Albany & Boston Mining Co. v. Auditor General

Marston, J. Complainants filed their bill to restrain defendants, the Auditor General and county treasurer, from selling certain lands for delinquent taxes. An answer was put in, proofs taken, and the relief prayed for granted. The important facts in this case are as follows: Isaac M. Bhodes was supervisor of the township of Franklin in 1873 and 1874. Instead of making a new assessment roll for 1874 in the usual manner, he took the original assessment roll for 1873, which was in his office, and with a blue pencil made such changes and alterations thereon in valuation and otherwise as he deemed necessary. All such changes were made prior to the third Monday of May, 1874, and the roll of 1873 thus altered in fact constituted the roll for 1874, no changes having been made thereon after the time fixed for a review of the same in May, except to add one name with a tax of personal property. After the time fixed by law for a review of the assessment roll, the supervisor then made a copy of this roll, to which copy he attached his certificate as required by § 991 of the statute, and the copy so made and certified to, stood henceforth as the roll for 1874. The real question, then, in this case is whether a person whose real estate has been assessed in this manner can, for this reason alone, come into a court of equity and enjoin — 393 — perpetually the sale of his lauds for the collection of the taxes so assessed, without paying or offering to pay any part of the same? It must be conceded in the outset that it was highly improper, if not criminal (2 Comp. L., § 7751) for the supervisor to make any changes, alterations or additions in or to the original assessment roll of 1873, required by law to be kept on file in his office. This cannot, however, in my opinion, avail the complainants. They are in no way prejudiced in this case on account thereof. Had the supervisor in the first instance taken the roll for 1873 and made a literal copy thereof, and then adopted the copy so made, with the necessary changes, as in this case, in order to make it an assessment roll for 1874, I do not well see how the complainants could be injuriously affected thereby or claim that an assessment so made would be absolutely void. And yet as to them wherein lies the distinction ? The statute prescribes the method to be adopted by supervisors to procure a complete list of the taxable property within their several townships, and they are required immediately thereafter to proceed and examine the property, and estimate and set down the true value thereof. The statute farther prescribes that on the third Monday in May, and so on the next two following days, the supervisor shall be present at his office, at certain hours, for the purpose of reviewing his assessment, which then consists of descriptions and valuations only, including, of course, names of owners of property described, where necessary, and on the request of any person, his agent or attorney, considering himself aggrieved, on sufficient cause being shown to the satisfaction of the supervisor, he shall alter the assessment as to the valuation thereof, as shall to him appear just and equal. §§ 986, 987. For all the purposes of this review, parties whose property was assessed could at the time fixed obtain as full and accurate information from the assessment roll for 1873, as altered, as they could had a copy of the same been made and then altered, or an entirely new assessment been made without any reference whatever to the roll for 1873. The roll as changed and as exhibited at that time, no longer — 394 — stood as the roll for 1873, for that purpose, and as it then stood it was the roll for 1874, and the fact that it became necessary, after the supervisor had reviewed and completed this roll, for him to make a literal copy thereof, to which his certificate should be attached, and which should after-wards be examined by the board of supervisors, equalized and certified to by their chairman, and which should thereafter be and remain the original roll for 1874, would not, in my opinion, render such roll or the taxes afterwards assessed upon the basis thereof illegal and void. It may frequently become necessary, on account of the imperfect manner in which the assessment is first made, and the changes and corrections made during the review thereof, that a new roll or copy should be made and used thereafter as the original roll, and I should hesitate to hold, where such a necessity existed, in the opinion of the supervisor, and a legible and correct copy thereof had been made and adopted and used thereafter as the assessment roll, that, third parties with no other foundation to stand upon, could, with the aid of a court of equity, escape the payment of their just proportion of the public burthens. It is urged in the brief of counsel in this case that the' abuses to which the course adopted in this case would lead are obvious; that the supervisor could readily alter the-assessment fraudulently after its inspection, and detection .of such alteration would be difficult, and that he might readily forget what assessment he had made and innocently alter it. In so far as any change or alteration in the record; for 1873 is concerned, the abuse is obvious and could not be justified, but as already said, this is not the proper proceeding to punish that abuse, so long as complainants do' not show how it injuriously affected their rights in the-assessment in question. To punish the supervisor for tampering Avith a public record is one thing, but it does not necessarily folloAV that such changed record could not be-made the basis upon which a valid assessment roll could be made out in favor of the State, county and other municipalities. The punishment cannot be extended so far as to deprive them of all rights in a proceeding of this kind» — 395 — The other abuses referred to, even if likely to arise in such a case, may also where no such course has been adopted. Such an argument, however, does not go to the validity of' the tax in this proceeding, especially where no such abuses-are even hinted at in this case. We cannot assume that such an abuse will ever become the practice in this State, or grant the relief prayed for upon the theory that should such a practice be adopted, evils, now imaginary, may hereafter arise. “Sufficient unto the day is the evil thereof.” We need not, however, dispose of this case upon the-grounds already stated. There is, in my opinion, still another clear and distinct ground for refusing the relief prayed for. The complainant does not deny ownership of the property assessed, or allege that the taxes assessed against their property, and the collection of which they are seeking to enjoin, are otherwise illegal, excessive or unjust, or that there would be any thing inequitable in requiring them to pay the full amount thereof as their just proportion of a common public, burthen. They come into this court upon a purely legal objection, one which, even if valid to the full extent claimed, in no way increased the amount of the taxes assessed against their property, or added to their burthens or deprived them of any just right which they otherwise would have had. Having thus placed themselves upon a strictly legal objection, ought they not to have availed themselves of the. remedy which a court of law would have given them, where, if their position is correct, they would have obtained full and complete redress without in any way affecting the rights and interests of the public in -the other assessments, instead of coming into a court of equity for a process which in fact would prevent the payment of taxes by parties who otherwise would have made no complaint? The personal consequences are not the only ones which must be kept in view in this class of eases where a remedy by injunction is sought for to prevent the collection of the tax. “When the illegalities complained of affect only the person complaining, an injunction which restrains the collection as to him may cause no considerable mischief, and may very properly be — 396 — •awarded if a sufficient case is made out; but when they affect the whole tax levy, as they often do, a court should be extremely cautious in awarding, on the complaint of one person, or even of several, a process which may reach the cases of others not complaining, and which may seriously embarrass all the operations of the government depending on the source of revenue which by means of it would be stopped.” Cooley on Taxation, 536. As was said in Eve v. State, 21 Ga., 50, “How could a government calculate with any certainty upon the revenues, if the collection of the taxes was subject to be arrested in every instance in which a tax-payer or tax .collector could make out prima facie a technical case for •arresting such collection? Far better is it * * to let the individual pay to the government what it demands of him, at the time of the demand, as he will be certain of getting it back with interest, after more or less delay, if it was not due.” The principle here contended for has been acted upon in this court upon several occasions, and in my opinion must when applied dispose of this case. Merrill v. Humphrey, 21 Mich., 170] Pillsbury v. Auditor General, 26 Id., 245. A rule was laid down at an early day in this State which has since then substantially been incorporated into our tax laws as follows: “No general or special tax authorized to be raised by the laws of' this State, and which shall be assessed upon any property in any township or ward within the State, shall be held illegal or invalid for want of any matter of form in any matter or thing not affecting the merits of the case, and which shall not prejudice the rights of the party assessed.” 1 Comp. L., § 1129. I think this provision should receive such a construction as would carry out the evident intent of the Legislature, and which would not permit technical omissions, errors or abuses, not affecting the merits of the case, and which did not prejudice the rights of the party assessed, to relieve him from the payment of his just proportion of the public revenue. No injury can result to the individual from such a course, and the public interests- will be better subserved thereby in a more prompt collection of the taxes. I am of opinion that the decree below should be reversed and the bill dismissed with costs of both courts. — 397 — Cooley, C. J. This is a bill to enjoin the collection of a tax. The only ground for relief which is assigned is, that the supervisor did not have his roll ready for review on the third Monday of May as is required by law. It is not pretended that there has been an excessive valuation or any unauthorized levy; but relief is demanded and has been obtained on the sole ground of the irregularity mentioned. So far as I am aware this is the first instance in the judicial history of the State in which equity has interposed to relieve a tax-payer from his burden where inequality or injustice was not pretended, and only a legal objection was-relied upon. Palmer v. Rich, 12 Mich., 414, and Kinyon v. Duchene, 21 Mich., 498, were eases in which there was. no jurisdiction to levy any tax at all. Motz v. Detroit, 18. Mich., 495, was a case in which the statute as to a part, of the levy was defective, because it provided for no apportionment, and therefore in our view provided for no tax. Scofield v. Lansing, 17 Mich., 437, was also one in which the objection went to the jurisdiction to make any levy at all. In Hansconi v. Hinman, 30 Mich., 419, and some other cases sales have been set aside for irregularities, but only on a showing that the complainant had offered to do equity to the tax-purchaser. In Conway v. Waverly, 15 Mich., 257, relief was refused to a tax-payer who asked to have-the collection of his taxes restrained on a showing that a portion of them were illegal, without distinguishing the legal from the illegal. This case was followed in Pillsbury v. The Auditor General, 20 Mich., 245, in which the broad doctrine is insisted upon and enforced that he who demands relief from his taxes has no standing in a court of equity unless he offers to perform what is equitable. If this complainant had shown that its property was. excessively valued, and that the opportunity to be heard on the question of valuation had been lost by failure of the supervisor to comply with the law, the case would have-been different. Nothing of that sort is pretended. We have a right to assume from all that appears in the bill that, nothing has been lost by the irregularity, and that nothing is demanded from complainant but what it should pay. — 398 — 'The relief here is demanded as a strictly legal right; it being assumed that if the legal objection to the tax is valid,an equity necessarily springs from it. I do not think so.’ Even in the case of a tax made excessive with fraudulent intent, we have required the person complaining of it to offer to pay that which was equitable before having relief from the remainder. Merrill v. Humphrey, 24 Mich., 170. And it cannot be pretended that one who is irregularly taxed, but not unfairly, has any greater claims upon a court of equity than one who is taxed both fraudulently and unequally. I agree in the conclusion reached by my brother Maratón. I also agree in what has been many times said by the Supreme Court of Illinois; that equity will not interfere to restrain, the collection of the public revenue for. mere irregularities. Either it should appear that the property is •exempt from taxation, or that the levy is without legal power, or that the persons imposing it were unauthorized, or that they have proceeded frauduléntly. Du Page v. Jenks, 65 Ill., 275, 286, and cases cited; Munson v. Miller, 66 Ill., 380, 383. In the case first named one of the objections to the tax was very similar to that here taken. It was that the assessors had not called on the tax-payer for .a list of his taxable property as was required by law; and it was justly held that this afforded no ground for equitable relief. The same rule was laid down in State Railroad Tax Cases, 92 U. S., 575. And see Cedar Rapids, etc., R. R. Co. v. Carroll Co., 41 Iowa, 153. In Canada it has been held in a well reasoned opinion that a failure to make an assessment by the day prescribed was not fatal, though, the statute in terms required it to be made not later than the day named. Nickle v. Douglas, 35 U. C., Q. B., 126. Graves, J., concurred.