author: Stone, J.

text:
    MAY v. CHARLES HOERTZ & SON.
    1. Master and Servant — Workmen’s Compensation Act — Industrial Accident Board — Contract for Attorney’s Fees — Approval.
    Under section 10, part 8, of the workmen’s compensation act, the industrial accident board has jurisdiction to fix the fees of attorneys as between themselves and injured employees or their dependents, and any contracts for fees for such services, in order to be valid and. enforceable, must meet with the approval of said board.
    2. Same — Constitutional Law — Right to Choose Attorney.
    Said section is not unconstitutional as limiting the right of any suitor in any court in this State to prosecute or defend his suit, either in his own proper person or by an attorney or agent of his choice, in violation of section 12, art. 2, Const. Michigan, the industrial accident board not being, in contemplation/of law, a court.
    3. Same — Certioeabi—Excessive Attorney’s Fees — Judgment— Statutes.
    On certiorari to review the action of the industrial accident board in reducing the amount of the fee retained by claimant’s attorneys from the amount awarded her under the workmen’s compensation act, and paid to them, neither this court nor said board under said special statutory proceeding has authority to enter a judgment for such excess amount retained.

      See notes in L. R. A. 1916A, 23; L. R. A. 1917D, 80.

      Certiorari to Industrial Accident Board.
    Submitted October 18, 1918.
    (Docket No. 86.)
    Decided January 15, 1919.
    Frances May presented her claim for compensation against Charles Hoertz & Son and others for the accidental death of her husband in defendants’ employ: On petition of claimant against Thompson & Temple for an adjustment of attorneys’ fees in said matter. From an order determining the amount due, defendants bring certiorari.
    Affirmed.

      Thompson & Temple, in pro. per.

      Ellis & Ellis, for appellee.
   Stone, J.

This is a controversy between the claimant and her attorneys, Thompson & Temple, relating to the amount of attorney fees due to the latter for their services and expenses in the litigation of claimant’s claim for compensation in Opitz v. Hoertz, 194 Mich. 626. In that case this court held that the owner of the premises, Brown & Sehler Co., was liable under the workmen’s compensation law. After that case was remanded to the industrial accident board for further proceedings, such further proceedings were had which resulted in the allowance to claimant, as the dependent of her deceased husband, Fred May, of the sum of $5.54 per week for 300 weeks to be paid by Brown & Sehler Co.

The industrial accident board found that on April 25, 1917, there was due to , claimant $642.64 accrued compensation, and on April 30, 1917, Brown & Sehler Co. paid said $642.64 to claimant and she signed a receipt for that sum. The compensation due and to become due for the entire period of 300 weeks aggregates $1,662. Thompson & Temple, claiming that they had a contract with claimant in and by the terms of which they were to receive from her 25 per cent, of the amount recovered or awarded, for their services and expenses and having said check indorsed by claimant in their possession, caused the same to be cashed, and deducted and kept from the amount 25 per. cent, of the entire compensation awarded, or $415.50, as their attorney fees.

Claimant denied that there was any such agreement, or any agreement as to the amount of compensation; and presented to the industrial accident board her petition wherein she prayed, among other things, that said board should hear the petition and consider all the facts and testimony that might be produced, and fix the compensation that Thompson & Temple ought to have for their work and expenses, and that an order might be made specifying how much of said $415.50 said attorneys had the right to retain, and how much of it they should pay back to petitioner.

Thompson & Temple answered the petition setting forth their claim as above stated, alleging that the amount of their fees as agreed upon had been settled according to the terms of the agreement, and paid, and that the transaction was closed. Testimony was taken and the matter was submitted to the board. The record shows that by stipulation of counsel for the respective parties, “it was agreed that any of the records and files in the case, including the printed record, could be used by either party on the argument in this case or in their briefs.”

The industrial accident board in a written finding reviewed the facts in the case, and said in part:

“It seems to us that the only question in this case is, What was the value of "the services performed for Mrs. Frances May by Thompson & Temple as her attorneys? Section 10 of part 3 of the workmen’s compensation law provides in part as follows:
“ ‘The fees and the payment thereof, of all attorneys * * * for services under this act shall he subject to the approval of the industrial accident board.’ [2 Comp. Laws 1915, § 5463.]
“The board understands this provision to mean that the board has jurisdiction to fix the fees of attorneys as between themselves and the injured employees, or the dependents of injured employees under the-workmen’s compensation law. The attorneys, Thompson & Temple, deny this power of the board and claim in their brief that they had a right to make a 25 per cent, contract with Mrs. Frances May, and that the parties had a right to settle on that basis, and that they did so, and that there is nothing more to the matter.
“If this were an ordinary contract in an ordinary business transaction between the parties, that view might be correct, but it seems to us that it was the clear intent of the workmen’s compensation law to provide that the amount of-attorney fees for injured employees, and their dependents, should be subject to the control of the industrial accident board.”

After reviewing the evidence and the files and records before it, the board concluded as follows:

“From all the files, records, proceedings and testimony in this case, the board finds:
“ (a) That a reasonable allowance to Thompson & Temple, attorneys for Frances May in this case, to cover and pay for all their services, and to pay back any expenses they may have paid out, is the sum of $125.
“(b) That on or about April 30, 1917, said Thompson & Temple retained $415.50 of the money paid to Mrs. Frances May when they should have retained only $125, so that they have retained $290.50 more than they should have retained.
“(c) That said Thompson & Temple, a copartnership composed of George W. Thompson and Fred C. Temple, should forthwith pay to Frances May the said sum of $290.50.
“(d) That it is the duty of .the industrial accident board to pass upon the question of attorneys’ fees in this case.
“An order will be entered in conformity with the terms of these findings.”

A formal order was subsequently entered, and Thompson & Temple have brought the matter here for review, by certiorari.

There are many assignments of error; but in their brief, and upon the hearing before us, appellants relied upon the points that there was a contract between the parties, and a settlement, and for that reason the industrial accident board has no jurisdiction in the matter. And it was further contended that, if such power is given to the board by the statute above referred to, the same is unconstitutional and void.

1. An examination of the record satisfies us that there was evidence to sustain the findings of fact by the board, above referred to. The industrial accident board did not distinctly find whether or not the contract as claimed by Thompson & Temple with the claimant had been made. Conceding, but not deciding, that said contract was made as claimed by Thompson & Temple, it is not claimed that it was ever approved by the industrial accident board, as is required by section 10 of part 3 of the act. The provision of the statute above referred to is plain and unequivocal, and provides in terms that the fees and the payment thereof of all attorneys for services under the act shall be subject to the approval of the industrial accident board. We agree with the conclusion reached by the board, that under this provision it has jurisdiction to fix the fees of attorneys as between themselves and injured employees, or, the dependents of injured employees,. under the workmen’s compensation law. This view is not an anomaly; it is in accord with other provisions of the same statute. Section 5 of part 3 of the act (2 Comp. Laws 1915, § 5458) is as follows:

“If the employer, or the insurance company carrying such risk, or commissioner of insurance, as the case may be, and the injured employee reach an agreement in regard to compensation under this act, a memorandum of such agreement shall be filed with the industrial accident board, and, if approved by it, shall be deemed final and binding upon the parties thereto. Such agreements shall be approved by said board only when the terms conform to the provisions of this act.”

We have held repeatedly that the validity and binding force of an agreement between the employer and employee depend upon the approval of the board. A citation of the authorities upon this point is unnecessary. We think there is nothing unreasonable or inconsistent with the general terms of the act to hold, as we must, that attorney fees for services under the act in order to be valid and enforceable must meet with the approval of the industrial accident board. This, in a proceeding like the instant one, gives that board authority and right, upon petition and proper showing, to settle and fix the amount of compensation for services.

2. Referring to the question of the constitutionality of this provision and of the act generally, we need refer only to the case of Mackin v. Detroit-Timkin Axle Co., 187 Mich. 8. In that case, on page 26, the following language was used by Justice Steere, who wrote the unanimous opinion of this court:

“It is urged that the clause of the act making attorneys’ and physicians’ fees in accident claims adjusted under its provisions subject to the approval of the industrial accident board, and providing that no payment under this act shall be assignable or subject to attachment or garnishment, or be held in any way for any debts, is unconstitutional as limiting the right of contract, preventing the injured party from employing an attorney of his choosing. In support of this contention, section 12, art. 2, of the Constitution, is cited, which is as follows:
“ ‘Any suitor in any court in this State shall have the right to prosecute or defend his suit, either in his own proper person or. by an attorney or agent of his choice.’
“The industrial accident board is not, in contemplation of law, a court, and a claimant before it for damages resulting from personal injuries is not strictly a ‘suitor in any court,’ but the right of a claimant to select and employ an attorney or agent to represent him in the matter is recognized by the provision referred to. These restrictions in the act, as applied to those who submit to its provisions by election, certainly cannot be held unconstitutional. They were deemed by the legislature proper and necessary to safeguard the interests of the class for whose benefit largely this act to ‘promote the welfare of the people of the State,’ was passed; they are germane to the .purpose of the act, and in the light of conditions previously existing in litigation over personal injuries to workmen, of which courts of last resort have, taken judicial notice in construing workmen’s compensation hcts, are beneficial and appropriate, if not essential, to an efficient administration of the law.
“We do not deem it necessary to review in detail the underlying reasons which are recognized as fully justifying and sustaining these special provisions, but those interested in that particular will find them graphically elaborated by Judge McPherson in Hawkins v. Bleakley, 220 Fed. 378, and discussed in detail in Cunningham v. Improvement Co., 44 Mont. 180 (119 Pac. 554), and also pertinent reflections by Lord Justice Stirling in Ayres v. Buckeridge [1902], L. R. 48 K. B. Div. 57.”

It is urged by counsel for appellee that this court should enter judgment in this proceeding, and cause execution to be issued for the amount thereof. An examination of the statute referred to by counsel, satisfies us that this court has no such power. No judgment has been entered in this proceeding, and neither the industrial accident board nor this court has authority to enter a judgment. This is a special statutory proceeding; an exercise of the police power of the State.

The order of the industrial accident board is affirmed, with costs.

Bird, C. J., and Ostrander, Moore, Steere, Brooke, Fellows, and Kuhn, JJ., concurred.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    HAMILTON v. SECRETARY OF STATE.
    1. Constitutional Law — Woman Suffrage — Amendment — Datij Effective.
    The constitutional amendment conferring the franchise upon women in this State, adopted by the people November 5, 1918, became effective December 5, 1918, under section 2, article 17 of the Constitution, as amended in 1913, said section controlling as to amendments proposed by the legislature under section 1, article 17, as well as to those proposed by initiative.
    2. Same — Mandamus—Amendment—Petition—Legal Voters.
    Mandamus will not lie to compel the secretary of State to submit to vote of the people a constitutional amendment, where the petition therefor contained less than 10 per cent, of the legal voters of the State, as required by section 2, article 17, of the Constitution, after eliminating the signatures of women who signed it before December 5, 1918, the date they became legal electors.
    Mandamus by James Hamilton to compel Coleman C. Vaughan, secretary of State, to submit a proposed amendment to the Constitution.
    Submitted January 29, 1919.
    (Calendar No. 28,646½.)
    Writ denied January 30, 1919.

      Moore & Moore, for plaintiff.
   Per Curiam.

This is an application for mandamus to compel the secretary of State to submit a proposed constitutional amendment to the people at the next general election. The petition filed with the secretary of State was signed by 47,652 persons claiming to be legal voters. It is conceded that but 43,469 legal signatures were necessary in order to secure the submission of the proposed constitutional amendment to the people. The secretary of State refused to submit the proposed amendment to the people upon the ground that only 38,631 .of the signatures are legal; the balance of said signatures being those of women who signed between November 10th and December 5, 1918.

On November 5, 1918, a constitutional amendment was adopted by the people of the State conferring the franchise upon women. If that amendment took effect on the date of election, November 5th, the signatures of the women signers were legal, should have been counted by the secretary of State, and the mandamus should issue. If, however, as held by the secretary of State, under The advice of the attorney general, said amendment conferring the franchise upon women did not become effective until 30 days after the election on November 5th, that is, not until December 5, 1918, the signatures of the women upon said petition should not be counted and the secretary of State should be held properly to have refused to submit the proposed amendment to the people. It is the contention of relator that the amendment became effective on the date of election, to wit, November 5, 1918, under section 1 of article 17 of the Constitutionwhich follows:

“Any amendment or amendments to this Constitution may be proposed in the senate or house of representatives. If the same shall be agreed to by two-thirds of the members elected to each house, such amendment or amendments shall be entered on the journals, respectively, with the yeas and nays- taken thereon; and the same shall be submitted to the electors at the next spring or .autumn election thereafter, as the legislature shall direct; and, if a majority of electors qualified to vote for members of the legislature voting thereon shall ratify and approve such amendment or amendments, the same shall become part of the Constitution.”

That section appears to be exactly the same as section 1 of article 20 of the Constitution of 1850, which was construed by this court in the case of The Seneca Mining Co. v. Secretary of State, 82 Mich. 573 (9 L. R. A. 770). We there held that such amendments took effect from the time of their ratification by the popular vote. The difficulty with relator’s position arises out of the fact that in 1913 by concurrent resolution an amendment to the Constitution was effected, section 2 of article 17, which is in part as follows:

“Amendments may also be proposed to this Constitution by petition of the qualified voters of this State. Every such petition shall include the full text of the amendment so proposed and be signed by not less than ten per cent, of the legal voters of the State. Initiative petitions proposing an amendment to this Constitution shall be filed with the secretary of State at least four months before the election at which such proposed amendment is to be voted upon. Upon receipt of such petition by the secretary of State, he shall canvass the same to ascertain if such petition has. been signed by the requisite number of qualified electors, and if the same has been so signed, the proposed amendment shall be submitted to the electors at the next regular election at which any State officer is to be elected. Any constitutional amendment initiated by the people as herein provided, shall take effect and become a part of the Constitution if the same shall be approved by a majority of the electors voting thereon and not otherwise. Every amendment shall take effect thirty days after the election at which it is approved.” * * *

It is the contention of relator that the sentence, “Every amendment shall take effect thirty days after the election at which it is approved,” refers only to amendments proposed by the initiative and not to amendments proposed by the legislature. We are unable to agree with this contention. This language is plain and unambiguous. Considering both provisions, we are of opinion that the latter, last adopted, is controlling and applies to all amendments.

The mandamus is denied.


author:
Steere, J.
      Brooke, J.

text:
    TRIANGLE LAND CO. v. CITY OF DETROIT.
    1. Taxation — Rights of Purchaser of State Bid.
    A State tax bid transferied to a private' purchaser is in his hands in all respects like a title bid off by himself originally.
    2. Municipal Corporations — State Agency — Pike Department— Local Activity.
    In purchasing land from private owners for the purpose of erecting thereon a building to be used in connection with its fire department, a city was not acting as an agent of the State; said property being devoted exclusively to one of its local municipal activities, and not for the use of the people of the State at large.
    3. Taxation — Municipal Corporations — Exemptions.
    Land purchased by the city of Detroit for purely municipal purposes after the assessment roll for the State and county taxes had been finally reviewed and confirmed by the common council was subject to the tax thereafter levied for that year.

      4. Same — Municipal Corporations — Exemptions — Delinquent Taxes — Rights oe Owner.
    In proceedings to enforce a valid tax title against a municipal corporation, there is no distinction, so far as rights under the sale for the delinquent taxes is concerned, between defendant and any other negligent owner.
    ■5. Same — Notice—Publication—Service.
    The published notice of the auditor general’s petition, order of hearing, etc., were, under the law, equivalent to a personal service upon defendant of notice of all proceedings in and by order of the chancery court leading up to and including the public sale of lands at the annual tax sale for that year.
    6. Same — Municipal Corporations — Detroit Charter — Vacating Assessment.
    A resolution adopted on August 9, 1910, by the common council of the city of Detroit, acting under its charter (consecutive section 199, charter 1914-16), authorizing it “when it shall appear that any tax or assessment is unjust, or is based upon any property not owned by the person to whom it is assessed, * * * to repay the same out of the contingent fund, if collected, or if not collected, to vacate the assessment in whole or in part,” purporting to cancel the taxes assessed on a piece of land for the year 1907, returned delinquent and bid. off to the State, without disclosing the ground upon which they were canceled and without providing for their payment as the charter provides, was abortive and ineffectual.
    7. Same — Notice to Redeem — Sufficiency.
    A notice to redeem served upon the owner by the purchaser of a tax title based upon the delinquent State and county taxes for the years 1907 and 1908, stating truly the exact amount the purchaser was required to pay the auditor general as a condition of the purchase, specifying clearly years, amounts, and descriptions, was sufficient under the statute, although the taxes for the year 1908 were conceded to be void. Fellows, J., concurring in result, but holding that the sufficiency of the notice was not before the court.

      8. Same — Rights oe Parties — Statutes.
    In such proceedings the rights of the parties are purely statutory, and can be neither enlarged nor limited by the court.
    Brooke and Kuhn, JJ., -dissenting.
    Appeal from Wayne; Kendrick, J., presiding.
    Submitted October 16, 1917.
    (Docket No. 165.)
    Decided September 27, 1918.
    Rehearing denied January 31,. 1919.
    Petition by the Triangle Land Company against the city of Detroit and another for a writ of assistance. From a decree for defendants, plaintiff appeals.
    Reversed, and decree entered for plaintiff.

      Albert DeCamp and Frederick E. DeCamp, for plaintiff.

      Walter Barlow (Harry J. Dingeman, of counsel), for defendants.
   Steere, J.

Supplemental to a decree of the Wayne county circuit court in chancery rendered on petition of the auditor general for sale of lands delinquent for taxes in the year 1907, the Triangle Land Company filed this petition in the circuit court of Wayne county under sections 72 and 137 of the general tax law (sections 4069 and 4135, 1 Comp. Laws 1915), for a writ of assistance to obtain possession of a piece of land sold pursuant to such decree, located on South Lafayette boulevard, Detroit, described as lot 3 and the westerly one-half of lot 2 in block 55, Woodbridge Farm addition, as divided by commissioners in partition in 1864. The petition was denied by the trial court and appeal taken by plaintiff to this court for review.

The land in question was sold for delinquent taxes of both the years 1907 and 1908. It is conceded that the property was not subject to taxation in 1908 and the deed given by the auditor general on the sale for that year is invalid, as a deed. The facts are undisputed and have been fully stipulated by counsel. Concisely stated, so far as material here they are as follows : Prior to May 22, 1907, the property in question belonged to Maud Spencer Ledyard and Elizabeth Cass Goddard to whom it was assessed for taxes in the year 1907, the assessment roll being finally reviewed and confirmed by the common council of the city of Detroit on May 2, 1907. On May 22, 1907, it was purchased by the city of Detroit from the above named owners who conveyed it to the city by a properly executed warranty deed of that date, which was recorded in the office of the register of deeds of Wayne county on July 20, 1908. The city took possession immediately following the purchase and by its board of fire commissioners erected a building upon the premises during that year at a cost of about $20,000, for the accommodation of ladder company No. 12 of its fire department, and has since continued to occupy and use the property for that purpose.

The State and county taxes of the year 1907 assessed against said land remained unpaid and were returned delinquent by the county treasurer of Wayne county to the auditor general of the State in the regular course of proceedings under the tax law. In manner and time prescribed by statute steps were taken by the auditor general to foreclose the lien of the State for delinquent taxes of 1907 and said land was included in his petition filed in the chancery court of Wayne county for decree of foreclosure and sale of lands delinquent for taxes for that year. Pursuant to a decree rendered upon such petition the delinquent lands of 1907 were sold at the annual tax sale of May, 1910, and this property was bid in by the State. Lot 3 was thereafter purchased from the State by Lillie B. DeCámp and the west half of lot 2 by the Triangle Land Co., appellant herein. Tax deeds were subsequently issued by the auditor general to each of them for the description purchased. The statutory notice of tax purchase and conditional right of owner to reconveyance was served by plaintiff on the city of Detroit, as the last owner in the recorded chain of title and occupant of the land, on January 16, 1912, and return of personal service by the sheriff was duly filed with the clerk of Wayne county. Lillie B. DeCamp had served such notice of her tax purchase on November 7, 1911, followed by filing the sheriff’s return of personal service:

The common council of the city of Detroit at its session held on the 9th day of August, A. D. 1910, passed a resolution purporting to cancel the taxes assessed on said premises for the years of 1907 and 1908. The taxes were never repaid out of the contingent fund, no deposit was ever made by the city of Detroit with the register in chancery of Wayne county, or tender made to the owners of the tax deeds, nor attempt made in any manner to redeem and secure reconveyance. Over six months after filing with the county clerk proof of service of her notice upon said city, Lillie B. DeCamp deeded lot 3 to plaintiff. Over six months after both of these notices had been served upon the city and filed with the county clerk, and after lot 3 had been deeded to it by Lillie B. DeCamp, plaintiff made proper demand for possession of said premises, which was refused, and notice was then given that if such demand was not complied with proceedings would subsequently be commenced to obtain possession. ' In time thereafter to protect its rights against the applicable five years’ statute of limitations plaintiff filed this petition.

It cannot be seriously questioned that upon their face all steps taken by the auditor general to foreclose the State’s lien, if any existed, and by plaintiff to per-feet its tax title by notice, etc., are in compliance with requirements of applicable provisions of the general tax law: chapter 83,1 Comp. Laws 1915, beginning on page 1500. Defendant’s position is that the land was not subject to taxation, that the State had no lien thereon for delinquent taxes to enforce and all proceedings to that end were idle, and of no validity.-

The trial court was of opinion that upon this petition and answer it was proper to and the court should “open for reconsideration and adjustment” the original decree rendered on petition of the auditor general directing sale of lands for the State and county general taxes for the year 1907, and being “satisfied that the decree would have been denied,” as to the land in question, had the court been advised of the facts as shown in this proceeding, the court accordingly “adjudged and decreed that the original decree heretofore filed and entered herein on April 23, 1910, in so far as it relates to the order to sell the particular property in question herein, is annulled, set aside and held for naught, * * * That a sale of said lands for State and county taxes assessed thereon for the year 1907 be and the same hereby is denied,” etc., concluding by declaring plaintiff’s tax deeds void and its petition dismissed. Whatever may be said of the method by which the result was reached, plaintiff’s petition can be said to have been denied on the indicated ground that the land was not subject to taxation for 1907 because owned by a municipality and devoted to a public purpose during a portion of that year; which is the ground urged by defendant here and was open to consideration there on plaintiff’s petition and defendant’s answer.

It is plaintiff’s contention that this question is foreclosed in its favor by the rule stated in Public Schools of City of Iron Mountain v. O’Connor, 143 Mich. 35, which has been accepted as the settled law upon that proposition, and since followed by assessing officers and State departments in assessment and cancellation of taxes. In that case the school board of Iron Mountain filed its petition against the tax title owner and auditor general of the State to set aside a sale of land delinquent for taxes for the year 1901, which it had purchased for school purposes on July 1st of that year and claimed was exempt from taxation, alleging that it had no knowledge of the levy of the tax or sale of the land for taxes until shortly before filing its petition. The land was assessable when the supervisor listed it upon his assessment roll in April, and when the board of review passed upon and approved the roll in May, 1901. The petition was denied because the land, having become liable, the taxes of that year so remained, although subsequently acquired for a purpose rendering it exempt, the court saying in part:

“There must be some definite period when the purchaser, whose property is generally exempt, must purchase it subject to the tax levied or to be levied thereon. It seems reasonable to hold that that time is when by law there is no power to correct the roll by adding property to or taking any from it.”

Of this it is urged by counsel for defendant that the common council of Detroit, under special provision of its city charter, does have power to correct the roll and vacate any assessment or tax levy on property located within the city whenever it appears the same is unjust or illegal, which it did in this case by its resolution of August 9, 1910, canceling the taxes assessed on said premises for the years 1907 and 1908, acting under authority of consecutive section 199 of the Detroit city charter of 1914-16, p. 134 (section 63 of chapter 7), which provides:

“The said common council shall also have power, when it shall appear that any tax or assessment is unjust, or is based upon any property not owned by the person to whom it is assessed, by a two-thirds vote of all the members elect, to repay the same out of the contingent fund, if collected, or if not collected, to vacate the assessment in whole or in part, in the manner and with like effect as is provided for in cases of illegal taxes and assessments in this chapter.”

This chapter (No. 7 of the charter) provides how the common council shall be constituted and defines its powers and duties relative to municipal affairs, including various local improvements to be paid for by taxation, which the council is authorized to provide by specified proceedings. Following a section devoted to construction of sidewalks and manner of levying and collecting taxes to defray the necessary cost of the same, section 58 of the chapter authorizes the common council to—

“provide and ordain by ordinance, that whenever it shall appear that any taxes or assessments have been illegally assessed or collected, the common council may, by a vote of two-thirds Of all members elected, direct and cause the amount so collected to be refunded out of the contingent fund, or in case it has not been collected, to vacate the assessment, and fix upon an amount, to be received in full of such tax or assessment, and no such action on the part of the council, under such ordinance, shall in any way affect or invalidate any other tax or assessment assessed, levied or collected in said city.”

Whether it appeared to the council that those taxes were unjust, or when assessed were based upon property not owned by the person to whom it was assessed, over three years before this resolution was adopted, is not disclosed; but they are shown to have been spread on an assessment roll passed upon and approved by the common council acting as a board of review, and, in the regular course of proceedings which the city itself had initiated, this land was returned delinquent for taxes, had been regularly advertised, offered at the annual tax sale and bid in by the State for such delinquent taxes at the time this resolution was passed. The State purchased the land and held it in like manner as an individual. A State tax bid transferred to a private purchaser is in his hands in all respects like a title bid off by himself originally. Section 4082, 1 Comp. Laws 1915; Auditor General v. Board of Sup'rs of Monroe Co., 36 Mich. 70; Haney v. Miller, 154 Mich. 337. In any aspect of the question the delinquent tax had passed into the hands of the State authorities, the common council had no further control over these tax proceedings at that time and the resolution purporting to cancel those State and county taxes was of no validity.

It is further claimed that plaintiff’s tax deeds are void under the ruling of this court in Graham v. City of Detroit, 174 Mich. 538 (44 L. R. A. [N. S.] 836), because they cover lands which had been acquired by the municipality and were in use for a public purpose before they had been purchased for delinquent taxes from the State. The Graham Case was an action in ejectment against the city for a portion of a public street, the easements for which had been acquired for highway purposes by condemnation proceedings. Defendant had given notice under its plea of the general issue that it did not own or claim to own the lands in question, and asserted they were in use as part of a highway for public travel under an easement acquired for that purpose, and the right of the public to so use them could not be determined in ejectment. It was held that the municipality neither owned the easements nor held the property in exclusive possession, the court saying:

“The easement in the lands in question for the purposes of public travel belonged to the State at the time it purchased such lands at the tax sales. A municipality in its control of these highways acts for the State, and has no right to the possession or use of these easements other than the public generally. It takes the burden of maintaining such easements fit for public travel. Lynch v. Town of Rutland, 66 Vt. 573 (29 Atl. 1015). These easements belong to the State, and were in use as public highways at the time they were bid in to the State for delinquent taxes.”

And it was held the auditor general could not issue deeds in the name of the State for lands in which the State had then acquired easements for public use as a part of its highways devoted to public travel.

The obstacle to applying that rule in the instant case is that the State had no- right, title, easement, or interest in, or control over, these lands. The city had bought them from private owners for municipal purposes, and was not acting for the State in its exclusive possession and control of the property for a municipal purpose. To hold that the city was acting as an agent of the State in the ownership and control of property devoted exclusively to one of its local municipal activities would be to overturn the doctrine for which cities have strenuously and successfully contended under the eegis of home rule and right of local self-government since early in the history of the State. Education and highways for the use of the people of the State at large are held to be matters of general State concern and control, while the fire departments and other purely local functions of municipalities are not. The distinction is pointed out and the rule well settled in City of Detroit v. Corey, 9 Mich. 165 (80 Am. Dec. 78); People v. Hurlbut, 24 Mich. 44 (9 Am. Rep. 103); Board of Park Commissioners v. Detroit Common Council, 28 Mich. 228 (15 Am. Rep. 202); Town of Milwaukee v. City of Milwaukee, 12 Wis. 93; Davidson v. Hine, 151 Mich. 294 (15 L. R. A. [N. S.] 575, 123 Am. St. Rep. 267, 14 Ann. Cas 352); Simpson v. Paddock, 195 Mich. 581, and cases there cited.

So far as the city’s rights under the sale of these lands for delinquent State and county taxes is concerned, there is no legal distinction in this controversy between defendant and any other negligent owner. The published notice of the auditor general’s petition,.order of hearing, etc., were, under the law, equivalent to a personal service upon it of notice of all proceedings in and by order of the chancery court leading up to and including the public sale of these lands at the annual tax sale for that year. The abortive attempt of the common council to wipe out those State and county delinquent taxes, which were beyond its control, but indicates it had actual notice as early as August 9, 1910. The lands could then have been redeemed and the whole matter adjusted by simply paying the tax of 1907 to the county treasurer, and applying to the auditor general for cancellation of those of 1908. In the prescribed course of proceedings when taxes are returned delinquent, as done by the county treasurer in this case, the property was sold to satisfy the taxes and deeds therefor given. The matter was again called to the attention of the city by personal notice of the outstanding tax titles and of its right to redeem and obtain reconveyance on payment of the taxes and prescribed penalty within six months as the law provides. This added provision in the law for collecting the revenue of the State was passed for the benefit of the defaulting taxpayer. Following all prior demands, opportunities and legal proceedings to induce payment, it again offers him relief “by giving him a last chance to save his land, it apparently being thought that, by requiring notice and giving an opportunity to repurchase, there would be little excuse for an owner losing his land through inattention.” Haney v. Miller, 154 Mich. 338. The provisions of the tax law as to the rights and duties of the respective parties in interest after a valid tax sale have been fully discussed and construed in the following cases, and others to which they refer: Ball v. Ridge Copper Co., 118 Mich. 7; Gustin v. Fitzpatrick, 182 Mich. 640; Huron Land Co. v. Manufacturing Co., 183 Mich. 45; Rousseau v. Riihiniemi, 186 Mich. 653, and Haney v. Miller, supra.

No steps were taken by the city to secure a determination of any legal questions which personal service of notice to redeem from a tax deed from the auditor general upon its property suggested, no offer or tender of payment was made and the notices were ignored during the time for reconveyance, and until this petition was filed. The contention that this neglect puts defendant in a more advantageous position than the fee owner in the Iron Mountain Case because there the question of loss of public property was not involved is not tenable. It was involved, and such loss inevitable, had that municipality treated the notice as in the instant case; otherwise the decision is a nullity and it was folly for Iron Mountain to act in the matter either by litigation or redemption, when by its doing nothing until the expiration of the six months’ notice to redeem had expired the tax deed would automatically become a nullity and the tax lien, to collect which the land was sold by the State, liquidated.

In a supplemental brief filed after this case was submitted counsel raises the point that the notice to redeem served upon it was invalid because it included the amount paid the auditor general for the taxes of 1908 which were concededly illegal, reference being made to the notice to redeem which is among the exhibits in the case. The notice contains, separately stated, the amount for each year, showing plainly the description of the land upon which it v/as paid.

As to this proposition, it is expressly stipulated in the record that “notice of its (petitioner’s) tax title in conformance with the provisions of Act No. 229 of the Public Acts of 1897 and acts amendatory” was served on defendant by the sheriff of Wayne county arid his return duly filed with the county clerk. No question was raised as to its sufficiency in defendant’s pleadings, before the trial court so far as shown, nor in the former briefs or oral argument in this court. Apparently in reliance upon the stipulation, it is not discussed in plaintiffs brief. But, even conceding that there was no waiver of the question, and the stipulation is a “scrap of paper,” we are not impressed that this belated objection is tenable. This is a purchase from the auditor general of State tax land for delinquent taxes of previous years, made under section 84 of the tax laws (section 4082, 1 Comp. Laws 1915), and it is not questioned that the notice states truly the exact amount the purchaser was required to pay the auditor general as a condition of the purchase, specifying clearly years, amounts and descriptions. By section 141 of the tax laws (section 4189, 1 Comp. Laws 1915), the fee owner desiring to redeem shall have a right to do so “by paying to the purchaser, or his grantee, or to the register in chancery of the county in which the lands lie, on certificate of the auditor general or his deputy, all sums paid as a condition of such purchase,” together with the statutory additions thereto imposed as a condition for reconveyance. The notice given in this case fully advises what amount is required to redeem in accordance with the provision of the statute. The requirements of those decisions cited by counsel, holding that the notice must specify the exact amounts paid by the purchaser of the tax title with years, descriptions, and amounts for each year on each description, and that a demand for any excess invalidates the notice, have not been violated. This subject has been somewhat discussed in Cheever v. Flint Land Co., 134 Mich. 604, where it is held that a purchaser of State tax lands under section 84 is compelled to pay as a condition of purchase a claim held by the State under a sale which, at the time of purchase, was subject to redemption. In Haney v. Miller, supra, it was claimed that the taxes assessed for a certain year were illegal, unlawfully returned and sold, and the auditor general was therefore not authorized to require their payment as a condition of purchase; that if the defendant saw fit to comply with such unlawful requirement and paid them, he did so at his peril and must remit the sum so paid by him, to be eliminated in the computation of the amount he was entitled to receive under the statute. Holding that this claim was not well founded the court, in construing section 84 with related provisions of the tax law, said in part:

“It seems obvious that the legislature intended to sell these State tax lands only upon condition that its pre-existing claim for taxes against the land sold, regular or irregular, valid or invalid, could be closed out at par.”

From the foregoing we are constrained to conclude that plaintiff has shown a compliance with requirements of the tax law establishing legal rights which it is entitled to maintain by this proceeding as the statute authorizes. The rights of these parties are purely statutory, and, as said in Rousseau v. Riihiniemi, supra, “can be neither enlarged nor limited by the court.”

The decree of the trial court is therefore reversed, with costs, and the case remanded for such further proceedings as may be in harmony with this opinion.

Ostrander, C. J., and Bird, Moore, and Stone, JJ., concurred with Steere, J.

Fellows, J. I agree with the result reached by Justice Steere. I do not think the question of the sufficiency of the notice is before us. South Arm Lumber Co. v. Silverthorne, 138 Mich. 465; Lake Erie Land Co. v. Chilinski, 197 Mich. 214.

Brooke, J.

(dissenting). I find myself unable to agree with the conclusion reached by my Brother Steere in this case. The contention is made broadly on behalf of the defendant that the tax deeds were illegally issued by the auditor general of the State for the reason that the city of Detroit, the owner of the premises described in the deeds, is a municipality of the State and therefore a State agency. For this reason the auditor general is without authority to sell the property of the city, devoted by it to municipal purposes, for taxes due the State. The principle involved is stated in 37 Cyc. p. 878, as follows:

“The necessary independence of the Federal and State governments imposes a limitation upon the taxing power of each. Neither can so exercise its own power of taxation as to curtail the rightful powers of the other, or interfere with the free discharge of its constitutional functions, or obstruct, embarrass, or nullify its legitimate operations, of destroy the means or agencies employed by it in the exercise of those powers and functions.” Citing cases in note 42.

Further, 37 Cyc. p. 883:

“Nor, as in the case of public property generally, will the State itself impose taxes upon its own public or governmental agencies or instrumentalities, or those of its municipal corporations, or a municipality tax such agencies or instrumentalities of a State.”

Again, 37 Cyc. p. 876:

“The property of a municipal corporation which is thus exempt from taxation is such as is owned and held by it in its capacity as an integral part of the State government, or which is necessary to enable it to administer those powers of local self-government, or to perform those public functions, which have been intrusted to its care. This will include property held and used for city halls, court houses, jails, public schools, and the like, and engine houses and other property used by the fire department, public ferries, wharves or bridges, public markets, public parks, poorhouses, pauper cemeteries and other property devoted exclusively to public charities, public dispensaries, and generally all such property as is used for legitimate municipal purposes.” Cases cited in note 20.

My Brother holds that the case of Public Schools of City of Iron Mountain v. O’Connor, 143 Mich. 35, controls the case at bar. I am of the contrary opinion. This court has consistently held that education is not a matter of local concern but belongs to the State at large. Board of Education v. City of Detroit, 30 Mich. 505, Attorney General v. Thompson, 168 Mich. 511, and Collins v. City of Detroit, 195 Mich. 330. An examination of the briefs and records in that case will show that the question of the power of the State to sell the property of one of its municipal agencies for taxes was not presented to this court.. In that case the question of the loss of the public school property of the city of Iron Mountain to the school district was not involved. It appears that the case was argued and submitted in this court on February 8, 1906, and was decided on February 13, 1906. Proof of service of the notice to redeem the school property from the tax sale was filed on August 17, 1905, and the redemption period expired six months later, on February 17, 1906. The brief of counsel for the public schools called the attention of the court to necessity of a decision before February 17, 1906, the date of the expiration of the time in which the school property might be redeemed from the tax sale. Four days of the redemption period remained after the case was decided by this court. There was, therefore, before the court no question of the forfeiture of public property involved.

In the stipulation of facts counsel for defendant agree that the redemption notice served on the defendant city was served in conformance with the provisions of the statute, but as a part of the stipulation the notice of redemption is referred to as an exhibit and it seems to me in a case of this kind it should be open to scrutiny. That notice demands from the defendant payment of the taxes for the year 1908 as well as for the year 1907. The city of Detroit became the owner of the property on May 22, 1907, and it was thereafter exempt from all taxation, 1 Comp. Laws 1915, § 4001, subd. 3. The statute requires the redemption notice to contain a description of the property sold for taxes, and the amount paid therefor by the purchaser as well as the year in which the taxes were assessed against the property; 1 Comp. Laws 1915, § 4138. In my opinion, by including in the redemption notice, taxes for the year 1908 when the property was clearly nontaxable, the plaintiff made an illegal exaction against the defendant city. This court has consistently held that the redemption notice be required to inform the owner of the premises of the amount he will be required to pay in order to effect redemption; that it be clear and explicit, and disclose the exact amount legally due to the tax title purchaser, otherwise the notice is held to be invalid. John Duncan Land & Mining Co. v. Rusch, 145 Mich. 1; Teal Lake Iron Mining Co. v. Olds, 178 Mich. 335, and Closser v. McBride, 182 Mich. 594. While this defect in the notice of redemption is, under the authorities, fatal to plaintiff’s contention, if open to review under the stipulation, and I hold it to be so reviewable, the broader and more important question involved is the power of the State to sell for taxes due it property used for municipal purposes by one of its own municipal agencies. This should not be, and I think under the authorities cited may not be, permitted.

The decree should be affirmed.

Kuhn, J., concurred with Brooke, J.