of the objecting parties here may not have been overvalued than there is reason for saying that there is any excuse for this omission. There may be in the judgment of honest men, of equal intelligence, a great deal of conflict as to the value of property in a mining district. The ore is hidden away in the ground. Men may differ in their judgment with reference to it.' But when you come to large quantities of pine timber, or lumber, or sawlogs, or ore piles, that are visible to the naked eye of the assessing officer, it is unlawful and unpardonable for them to be omitted from the assessment roll. Then take the stocks of goods in that city. The testimony of the assessor himself shows 'that his own stock of goods, or the stock in which he was interested, was valued at about one-quarter of its cash value, as stated by him here as a witness; and his testimony is that that rule prevailed generally through the assessing district. The same rule will apply, perhaps in a different ratio, as to the real estate of the residents of the city. His own home, which he says was worth $1,800, was assessed by him at $600, — just one-third the amount,— and his testimony is that that rule prevailed generally as to the residence property; and we have had other illustrations of it by other testimony in the case. We have had in evidence 76 photographs of different pieces of property, consisting of residence and business property, with the testimony of witnesses as to their value. Now, if that were all, we would not bandy words here because an assessing officer had'assessed property lower than somebody else said was correct, for the reason that an assessing officer might do that in the exercise of the best judgment he could bring to it; but when you have the assessing officer himself confessing that as to his own property, and all this property, that was about the ratio, it presents a very different case. It is very remarkable, too, that the personal property of citizens is left off, — men like Samuel Mitchell and Mr. Maitland, known to be wealthy. And especially in the case of Mr. Mitchell. It appears by his own testimony that he had at least $50,000 worth of personal property assessable in that city at that time. It is entirely left off, showing an omission. Then the difficulty that has struck the court more forcibly than anything else was the leaving off of certain classes of property entirely. An inspection of the entire roll shows there is not an assessment of personal property upon it, outside of certain stocks of goods, and some houses,' assessed as personal property, upon leased lands. In other words, no furniture, vehicles, horses, cattle, watches, jewelry, musical instruments, or anything of that kind. And one of the objections raised this point, — that there was entirely omitted this class of property. It is no answer to say that these classes have>always been omitted.
“All through the discussion of this case, and examination of the testimony, there has been a struggle on the part of the court to try and maintain the taxation, — that these objecting parties should not escape some taxation. The court has tried to figure out a basis upon which it could say that these objecting parties should pay a fractional portion of their tax, at least. But the testimony showing that certain classes of property was entirely omitted, the value and quantity of which does not appear, has rendered this impossible, unless the court is simply to guess at it. In other words, the assessing officers have so thrown this roll out of joint, and have so shuffled the assessments of the property in that city, leaving off large quantities of personal property entirely, that I find it impossible to do anything better than to guess at it. And I do not think it is the duty of the court to attempt to make a new assessment roll. In all the cases where our courts have apportioned the tax, it has appeared that some distinct portion of the property has been omitted, which did not affect the remainder of the roll. The difficulty here was, it seems to me, from the evidence in the case, that they assessed the' outlying properties at least at their cash value, and took off from other properties the amount of tax they placed upon these. It is remarkable, if you will compare the roll of 1896 with the roll of 1895, that the assessed valuation is almost the same; and y.et you find in all these outlying lands property raised from $300 to $10,000, or $8,000, $4,000, $3,000. And yet the aggregate of the valuation is about the same as the year before. So, at least, there was an unequal burden placed upon these properties, and upon all of the objecting parties here. This amounts, in my judgment, to fraud, — fraud in the law, at least. That this property of the objecting parties had been assessed in prior years too low may be true; and had these assessing officers'simply gone on, and raised these valuations to a sum that would have been reasonable, without cutting down and leaving off large amounts of other property, the tax might have been sustained.
“There are numerous other questions in the case that it doés not become necessary for the court to speak about, although I should hold, and shall be obliged to hold until the Supreme Court sets me right, — and I hope the assessing officers will govern themselves accordingly, if they think that the law is as announced by the court, at least, —that properties that are assessed which are crossed by railroads should not be assessed as one parcel, without any reference to the railroad. The railroads and other roads are exempt, of course; but that the railroad company crossing a forty acres is the owner or occupant of that part of that forty cannot be disputed, and the assessment should be made with reference to it. There should be excepted from these assessments the rights of way of the railroad companies. Whether, in such case, where there is a mineral reservation, the remainder of the forty or eighty may be assessed as one parcel, with thakexception, is a question that I am not clear about. It probably would be safer to assess that portion of the forty lying east or west or north or south of the railroad, as the case may be, separately, treating them as separate parcels of land; there being another owner or occupant coming in between. But, at all events, they should except the right of way of the railroad company. This seems to be recognized, and you will find a collection of authorities in 25 Am. & Eng. Enc. Law, 222, and following pages. This is the doctrine: That an assessment as one tract, of two adjoining parcels of different occupants, is void. Now, 'that the railroad company is an occupant of this land there can be no question, and therefore they should not be assessed as one parcel. Also, on page 651, Id., there are some authorities upon that same question. And, turning to this tax compilation of the general tax law sent out by the auditor general, this seems to recognize the same rule, for you find this rule laid down: ‘ If there is exempt property within the area described, — for instance, if a railroad crosses the land, or a school-house site is located thereon, —the exception must be distinctly designated and the acreage assessed correctly stated.’ It is certainly safer to treat them as different parcels. So I should hold, were it necessary to hold, that any portion of this property crossed by the right of way of any of the railroad companies shown by the evidence to traverse these lands cannot he taxed as one parcel, and should be marked off for that reason alone.
“In the case of the objections filed by Flavia M. T. Pendill and others, there are numerous other questions as-to the assessment of property in blocks and lots. Am I correct in saying that all these lots were assessed as one-parcel?
“Judge Brotan: Yes; they are all assessed together.
“Mr. Bell: Yes; they were assessed together in every instance.
“The Court: The evidence shows that in some of these blocks there are other owners coming right in with property, taking two or three lots, entirely disconnecting the remainder of the block, — as to the Brewing Company, for instance, coming right in. Take the block from lot 88 to-198, we will say. There is the Peninsula Brewing Company, with its brewery and house and barn, entirely disconnecting the remainder of the property, and yet it is assessed together. Dropping down to the lower end, to lot 198 and adjoining lots, the same thing is true. The same is true as to numerous other instances in this block. There are different occupants. I think it is not true as to any other ownerships, but as to occupants there are many different ones.
“Now, take the other objections filed by the Pendills. I hoped for a time to be able to maintain the taxes, but I find I cannot do so. The S. W. i of the S. W. ^ of section 6 and the N. W. jc of the N. W. ¶ of section 7 are assessed together, which is an anomaly. I never saw before, in all my experience in the State of Michigan, an assessment roll where unoccupied or nonresident properties upon different sections were assessed together. But that is not the thing that troubles the court most, because upon that portion of property there is about an equal acreage (happens to be) in these two forties, which are fractional,— 37.28 acres each. And, if the only trouble was that, we might say we will separate them, — separate the tax. But on that portion of section 6 is the railroad question. Now, if the railroad renders the assessment of section 6 void, how can I apportion, as between 6 and 7 ? For the railroad must come out of section 6 anyway, and how much more ? I do not know how much more was allowed for it, whether anything or not, or whether section 7 is of the same value as that north of the railroad on 6, or south of the railroad on 6. Ordinarily I would say that pieces of land that may be assessed together the court would presume were of equal value; but I do not think that rule would be a safe one to apply where there was a railroad upon one of them, which renders the assessment void upon that, and therefore I cannot say what part should go on section 7. I am speaking of this without reference to this question of fraud. The question of fraud disposes of the whole case, but I mention these others to show the mind of the court upon them.
“So I end as I began, recognizing the doctrine laid down by me in the case of Pioneer Iron Co. v. City of Negaunee as stating the law correctly. I think the evidence in this case shows an intentional omission of personal property, an intentional undervaluation of a large part of the personal and real estate, and an intentional omission of real estate; not accidental, not inadvertency, as the Supreme Court use the word in one case, but known and intentional, — the object and purpose being to throw a larger taxation upon this class of outlying property, and to aid and benefit the working properties and the residence properties; thus discriminating, and not placing the assessment upon the question of valuations at all, but attempting to carry out a scheme that has, in. my judgment, rendered this whole roll void as to those filing objections. I am very sorry to wipe out these taxes. There has not been a question before me, perhaps, in years, that I have struggled more With than with this question, to try to maintain some portion of this tax; but I have reached the conclusion that, when the assessing officers of a city will be so reckless and will so disregard their duty as they have in this instance, a court of equity cannot be expected to do impossibilities, and make an assessment roll out of such a jumble as they have made in this assessment. ( These .taxes will be marked off. There will be no costs awarded in the matter.”

A decree was filed in accordance with the opinion, from which the auditor general appeals.

It is contended by'counsel for the auditor general that the court below was in error in setting aside the whole roll, and that it will be not only disastrous to the public revenues, but a dangerous precedent. It is evident that the learned circuit judge who heard and decided the case was as much distressed over the result reached as counsel, and yet that court found no way to avoid the difficulties.

Counsel, however, contend that it was the duty of the objectors to have furnished the court below with the data from which it could have ascertained the amount which the objectors should equitably pay. We know of no such rule, even were it possible to furnish such data in the present case. It is true that where a landowner invokes the aid of a court of equity to restrain the collection of a tax which, on his own showing, is void only in part and is valid in part, he must point out that which is invalid, and pay that which is valid. Conioay v. Waverly Township Board, 15 Mich. 259. If such burdens were to be cast upon those objecting to such invalid and fraudulent tax rolls, the requirements would necessarilj' involve the making of entirely new tax rolls by them. The main difficulty in the present case is that no one, except the assessing officer and board of review, has the power to ascertain the data from which such tax rolls can be made; and the court below finds that they intentionally omitted personal property, and intentionally undervalued a large part of the personal and real property, and intentionally omitted certain real estate, “the object and purpose being to throw a larger taxation upon this class of outlying property, and to aid and benefit the working properties and the residence properties; thus discriminating, and not placing the assessment upon the question of valuations at all, but attempting to carry out a scheme.” We think the proofs fully sustain tKe finding of the circuit judge, and we see no way in which a different result could be reached.

It is confessed that it would be unjust and inequitable to compel the objectors to pay the^amounts which they are respectively assessed. How much shall they pay ? Counsel for the auditor general are not able to compute the amount'; nor do they give the court any data from which it could be ascertained, except to say that “the objectors were only entitled to such reduction as they have shown was unjust and inequitable.” We might say that they were each charged in this roll 50 per cent, too much, or 75 per cent, too much; but, as said by the court below, it would be a mere guess. We think it is better that this county suffer the penalty for such wrong-doing of its taxing officers, than that the court should, by a mere guess, attempt to grant the relief to which the parties are entitled. The case is not like the cases of Walsh v. King, 74 Mich. 350 (41 N. W. 1080), and Merrill v. Auditor General, 24 Mich. 170, or the other cases cited by the learned counsel for the auditor general. In most of the cases cited, the court found there was an honest mistake by the assess, ing officer, and in other cases it was said that, even where there was a fraudulent assessment, the court could grant relief by a reduction of the excess of tax; but in each case cited where that was done the court had some basis by which the proper reduction could be made. In the present case none is found, and it is apparent that none can be found without making new rolls. Walsh v. King, supra; Solomon v. Township of Oscoda, 77 Mich. 365 (43 N. W. 990); Auditor General v. Prescott, 94 Mich. 190 (53 N. W. 1058).

The decree below must be affirmed.

Montgomery, C. J., Hooker and Moore, JJ., concurred. Grant, J., did not sit.


source: Caselaw Access Project

author: Grant, J.

license: Public Domain

text:
    MORSE v. VELZY.
    1. Fraudulent Conveyances — Knowledge op Grantee — Findings op Fact — Judgment.
    Where, in replevin against an officer for property seized on execution against a third person, and claimed by plaintiff to have been turned over to her by the execution debtor in satisfaction of a note, the court found as a fact that plaintiff had no knowledge that the vendor owed any debts aside from the note, a judgment for defendant, on the theory that plaintiff took the property with intent to defraud the vendor’s creditors, was unwarranted.
    2. Same — Change op Possession — Evidence.
    Where, in replevin against an officer for property seized on execution against a third person, and claimed by plaintiff to have been turned over to her by the execution debtor in satisfaction of a note, the evidence showed that plaintiff, at the maturity of the note, was given a bill of sale of the projjerty; that át that time, or soon afterwards, she purchased from the debtor the farm on which the property was located, and placed a third person in charge for her; and that, after several months, she removed the property to the farm on which she lived, where the debtor was employed by her, and where he remained up to the time of the levy, — a finding that there was no change of possession which would avail against other creditors was erroneous.

      Error to Kent; Adsit, J.
    Submitted February 7, 1900.
    Decided March 27, 1900.
    Replevin by Sarah J. Morse against Milton Yelzy. From a judgment for defendant, plaintiff brings error.
    Reversed.

      Taggart, Ganson & Taggart, for appellant.

      G. H. Gleason (Arthur Lowell, of counsel), for appellee.
   Grant, J.

Defendant is a deputy sheriff. Under an execution issued upon a judgment in justice’s court for $73.51 against one John Brown, he levied upon two mares and a colt, which are the subject of this controversy. Plaintiff, claiming to be the owner, replevied them. Plaintiff purchased the property from Brown, and had it in her possession when the levy was made. The judgment creditors, through the defendant, attacked the purchase as fraudulent and made with the intent to defraud the creditors of Brown. The court made an elaborate finding, covering eight pages of the record, in which is set forth much of the testimony and the claims of the parties. Plaintiff objected and excepted to the finding of the facts which were material and essential for the defendant to establish. She also proposed amendments of facts directly contrary to those found, to the refusal to find which she duly excepted. The main contention is that there was no testimony upon which to base the finding that the sale was fraudulent.

The undisputed facts are that plaintiff owned a farm, on which she lived with her husband. Brown owned a farm of 40 acres near by. He had ceased to occupy it as his homestead.. Upon it were these mares and other personal property, worth together about $250. In August, 1896, she loaned Brown $250, and took his promissory note therefor, due in August, 1897. When the note became due, Brown was unable to pay. This property was then, by mutual agreement, turned over to plaintiff in payment of the debt, and the note surrendered. Plaintiff about the same time purchased Brown’s farm, but whether at the time or afterwards is not shown by the record. One Tibbitts took possession of the Brown farm under plaintiff, and the mares remained upon that farm until the following spring. They were then removed to plaintiff’s farm, and there remained until levied upon by defendant, January 3, 1899. Brown meanwhile was employed by plaintiff to work on her farm, — at first by the month; and afterwards, being unable to work constantly, he was paid for what he did. Aside from the parol evidence, a bill of sale, absolute in form, was executed by Brown and delivered to plaintiff at the same time that the note was surrendered.

The' court declined to find whether plaintiff loaned Browm $250, took his promissory note therefor, and surrendered it to him in consideration for the bill of sale and the conveyance of the property therein enumerated. These were essential facts, and the court should have passed upon them. If they were as claimed by the plaintiff, and if she had no knowledge that Brown was indebted to others than herself, she certainly could not be convicted of any fraudulent intent. Even if she had known that Brown owed other debts, this would not have rendered her purchase void, though the result would have been to hinder and delay other creditors. The court found that she “had no knowledge that said Brown was financially involved, or owed any debts aside from her own.” By what process of reasoning can she be held guilty of an intent to assist Brown to defraud his creditors, when she did not know that he had any ? The court could not have found that no money was loaned, or note given and surrendered, without finding that plaintiff, Brown, and a disinterested witness, Mrs. Martindale, were guilty of perjury. Plaintiff and Brown both positively swear to the transaction, and Mrs. Martindale testified that she was present, and saw and read the note, when plaintiff surrendered it to Brown. I find no testimony in the record to impeach the integrity of the transaction, or to justify the conclusion that these three witnesses were guilty of perjury.

The employment of Brown by the plaintiff was no justification for the finding that there had been no change of possession or ownership. The mares were just as much in her possession as though they had been purchased from a person other than Brown.

Judgment reversed, and new trial ordered.

The other Justices concurred.


author: Moore, J.

text:
    CITY OF MUSKEGON v. BOYCE.
    Taxation — Omission op Property prom Poll — Fraud.
    The mere fact that some of the property upon an assessment roll was undervalued, or that taxable property was omitted from the roll, is insufficient to invalidate an assessment, but to have that effect it must also he made to appear that such action on the part of the assessing officers was intentional, and that the person complaining is thereby compelled to pay more than his just proportion of taxes. Upon a review of the evidence in this case, held, that neither of the latter facts was conclusively shown.
    Error to Muskegon; Bussell, J.
    Submitted January 5, 1900.
    Decided March 27, 1900.

      Assumpsit by the city of Muskegon against George Boyce to recover a tax on personal property. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Bunker & Carpenter, for appellant. '

      C. W. Sessions, for appellee.
   Moore, J.

The defendant was assessed on the assessment roll of 1898, for personal estate, $15,000. He did not pay the tax levied on this personal property. The city sued him for it, and obtained a judgment against him. From that judgment he has brought the case here by appeal.

Mr. Murray was the city assessor. He was confined to his house with a broken leg part of the time when he ought to have been making his assessment. He employed Mr. Gray to' assist in making the assessment. Mr. Gray had a talk with defendant, who claimed he had no property liable to assessment. Mr. Gray and Mr. Murray discussed the propriety of assessing Mr. Boyce, but finally did not do so. When the board of review met, it assessed Mr. Boyce $15,000 on. his personal estate. He was notified, appeared before the board, and protested against its action, not because he did not have the property, but, to quote his own language: “I have no personal property to be taxed, except mortgages, and' they are not taxed here, — at least, there are none in Muskegon paying taxes on them; and for that reason I beg of you to take my name from the roll.” It is admitted by the defendant he is not assessed too much, but it is claimed that the assessor did not mean to .assess any person except defendant for money loaned, or for credits in any other form, and that a small portion of the records of the office of the register of deeds shows there were mortgages owned by residents of the city amounting to more than $100,000. It is also claimed the assessor discriminated in favor of local manufacturing concerns, assessing 12 of them upon personal property but $149,000, when their reports for the same year show they had more than $1,000,000 in personal property. " It is also claimed the banks had more than $1,000,000 on deposit; that the assessor willfully omitted to place property on the assessment roll that ought to have been assessed, and his failure to do so was a fraud upon defendant, and invalidated the roll, — citing Walsh v. King, 74 Mich. 350 (41 N. W. 1080); Solomon v. Township of Oscoda, 77 Mich. 365 (43 N. W. 990); Auditor General v. Jenkinson, 90 Mich. 523 (51 N. W. 643); Auditor General v. Prescott, 94 Mich. 190 (53 N. W. 1058).

The circuit judge charged the jury in detail, telling them fraud would vitiate the roll. Among other things, he charged them:

‘ ‘As I have already stated, gentlemen, the theory of the law is that each class of property shall bear its just proportion of the burdens. Of course, that is only in theory, because we all know that it would be absolutely impossible, in a city such as this, for an assessing officer to make an assessment that would be in all respects exactly equal. Therefore the law provides that if this assessing officer and the board of review act honestly and use their best judgment, trying to act fairly, so that each piece of property shall bear its just proportion of the public burden, if they make a mistake it is excusable; but the law will not tolerate the fraudulent acts of these parties, and if you find that Mr. Murray, while he was acting as assessor, neglected and refused to assess any class of property, or any property, which he knew existed in this city, that was subject to taxation, whether it be mortgages (that is, credits on mortgages), or whether it be the credits that were deposited in banks, or whether it be any other class of property, if he did not intend to do his duty, and by that means intended to discriminate in favor of one party and against another party, why, this assessment is void, unless that trouble was avoided by the board of review. Or if you find that the board of review in passing upon that assessment roll, of which he was one, acted fraudulently, — intended to discriminate and did discriminate against a certain class of property, or neglected and refused to add property which they knew existed, that should be taxed in the city, to the assessment roll, — why, the plaintiff here cannot recover. If they acted fairly and honestly, using their best judgment, — tried to do their duty,- — why, that ends this case. Now, gentlemen, that is really all there is to the case.”

The jury found a verdict in favor of the city. It is now said the court ought to have directed a verdict in favor of defendant. Many questions are discussed by counsel to which we do not think it necessary to refer.

Mr. Murray and Mr. Gray, who made the assessments, and both of whom were members of the board of review, were called as witnesses. No other members of the board of review were called. It is insisted that the testimony of these men shows they did not intend to assess mortgages or credits. Answers made by them to one or two questions, standing alone, give color to that assertion; but the testimony, taken as an entirety, shows a different condition. They state explicitly that they did not, through design or intention, leave off from the roll any class of property that was assessable, and that it was their design ánd intention to assess all the taxable property in the city. They also testified they did not intend to discriminate in favor of any class of property, or for or against any person or persons. The record discloses that the board of review added many new names to the assessment roll after it came to them, and increased the amount of the assessments about $240,000. There were upwards of 530 assessments of personal property. More than 160 assessments were made against owners of shares of bank stock. It appears from the record that nearly all of the 12 manufacturing concerns before mentioned appeared before the board of review, and protested against their assessments because they were too high. As to one of these concerns, which counsel say had personal assets, as shown by its annual statement, of upwards of a quarter of a million of dollars, it was made to appear that the assets consisted almost wholly of a patent right upon a fluid to extinguish fires, which was of little value. In another concern, a considerable portion of the assets consisted of patterns for machinery that were out of date. In other cases it was claimed that large portions of the assets were shown to be in other States, subject to assessment there. In reference to the mortgages, it was not shown what proportion of them were unpaid. It does not appear in the record who the mortgagees were, except in two instances, and those were mortgages owned by defendant. Nor is it shown that such of them as ought to be assessed were not included in the assessments made against personal estate which did appear on the roll. Defendant called as witnesses the ' cashiers of various banks, who testified to the number of depositors and the extent of the deposits. There were upwards of 4,000 of the depositors, some of whom lived outside of the city. Some of these deposits were due to the county, some to the schools. A large part of them were due to commercial and manufacturing concerns against whom a personal-estate assessment was made. Many of them were represented by ‘certificates of deposit which were negotiable, and passed from person to person by indorsement. It is not shown who the individuals were who made these deposits, except that it is shown that, in the spring of 1898, certificates of deposit were issued by one of the banks to the defendant, amounting to fifteen or eighteen thousand dollars, which certificates were transferred by him before they were presented for payment. It is not shown that the assessor or the board of review had any knowledge of bank deposits which ought to have been assessed which were not assessed.' The record discloses that there were about 7,000 pieces of property, valued at between four and five millions of dollars, upon the assessment roll. It does not disclose any specific property which ought to have appeared upon the roll that was designedly left off by the board of review. The only members of the board of review who were called as witnesses testified that, during the entire session of the board, there was no statement or intimation by any member of the board of an intention to discriminate against one taxpayer and favor another.

“There was no design expressed on the part of the board of review, or any member thereof, to discriminate against any person in the assessment of property in this city. There was nothing done on the board of review, there was nothing said by any member of that board, that led me to believe or think that there was any intention to discriminate against George Boyce.”

It is quite possible that.the value placed on the property by the assessing officers was low. It is also probable that property which ought to have found its way to the assessment roll was not assessed. But that of itself is not - sufficient to allow a taxpayer to escape from taxation. It must be made to appear that because of these things he is made to pay more than his proportion of taxes. Peninsula Iron & Lumber Co. v. Township of Crystal Falls, 60 Mich. 510 (27 N. W. 666); Williams v. Mears, 61 Mich. 86 (27 N. W. 863 ). It is not at all clear that defendant ought not to have been assessed more than he was, or that he was not assessed' as low proportionately as any one else. The testimony tends to show that he was reputed to be worth from $150,000 to $200,000. His real estate assessed was but $3,760. He made a protest upon the board of review in relation to his real-estate' assessment, claiming it should be reduced to $2,500. It is somewhat significant that he was not called as a witness. It is not made to appear that, by reason of the assessment, he is made to pay more than his proportion of' taxes. Giving the testimony the most favorable construction possible in favor of defendant, it, at most, only raised a question to be submitted to the jury. This was done by the trial judge, and the jury found against the contention of the defendant. The case is very different from those cited by defendant. In two of the cases a very large proportion of the property was, by agreement of the officers, left off the assessment roll. In two of them the property was assessed at only a tenth of its value, and this was done designedly. The case is also unlike the case of Auditor General v. Pioneer Iron Co., ante, 521 (82 N. W. 260). In the last case it was made to appear that not only the assessing officer, but the board of review as well, designedly discriminated against certain of the property owners, and in favor of others, and that large values of property were by design left off the roll. The circuit judge, acting as chancellor, in passing upon the testimony found these facts. In the case before us the jury found that such facts did not exist. A court would not be warranted in holding a tax assessment to be invalid because the assessing officer or the board of review had acted fraudulently, unless that fact was clearly established by the evidence. Perkins v. Nugent, 45 Mich. 156 (7 N. W. 757); Drennan v. Beierlein, 49 Mich. 272 (13 N. W. 587); Pioneer Iron Co. v. City of Negaunee, 116 Mich. 430 (74 N. W. 700).

The judgment is affirmed.

The other Justices concurred.


text:
    SCHOLTZ v. ELY.
    1. Drains — Assessment Against Townships — Review.
    2 Comp. Laws 1897, § 4858, which, authorizes the probate court, on the appeal of a township considering itself aggrieved by an assessment for a drain, to appoint a board of disinterested freeholders, residing in the county outside of all the townships traversed by the drain, to review the assessment, while containing no express provision for reviewing the assessments against the non-appealing townships, contemplates that all such assessments shall be reviewed, in like manner as individual assessments are reviewed by the township board; and• therefore, where the assessment of the appealing township is reduced, the assessment against one or more of the remaining townships must be correspondingly increased.
    2. Same — Notice.
    The fact that the statute does not provide for notice to the non-appealing townships is not a fatal defect in the law, as it is contemplated that the drain commissioner, to whom notice is required to be given, will look after their interests, and notify them -if necessary.
    Error to Gratiot; Daboll, J.
    Submitted February 8, 1900.
    Decided March 27, 1900.

      Certiorari by Charles A. Scholtz, drain commissioner of Gratiot county, to review the action of Townsend A. Ely, Hiram Haring, and Frank E. Durfee, acting as a board of review in drain proceedings. From a judgment for respondents, petitioner brings error.
    Reversed.
    This case is brought to this court by writ of error to review the judgment of the circuit court in sustaining the action of a board of review in reducing the assessment of one of the townships interested. Plaintiff is county drain commissioner, and laid out the drain through the townships of Lafayette, Emerson, and Wheeler. In apportioning the cost, he put 66 per cent, on Lafayette, 15 on Emerson, and 19 on Wheeler. In Lafayette, he put 34 per cent, on the township at large, and the balance he apportioned among individuals owning lands benefited. The township of Lafayette, considering itself aggrieved, appealed to a statutory board of review. This board is provided for in section 4353, 2 Comp. Laws 1897. The township board desiring to appeal, by appropriate resolution, authorizes the supervisor to make application to the probate court. The court is authorized* to appoint three competent and disinterested freeholders, residing in the county outside of all the townships traversed by the drain, as a board of review. The statute then provides: “ The persons so appointed as aforesaid shall be vested with the same powers and shall perform the same duties in regard to the assessment against said township in the same time and manner in all respects as by this act provided for township boards in reviewing individual assessments.” When thp persons are appointed by the court, the appealing township is required to notify them of such appointment, and of the time and place for them to meet, and to give like notice to the drain commissioner three days before meeting. The board met, and made return that the “apportionment of per cent, for benefits against the township of Lafayette, as made by said drain commissioner, is unjust and excessive, and that 14 per cent, should be deducted therefr.om, and that said apportionment should stand as 20 per cent., instead of 34 per cent.”

      Searl & Kress and J. Lee Potts, for appellant.

      George P. Stone and John T. Mathews, for appellees.
   Grant, J.

(after stating the facts). If we read the briefs of counsel for both sides correctly, they seem to agree that the return was the one for which the statute provides, because it (the statute) contains no express provision for reviewing the assessments made upon the other townships. We cannot concur in this view. The benefits to be derived by these townships are relative, and it follows that if one is too high one or more of the others are too low. This board of review cannot determine that the assessment for Lafayette township was too high without determining that the others were too low by the same percentage. It is not authorized to review the action of the' drain commissioner in his determination of the entire amount of the assessment, but only to review the apportionment of such amounts among the several townships. The board, therefore, cannot act intelligently without an examination of the entire drain and the benefits to be derived by each township. The statute may be crudely drawn, but it cannot be interpreted to mean that this board of review is called to consider only one township. It is vested with the same powers and the same duties as a township board where an individual appeals to it. Section 4346, 2 Comp. Laws 1897. The township board is given the right to review all assessments; that is, as between individuals. This board is given the same power as between townships. When they reduce one assessment, they must correspondingly raise the other.

The statute does not provide for notice to the townships not appealing. It contemplates that the county drain commissioner will look after their interests, and notify them, if necessary. We do not think the failure to provide for notice to such townships is a fatal defect in the law.

' The judgment of the court below is reversed, and the board of review directed to reconvene, and perform their duties in accordance with this decision.

The other Justices concurred.


author: Hooker, J.

text:
    WASS v. BOARD OF EXAMINERS OF BARBERS.
    Barbers — Board op Examiners — Certificate — Terms of Issuance.
    Act No. 212, Pub. Acts 1899, creating a board of examiners, of barbers, provides (section 6) that an applicant for a certificate shall pay the sum of five dollars, which shall entitle him to examination, and to a certificate if qualified: Provided, the section shall not apply to persons “now engaged in the- . business of a barber in this State,” and who have been “so-engaged’’for two years. Section 7 provides that every person “now engaged in the business of a barber in this State, and who has been so engaged’’for two years, who shall, within 90 days, file with the board a sworn statement, showing his-name, place of business, post-office address, and “the length of time he has actually served as a barber,” shall, on payment of one dollar, receive a certificate. Held, that a barber who had been engaged in business in this State for only 11 months was not entitled to a certificate on payment of one dollar, though he had been engaged as a barber in another State for more than two years, and so stated in his application.

      Mandamus by Fred S. Wass t© compel the board of' examiners of barbers to issue him a certificate. .
    Submitted February 20, 1900.
    Writ denied March 27, 1900..

      Hammond & Hammond, for relator.

      Horace M. Oren, Attorney General, for respondent.
   Hooker, J.

The relator alleges that he is a barber, and had worked at that calling for more than two years immediately preceding his application to the respondent, in Ohio and Michigan, the last 11 months of which period he worked in this State. He applied to the respondent for a certificate as a barber, under Act No. 212 of the Public Acts of 1899, and, being refused a certificate, asks a mandamus to compel its issue. The answer of the respondent shows that the only ground of refusal is that the relator is not entitled to such certificate without paying five dollars to the treasurer of the board, and submitting to examination; not having been engaged in the business of a barber in this State for the period of two years. Belator claims that, having been engaged in the business of a barber for two years, he is entitled to the certificate of the board, whether said business was conducted in Michigan or another of the' United States, and this is the only question that we are called upon to decide. Counsel for the relator, in their brief, say that, “so far as this case is concerned, it is simply a matter of construing the meaning of sections 6 and 7 of the act.” They read as follows:

“ Sec. 6. Each person applying to said board for a certificate shall pay to the treasurer thereof the sum of five dollars, which shall entitle him to examination, and to a certificate if found qualified: Provided, this section shall not apply to barbers now engaged in the business of a barber in this State, and who have been so engaged for the period of two years.
‘ ‘ Sec. 7. Every person now engaged in the business of a barber in this State, and who has been so engaged for the period of two years or more, shall, within ninety days after this act shall take effect, file with the secretary of said board a statement verified by his oath, to be administered by any notary public of the State, showing his name, place of business, post-office address, the length of time he has actually served as a barber, and shall pay to said secretary the sum of one dollar, and receive and shall be entitled to receive from said board a certificate as a barber, and shall pay annually thereafter the sum of fifty cents for a renewal of said certificate.”

The question resolves itself into this, viz.: Whether the words “so engaged” refer to the words “engaged in the business of a barber,” or to the words “engaged in the business of a barber in this State.” We have no doubt that the latter was the meaning intended. It is said that section 7 does not require the application to show that the applicant has been engaged in the business of a barber in this State for two years, but we think the entire act should be construed together; and, whatever the application may be required to show, we are satisfied that it was designed that the applicant should not be entitled to a certificate without examination, and the payment of a fee of $5, unless he should show that fact.

The writ is denied, with costs.

The other Justices concurred.


author: Per Curiam.

text:
    RUSSELL v. CHITTENDEN.
    Tax Deeds — Validity of Decree — Dollar Mark.
    A tax deed is void where the decree on which it is based contains no dollar mark to indicate the amount decreed against the land.
    Error to Gratiot; Daboll, J.
    Submitted February 1, 1900.
    Decided March 27, 1900.
    Trespass by Orr H. Russell against Charles E. Chittenden and others for cutting timber. From a judgment for defendants, plaintiff brings error.
    Reversed.

      John O. Zabel and John T. Mathews, for appellant.

      Searl & Kirby, for appellees.
   Per Curiam.

Plaintiff, the owner of the government title to certain land, brought an action for trespass in cutting timber. The damage to the land is fixed by the finding at $100. Defendants justified under a tax deed.

The purported decree contains no amount, as there is no dollar mark. It is said that this question was not raised in the court below. In this counsel are mistaken. The amended findings explicitly cover the point. The case is ruled by Millard v. Truax, 99 Mich. 157 (58 N. W. 70); McKinnon v. Meston, 104 Mich. 642 (62 N. W. 1014); Case v. Skinner, 121 Mich. 206 (79 N. W. 1093).

Judgment reversed, and judgment entered for the plaintiff in the sum of $100, with costs of both courts.


text:
    VOIGT v. CITY OF DETROIT.
    1. Municipal Corporations — Eminent Domain — Constitutional Law — Assessments Against Property Benefited.
    Section 15 of the general law authorizing cities and villages to take private property for the use or benefit of the public (1 Comp. Laws 1897, § 3406), which provides that, if a city council believe that a portion of the city in the vicinity of a proposed improvement will be benefited thereby, they may determine that the whole or any just proportion of the compensation awarded by the jury shall be assessed upon the owners of the land deemed to be benefited, and that they shall then, by resolution, fix and determine the district benefited, and specify the amount to be assessed upon the owners of the taxable real estate therein, etc., is not unconstitutional, as taking property without due process of law, in that no provision is made for notice to such owners of' a time and place of hearing in relation to the establishment of the assessment district and to the amount „of the total assessment.
    2. Same.
    Nor is the section invalid in that it does not fix any standard for determining the proportion of the award to be assessed upon the district, and does not limit the total assessment to the amount of the benefits, since these things are clearly implied from the further provision that “the amount of the benefit thus ascertained shall be assessed” upon the owners of such taxable real estate “ in proportion, as nearly as may be, to the advantage ” which the several parcels are deemed to acquire by the improvement.
    Appeal from Wayne; Hosmer, J.
    Submitted February 6, 1900.
    Decided March 27, 1900.
    Bill by Edward W. Voigt against the city of Detroit and Thomas M. Lucking, receiver of taxes, to enjoin the collection of a special assessment. From a decree for complainant, defendants appeal.
    Reversed.

      Walker & Spalding {Hoyt Post, of counsel), for complainant.

      C. D. Joslyn, for defendants.
   Moore, J.

Complainant filed a bill to enjoin the collection of a special assessment imposed upon his lands in a special assessment district established by the common council of Detroit, to pay part of the compensation awarded by a jury in proceedings taken to open a street. The case was heard upon demurrer to the bill. From a decree for complainant, defendants appeal.

In 1898 the city of Detroit took proceedings in the recorder’s court to open Second avenue from the boulevard to the ’northerly city limits. The compensation awarded for the land taken in these proceedings was $73,732.68. In January, 1899, the common council by resolution determined that $49,155.12 was a just proportion of the compensation awarded by the jury to be paid by the owners of the property embraced in an assessment district established by the same resolution, and directed the board, of assessors to make assessment accordingly. Of these proceedings Mr. Voigt had no notice. The notice required by section 37, chap. 11, of the city charter, was duly given. An assessment roll in accordance with the resolution of the council was prepared and confirmed. There was assessed against land owned by the complainant in .the assessment district established by the council nearly $10,-000. It is to restrain the enforcement of this tax that the bill is filed.

The statute to be construed reads as follows:

“If the common council, or board of trustees, or board of supervisors believe that a portion of the city, village, or county in the vicinity of the proposed improvement will be benefited by such improvement, they may, by an entry in their-minutes, determine that the whole or any just proportion of the compensation awarded by the jury shall be assessed upon the owners or occupants of real estate deemed tobe thus benefited; and thereupon they shall, by resolution, fix and determine the district or portion of the city [or] village or county benefited, and specify the amount to be assessed upon the owners or occupants of the taxable real estate therein. The amount of the benefit thus ascertained shall be' assessed upon the owners or occupants of such taxable real estate in proportion, as nearly as may, to tbe advantage which such lot, parcel, or subdivision is deemed to acquire by the improvement. The assessment shall be made, and the amount levied and collected, in the same manner, and by the same officers and proceeding, as near as may be, as is provided in the charter of the municipality for assessing, levying, and collecting the expense of a public improvement when a street is graded. ” Section 3406, 1 Comp. Laws 1897.

It is claimed this law is unconstitutional. The law was passed in 1883, and is the one under which the city of Detroit and other cities in the State have been operating, in proceedings of a like character to this, for many years. Counsel say the precise question involved has never before been passed upon. They urge that three things are required to be done after the confirmation of the verdict of the jury declaring the necessity of the improvement and awarding compensation for the property taken

1. The common council must determine or fix the local taxing district.

2. It must determine the amount which shall be spread upon the local taxing district.

3. The board of assessors must make an assessment roll which shall properly apportion the amount determined by the common council among the different parcels of land in the taxing district.

No provision is made for a notice to property owners of a time and place of hearing upon either the question of fixing a taxing district or the question of the amount of the award to be spread thereon. This, it is claimed, leads to taking property without due process of law, and therefore the law is unconstitutional. The statute provides for a hearing in relation to the proportion each piece of property shall bear to the whole cost of the improvement, and the proper notice of this hearing was given. It is claimed by counsel that complainant was entitled to notice of the hearing relating to the establishment of the assessment district, and of the amount of the total assessment, and because the statute does not provide for these notices it is unconstitutional, as taking property without due process of law; citing Thomas v. Gain, 35 Mich. 164; City of Detroit v. Judge of Recorder’s Court, 112 Mich. 588 (71 N. W. 149, 42 L. R. A. 638); Davidson v. City of New Orleans, 96 U. S. 107.

We do not think this position of the counsel can be maintained. The right of the legislature to establish special assessment districts, in which all the taxes necessary to be raised to pay for a local improvement may be assessed, was for a long time questioned, but that right has been so often sustained by the courts that it is no longer open to question. In the case of People v. Mayor, etc., of Brooklyn, 4 N. Y. 419, the following language is used:

“But there never was any just foundation for saying that local taxation must necessarily be limited by, or coextensive with, any previously-established district. It is wrong that a few should be taxed for the benefit of the whole, and it is equally wrong that the whole should be taxed for the benefit of a few. No one town ought to be taxed exclusively for the payment of county expenses, and no county should be taxed for the expenses incurred for the benefit of a single town. The same principle of justice requires that, where taxation for any local object benefits only a portion of a city or town, that portion only should bear the burden. There being no constitutional prohibition, the legislature may create a district for that special purpose, or they may tax a class of lands or persons benefited, to be designated by the public agents appointed for that purpose, without reference to town, county, or district lines. General taxation for such local objects is manifestly unjust. It burdens those who are not benefited, and benefits those who are not burdened. • This injustice has- led to the substitution of street assessments in place of general taxation, and it seems' impossible to deny that in the theory of their apportionment they are far more equitable than general taxation, for the purpose they are designed for.”

In Cooley, Tax’n (2d Ed.), 149, this language occurs:

“When the nature of the case does not conclusively fix it, the power to determine what shall be the taxing district for any particular burden is purely a legislative power, and not to be interfered with or controlled, except as it may be limited or restrained by constitutional provisions. * * * The legislature judges finally and conclusively upon all questions of policy, as it may also upon all questions of fact, which are involved in the determination of a taxing district. And, having the authority to determine what shall be the taxing districts, the legislature must also be left to its own methods of reaching the conclusion. Most cases will be settled by general law; but taxes for extraordinary purposes may require special legislation, or at least may justify it. In such cases it may be proper to enter upon such inquiries into the facts as cannot well be made directly by the legislative body of the State, whose duties are too multitudinous to admit of special investigations on a hearing of evidence or on personal examination by its members. Under such circumstances it may be proper and convenient to refer the whole subject to the local authorities; and this in the case of local works or special improvements, is the course usually adopted. The State does not determine whether a city street shall be improved and' a tax levied therefor, but, by provision in the city charter, or by special legislation, it refers the whole subject to the city common council, under such directions, regulations, and instructions as it may be thought proper or prudent to give or impose. The State does not divide the several counties and towns into school districts, and order the construction of district school-houses, but by general law submits the subject to the people specially concerned. This is the general course, and it has been found to be the satisfactory, and therefore the wise, course. And, if an apportionment is to be made on the basis of benefits to property, the local authorities may be, and usually are, empowered to refer the assessment of benefits to officers or commissioners chosen for the purpose, whose report, when under the provisions of the law it shall become final, will settle the limits of the special taxing district. These, if not the only methods of giving effect to the legislative authority over this subject, are certainly admissible and proper methods.”

Under these authorities, it is very clear that the legislature itself might have established the special assessment district. Had it seen fit to do so, would it be claimed that its right to do so could be questioned as unconstitutional, because no notice was given to the property holders affected thereby that it intended to establish such a district? If the answer to this question should be in the negative, why, when the legislature has delegated to the common council of the city the right to establish the special district, should it be said that the law delegating this power is unconstitutional because notice is not required ? The establishment of the special assessment district, in the one instance by the legislature, and in the other instance by the common council, is the exercise of a legislative power, with which the courts will not ordinarily interfere. In Rogers v. City of St. Paul, 22 Minn. 494, it was held the legislature might submit the question of making a proposed improvement to the decision of the common council, which might avail itself of such sources of information as were accessible to it, like reports of the board of public works, and, while the special benefits which would result from the improvement must'be as great as the expense of making it, the determination of this question by the council, as well as the whole matter of ordering the improvement, was final, unless, perhaps, in case of fraud or mistake. The court used the following language:

“As respects taxation, the authority of the legislature is limited only by the constitution and the nature of taxation itself. Cooley, Tax’n, chap. 2. It was therefore competent for the legislature to give this final and conclusive effect to the determination of the common council; that is to say, it was competent for the legislature to enact that their determination, as a part of the machinery of taxation, should be final and conclusive, as respected the question whether a proposed local improvement was of such a character that the amount of taxes necessary to be raised to pay for the expense of making it would exceed the special benefits which would result from its accomplishment.”

See, also, Northern Indiana R. Co. v. Connelly, 10 Ohio St. 159; Spencer v. Merchant, 100 N. Y. 585 (3 N. E. 682), 125 U. S. 345 (8 Sup. Ct. 921); Cooley, Tax’n (2d Ed.), 606, 611, 661.

When the proceeding has reached that stage where it becomes necessary to decide what proportion of the cost of the proposed improvement shall be assessed to any given description of land, there must be an opportunity given to the owner of the land to be heard upon that question.

There is no claim in the bill that complainant’s property is not benefited by the proposed improvement in excess of the amount assessed, nor is there any claim that he was not allowed to be heard in relation to the amount which should be assessed against his property; thus avoiding the difficulties found in the cases cited by the counsel for complainant. We do not think it can be said that complainant’s property is taken without due process of law. This statute has been construed in Beecher v. City of Detroit, 92 Mich. 268 (52 N. W. 731), and Smith v. City of Detroit, 120 Mich. 572 (79 N. W. 808), and the action taken by the common council thereunder upheld.

It is said:

“The act is bad because it does not fix any rule or standard by which the council are to determine the just proportion of the award of the jury to be assessed upon the district, nor limit the total assessment of the district to the amount of its benefits. The constitutional limit of the amount to be imposed upon the district is the total benefit to the district. The law might, therefore, permit the council, when in their judgment a portion of the city in the vicinity of the improvement is benefited thereby, to determine the amount of such benefit, and to require a just proportion of the compensation awarded by the jury, not exceeding the total benefit, to be assessed upon such local district. This act contains no such limitation. The council are empowered, when they believe that a local district is benefited, to assess what in their judgment is a just proportion of the whole award upon the district, without requiring that proportion to be limited by the amount of benefit.”

We do not think this is a fair construction of the language of the statute. Before the council can create the district at all, they must believe that a portion of the city in the vicinity of the proposed improvement will be benefited by such improvement, and then provide for an apportionment of the compensation awarded by the jury upon the property deemed to be benefited.

“The amount of the benefit thus ascertained shall he assessed upon the owners or occupants of such taxable real estate in proportion, as nearly as may, to the advantage which such lot, parcel, or subdivision is deemed to acquire by the improvement.”

We think this language makes it clear that the amount of tax which may be assessed upon the district, or upon any given parcel of land, cannot exceed the benefit. Provision is then made for the assessment, levy, and collection of the tax.

The demurrer should have been sustained. The decree of the court below is reversed.

The other Justices concurred.


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    HALL v. CALHOUN CIRCUIT JUDGE.
    1. Appeal and Error — Effect of Reversal of Joint Judgment.
    Reversal of a joint judgment on appeal of one of two joint defendants, and order of new trial, render a new trial nécessary before a judgment can be enforced against either defendant.
    3. Same — Review of Discretionary Action.
    Conceding that the circuit judge, after reversal of a joint judgment on appeal of one of two joint defendants, and order of new trial, may entertain plaintiff’s motion to vacate the judgment as to appellant and affirm it as to the other defendant, his action in overruling such a rdotion because, in his'opinion, a verdict rendered against such defendant alone might be very different from that rendered -against defendants jointly, is an exercise of discretion which the Supreme Court is not inclined to review.

      Mandamus by Charles E. Hall to compel Clement Smith, circuit judge of Calhoun county, to vacate a judgment as to one of two defendants, and affirm it as to the other.
    Submitted March 7, 1900.
    Writ denied March 27, 1900.

      Blair, Edwards & Blair, for relator.

      John G. Batterson, for respondent.
   Moore, J.

The relator obtained a judgment against Sarah M. Murdock and Gilson E. Murdock, her husband, in the circuit court for Calhoun county. Mrs. Murdock brought the case here by writ of error. The case is Hall v. Murdock, 119 Mich. 389 (78 N. W. 329). A reference to it will aid in understanding this motion. February 21, 1899, the opinion of this court was handed down, in which it was stated, “The judgment is reversed, and a new trial ordered.” In the following December the plaintiff made a motion in the circuit court to vacate the judgment as to Sarah M. Murdock, and affirm it as to Gilson E. Murdock. The court refused to do this. It is to compel him to do so that this application is made.

In his answer the circuit judge returns that on the trial of the case it was the theory of the relator, in two counts of the declaration, that Mr. Murdock was the agent of his wife, and was guilty of negligence for which the wife should be liable; that two counts of the declaration are based upon the theory of the joint ownership and joint maintenance of the elevator which caused the injury, by the two defendants; and that a general verdict was rendered jointly against the two defendants, and a joint judgment was rendered thereupon. In his petition the relator refers to the records of the case, and makes them a part of his petition, 'and claims that the record shows that he could have recovered only under a count where the action was severable as well as joint; that, as he could have sued one or both or either of defendants, he is now entitled, as a matter of right, to have his motion granted. In support of this contention he cites several authorities,- — -among them, Albright v. McTighe, 49 Fed. 817, and Moreland v. Durocher, 121 Mich. 398 (80 N. W. 284). It is insisted that the last two cases control this one.

The case of Albright v. McTighe, 49 Fed. 817, arose upon a motion for a new trial. There were three defendants. While the court thought that it had the right to grant a motion for a new trial as to one defendant, and to enforce the verdict of the jury against the other two, it declined to do so, and granted a new trial as to all three defendants, using the following language:

“The question of the joint and several liability of these defendants as tort feasors was not much discussed before the jury, if at all. Proof was admitted showing the solvency of the firm of McTighe & Co., and its ability to answer any probable verdict that might be found against the firm. It by no means follows that this or another jury would compute the same damages against two of the defendants as against all three of them; and while perhaps, in strict law, this would not be a sufficient tech nical ground for a new trial in an action of tort, like this, where the defendants are jointly and severally liable to the plaintiff for such damages as he may recover, yet, exercising that discretion which all courts possess in the matter of new trials, and to enable the defendants to more fully present this view of the case to the consideration of another jury, I am constrained to direct a new trial of this case, solely because I feel that it may be unjust to McTighe and McKee, whatever wrong they may have committed against the plaintiff, however enormous the outrage upon him may have been, and however justly they may deserve this verdict, to assume that the jury, with all the facts before them as to Sullivan, and excusing or mitigating the wrong as to him, would have given the same verdict as to them. There were three partners sued, and all were supposed to be equally guilty and equally liable. From the beginning to the end, no distinctions were made between them, and the verdict was given on this basis. However technically we may have the power (and I do not doubt it) to enforce against two a verdict which was given against three, it seems to me it would be yield ing too much to a sense of justice to an outraged plaintiff and in some sense would be assuming the power and authority of the jury in affixing the damages, for the court to discharge one of three, and hold only the two, when the jury had not had their attention called to the matter in any way. To invoke the rule of the separate liability of each and every one of several joint tort feasors for the very first time in the trial of a case upon the motion for a new trial, and to enforce it by a-ruling that one may be discharged after verdict against all, and the others held, may be lawful enough under some circumstances; but a court, acting impartially towards all parties, must feel a sense of its injustice when it appears that neither in the declaration, the pleas, the arguments of counsel, nor the charge of the court, were the jury invited to give their consideration to that subject, and that' they rendered a verdict supposing, as they might do, that all were to share its burdens, if all were able to do it. It is too much like a verdict by the court, rather than one by the jury, to take advantage of these technicalities by refusing two of the defendants a new trial which is given to the other.”

The case of Moreland v. Durocher, supra, was also, one where the question arose upon a motion for a new trial, where there were two sets of defendants, all of whom moved for a new trial. The court granted a new trial as to some of the defendants, and refused it as to others. This court held that, as the action was severable as well as joint, the circuit judge had the right to grant the motion for a new trial as to some of the defendants, and refuse it as to others, and his action was affirmed.

This case is quite unlike either of those, or unlike any of the cases cited by counsel. The plaintiff recovered a joint judgment, which might have been rendered upon the joint counts in the declaration, against the two defendants. One of the defendants appealed the case to this court. No suggestion was made in this court by the plaintiff that the judgment was good as to Mr. Murdock in any event, and must stand as to him, even though the case was reversed as to Mrs. Murdock. It was claimed that there was no error in the trial of the case, and that the judgment should be affirmed. The case was reversed, not only because testimony was allowed which was incompetent as to Mrs. Murdock, but also because testimony was introduced which was incompetent as to both defendants. A new trial was ordered, and the case was remanded to the court below. After a delay of nearly a year, this motion was made. Was not the effect of the judgment in this court to make a trial in the court below necessary before any judgment could be enforced in favor of plaintiff ? Could not either party to the record notice the case for trial ? We think both of these questions should be answered affirmatively. But, if it be conceded that the trial judge had the right to entertain the motion made by the relator, how does the case then present itself ? The trial judge had listened to two jury trials. He is familiar with what the record discloses, and with the claims of the respective parties. It is evident, from his return, that he thinks that a very different verdict might be rendered against Mr'. Murdock alone from what was rendered against the two defendants jointly. Under such circumstances, we should not be inclined to review his action in overruling the motion.

The order of the circuit judge is affirmed.

Long and Grant, JJ., concurred with Moore, J. Montgomery, C. J., and Hooker, J., concurred in the result.


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    GOODRICH v. CITY OF DETROIT.
    1. Municipal Corporations — Eminent Domain —Street Opening — Judgment—Collateral Attack — Description op Lands Taken.
    1 Comp. Laws 1897, § 3894, provides that the petition in proceedings by a municipality to take private property for the public use shall contain a description of the property to be taken, and the names of the owners and others interested. Section 3399 provides that the jury shall award just compensation to such persons for property so taken. A petition in a street-opening proceeding contained a substantially correct general description of the land to be taken, and referred to a plat attached thereto, correctly showing the original lots and descriptions, with dimensions, and also the part proposed to be taken; but, in the part of the petition apportioning the general description among the several owners, there were some inaccuracies. Such owners were made defendants in the proceeding, and raised no objection to the sufficiency of the descriptions, and took no appeal from the judgment confirming the award, which described the land as in the petition, and referred thereto. Held, that persons whose lands were not taken for the improvement, but who were assessed therefor, could not attack the proceeding collaterally, in a suit to ■ restrain the collection of the assessment, on the ground that the several parcels of land to be taken were not correctly de scribed.
    3. Same — Oath to Jurors.
    Nor could they attack such proceeding on the ground that the record therein failed to show that the oath administered to the jury was in the form prescribed by 1 Comp. Laws 1897, § 3398.

      3. Same —Assessments Against Property Benefited — Assessment District.
    1 Comp. Laws 1897, § 3406, provides that, if the common council believe that a portion of the city in the vicinity of the proposed improvement will be benefited thereby, they may determine that the whole or any just proportion of the compensation awarded by the jury shall be assessed against the owners of real estate deemed to be thus benefited, and that they shall then, by resolution, fix and determine the district or portion of the city benefited, and specify the amount to be assessed against the owners of the taxable real estate therein. It further provides that the assessment shall be made, and the amount levied and collected, in the same manner, and by the same officers and proceeding, as nearly as may be, as is provided in the charter of the city for assessing, levying, and collecting the expense of grading a street. Held, that the common council of Detroit is authorized to include within the assessment district in a street-opening case lands which do not front upon the proposed opening, although the city charter declares that, when a street is graded or paved, the lands fronting on the portion thereof so improved shall constitute an assessment district.
    4. Same — Extent of Benefits — Sufficiency of Resolution of' Council.
    A resolution of the council fixing an assessment district under said statute, which declares that the property within such district is benefited by the proposed improvement, and directs-that a specified amount be levied upon the several pieces or parcels of land included therein, in proportion, as nearly as-maybe, to the benefit and advantage which each lot or parcel is deemed to acquire by the improvement, is not open to the objection that it does not find that the district is benefited to the extent of the sum directed to be levied.
    5. Same — Constitutional Law.
    Nor is the statute unconstitutional in that it does not expressly limit the amount to be assessed upon such district to the amount of the benefits; such limitation being clearly inferable. Voigt v. City of Detroit, ante, 547, approved.
    Appeal from Wayne; Lillibridge, J.
    • Submitted February 6, 1900.
    Decided March 27, 1900.
    Bill by John C. Goodrich and Clarence M. Burton against the city of Detroit and Louis B,. Littlefield, city treasurer, to enjoin the collection of a special assessment. From a decree dismissing the bill, complainants appeal.
    Affirmed.

      Bacon & Yerkes, for complainants.

      C. D. Joslyn, for defendants.
   Long, J.

The facts are sufficiently set out in the opinion of Judge Lillibridge, who heard the case in the court below. "We adopt the opinion. It is as follows:

“The bill in this case is filed to enjoin the collection of a special tax levied for the opening and extending of Milwaukee avenue between Chene street and Mt. Elliott avenue, 60 feet wide. The proceedings were taken under the general act (chapter 83, 3 How. Stat.), as amended. The complainants are not persons whose lands were taken by the proposed opening, and consequently they were not parties to the proceeding for the opening of said street, but they are owners of land within the assessment district authorized by section 3064o, and therefore, so far as the bill filed in this cause seeks to impugn the opening proceedings prior to the verdict and judgment, it is a collateral attack upon such proceedings. Several grounds are urged why the assessment should be held void:
First. That the petition for opening the street and the verdict of the jury rendered in said cause do not describe the several parcels of land to be taken for such improvement. The statute (3 How. Stat. §. 3064c) provides that the petition shall contain a description of the property to be taken, and, generally, the nature and extent of the use thereof that will be required, and also the names of the owners and others interested in the property, so far as can be ascertained. The statute also requires the jury, by their verdict, to award to each of the owners and persons interested a just compensation for the property taken. The cases cited in complainants’ brief relate chiefly to the opening and laying out of drains or to proceedings for condemning land for railway purposes. The requirements as to the description of the lands proposed to be taken in those cases are found in 1 How. Stat. §§ 1696, 3332, and are essentially different from that above quoted. The statute in those cases requires substantially that each distinct parcel of land shall be described, whereas it will be seen that in the case of street opening there is no such requirement. Moreover, the cases cited are those in which the question was raised by the landowners in the direct action on appeal or by writ of error or certiorari, and not collaterally by other persons than the owners of the land, as in this case. These authorities are not, therefore, in my opinion, applicable to the case of street openings and to a collateral attack upon such proceedings.
“In this case the petition, in the first column, describes with substantial accuracy all the land to be taken for the proposed opening. This is subject to one qualification. In one description of land in the first column, in describing a course or direction, there is a clerical error. Instead of the course running ‘north, 64 degrees east,’ as is correct, the description reads ‘south, 64 degrees west.’ All the other descriptions containing the same course or direction read correctly, viz., ‘north, 64 degrees east.’ That this is a clerical error is proved by the fact that the original manuscript description on file reads correctly, to wit, ‘north, 64 degrees east.’ Attached to the petition, also, is a carefully-prepared plat of all the land proposed to be taken. This plat is made according to scale, and certified to by the city engineer, and shows the original lots and descriptions, with dimensions, and the part proposed to be taken is in colors, with dimensions of every parcel of land to be affected, and is correct in every particular. This plat is referred to in the petition, and made a part thereof. But in the' second column of the petition, wherein it was attempted to subdivide and apportion the general description contained in the first column among the several owners, there are some inaccuracies of description. These several owners were all made parties defendant, and appeared, and made no objections to such inaccuracies or errors of description of their property. They made no objection whatever to the jurisdiction or to proceeding in the case. They introduced testimony as to the value of their lands which would actually be taken, as shown by the plat, and the jury awarded them severally such damages as they would suffer, as shown by the plat. The descriptions in the verdict are the same as in the petition. The verdict also refers to the plat in a finding that it is necessary to take the private property described in the petition in this cause. Judgment-was duly entered confirming the verdict, and no appeal has been taken therefrom, and the time for appeal has expired. It was stated on the argument that all of the different persons whose lands were taken have received and accepted their awards as per the verdict, and have executed conveyances to the city of the lands actually taken.
“ The question before me is not whether some or any of those defendants, the owners of land taken, might have enjoined the city of Detroit from proceeding to take possession of lands so inaccurately described, for they have all submitted to the jurisdiction and the verdict, and received their awards; but the question is whether other pei’sons, these complainants, whose lands were not taken, but which are within the assessment district made to pay for the said opening, can take advantage of .such irregularities and inaccuracies to enjoin the collection of the said tax. It is well established that a judgment can be attacked collaterally only for want of jurisdiction. Did the recorder’s court, therefore, have jurisdiction of the proceeding to make the proposed opening, notwithstanding such errors in description ? The general description of the land to be taken was substantially correct. The plat must be regarded as a part of the petition, and together they correctly showed the land to be taken in detail, with dimensions. Taken together, the inaccuracies of description are corrected upon the very face of the papers. There is not even a claim that any one was misled thereby. Moreover, the statute (3 How. Stat. § 3064j) provides that amendments may be allowed in the description of property proposed to be taken as well after as before judgment confirming the verdict. This would seem to imply that errors in description of small parcels were hot intended to defeat the jurisdiction, so long as the whole property to be taken was correctly stated; otherwise, the provision for amending descriptions would be meaningless and useless. I have no doubt, therefore, that the recorder’s court did have jurisdiction of both the persons and the subject-matter of the proceeding, and that the city of Detroit got a good title to the lands shown in the plat. If any of the defendants whose lands were to be taken had objected to the descriptions, they would undoubtedly have been at once corrected, under the above liberal provision for amendments; and, since none of such defendants did object to the descriptions, they must be regarded a,s having waived all inaccuracies of description, and that the verdict and judgment cure all of such errors.
“Second. The statute (3 How. Stat. § 3064g) prescribes the oath which the jurors shall take in street-, opening cases. The only record found in the proceedings of the oath taken by the jurors in this case is contained in the journal, as follows: ‘Thereupon the jury impaneled (here follow the names of the jury) are duly elected, tried, and sworn in the manner prescribed by law,’ etc. It is contended that the omission to show that the jury took the oath required by the statute is a fatal defect in the proceedings. It is not doubted that where, in special proceedings, the statute requires a particular oath to be taken, it must be shown that the oath prescribed was actually administered. If the oath required was not administered, the objection was undoubtedly open to any of the defendants in that case, the parties interested; but it is equally well settled that the verdict, when rendered, cures all defects and irregularities in the proceedings not jurisdictional. In my opinion, this objection is not open to these complainants, who were not parties to that proceeding, and cannot take advantage of it in a collateral attack upon the verdict and judgment. All the cases cited in the complainants’ brief are those in which the objection was raised in a direct review of the proceedings, either on certiorari, error, or appeal, and, in my judgment, they are not applicable to the case of a collateral attack on such proceedings.
Third. That none of the lots of complainants specified in the bill of complaint fronted on the proposed opening, and that the assessment district cannot, under the statute, embrace any lots not on the proposed opening. The assessment in this case was made under the provisions of 3 How. Stat. § 3064o, which provides that, if the common council believe that a portion of the city in the vicinity of the proposed improvement will be benefited by such improvement, they may, by an entry in their minutes, determine that the whole or any just proportion of the compensation awarded by the jury shall be assessed upon the owners or occupants of real estate deemed to be thus benefited, and that they shall, by resolution, fix and determine the district or portion of the city benefited, and specify the amount to be assessed upon the owners thereof. This would seem to be conclusive that the council had authority to include within the assessment district lots not on the proposed opening. The statute also provides that the assessment shall be made, and the amount levied and collected, in the same manner, and by the same officers and proceeding, as near as may be, as is provided in the charter of the municipality for assessing, levying, and collecting the expense of public improvements when a street is graded. Complainants’ counsel contend that this limits the assessment district to lots fronting on the proposed improvement, under section 216 of the charter of the city of Detroit, applicable to grading and paving streets; but, in my opinion, the above provision refers only to the manner or form of making the assessment, and to the officers who shall make and collect the same, and not to the extent of territory which may be included in the assessment district. To hold otherwise would be to entirely ignore the earliér provisions of the statute, permitting the council, in its dis^ cretion, to make a larger assessment district.
“Fourth. It is further contended that the resolution of the common council fixing the assessment district did not specify that such district was benefited by such improvement to the extent of 115,214.75, the amount to be assessed upon it, and an elaborate argument is made to show that such finding is the only constitutional or legal basis on which such a tax can be imposed, and the case of City of Detroit v. Judge of Recorder's Court, 112 Mich. 588 (71 N. W. 149, 42 L. R. A. 638), is cited. There is no doubt of the principle invoked, that the actual benefit received, as determined by the proper authority, is the only legal or constitutional basis upon which such an assessment can be sustained, and that such an assessment, without such a determination, is both illegal and unconstitutional. The only question here is whether the statute, and the resolution of the council in compliance therewith, are not in effect a finding or determination that the assessment district is benefited to the extent of the assessment. That resolution declared, first, that the property within the •assessment district is benefited by the proposed opening. It then directed that there should be levied upon the several pieces or parcels of real estate included in the assessment district the amount of $15,214.75, in proportion, as near as may be, to the advantage which each lot or parcel is deemed to acquire by such improvement. And again, the board of assessors is directed, in making the roll, to assess and levy the amount of $15,214.75, each lot or parcel to be assessed a ratable proportion, as near as may be, of said amount, in accordance to the amount of benefit derived by such improvement. In my opinion, this is a substantial compliance with the provisions of the statute. The case of City of Detroit v. Judge of Recorder's Court was entirely different. In that 'case the law provided arbitrarily that in all cases one-half of the award should be assessed upon the assessment district fixed, without any regard as to whether the property was benefited. In other words, neither' the common council nor the jury were allowed to exercise any discretion relative to the benefits received, but were required to assess 50 per cent, of the verdict, regardless of benefits received. The court held that the legislature could not arbitrarily fix such a percentage.
“Some other points are urged in the complainants’ brief, but they were not strongly insisted on in the argument, and it is not necessary to discuss them. In my opinion, the injunction should be dissolved, and the bill dismissed.”

The decree was entered in accordance with the above opinion.

We think the opinion fully sustained by the authorities. In the case of Scotten v. City of Detroit, 106 Mich. 564 (64 N. W. 579'), it was held that the statute contemplates a judicial determination of the questions raised by the averments of the petition; that a judgment of confirmation necessarily includes a determination by the court that the proceedings were properly instituted; that such judgment is not open to collateral attack; and that, therefore, a judgment having been properly entered, a taxpayer cannot maintain a bill to restrain the collection of an assessment for benefits derived from the improvement, on the ground that the resolution of the council was not legally adopted. See, also, Smith v. City of Detroit, 120 Mich. 572 (79 N. W. 808). The question of the constitutionality of the act is’ fully discussed and disposed of in the case of Voigt v. City of Detroit, ante, 547 (82 N. W. 253). The other questions raised have been so fully discussed by the learned circuit judge that nothing further need be added.

The decree below must be affirmed, with costs

The other Justices concurred.