Peninsular Savings Bank v. Ward

Hooker, J. The plaintiff is admitted to have been the owner of the government title to the premises in question. The action is ejectment, and the defendants claim under tax deeds for taxes for the several years 1883, 1884, 1885, 1886, 1888, 1889, 1890, 1891, 1892, and 1893. The court directed a verdict for the defendants. Hence, if it be — 89 — found that one of said tax deeds is valid, the judgment should be affirmed. It is conceded that those for the taxes of 1883, 1884, 1888, 1889, and 1890 are void. Two points are raised upon the tax deed for the taxes of 1885, viz.: 1. That the highway tax was excessive. 2. That there was no apportionment of the State tax. The record of the annual township meeting shows the following: “The annual report of the township clerk was then read, and the following amounts were ordered to be spread upon the tax roll for the year 1885; that is to say: One per cent, for general township purposes, one per cent, for highway purposes, one-half per cent, for bridge loan.” The statute then in force (1 How. Stat. § 1326) provided that the commissioner of highways should report to the township board, at the annual meeting, an estimate of the amount of highway labor necessary, and the improvements necessary to be made in the highways and bridges during the year, and the amount of money tax that should be levied therefor, beyond the estimated labor. The statute restricts the labor to one-half day on $100 valuation, and the money tax to 50 cents upon such valuation. Section 1327 provides that a majority of the electors present may determine the amount of labor and money tax, within these bounds. As has been seen, the electors voted a money tax of 1 per cent, for highway purposes. It is — 90 — urged that this was no more than it was within their power to raise, and that one-half of it should be treated as a vote of highway labor, and the remainder a money tax, in which case neither would be excessive. The record shows that the entire amount was spread, and if we might assume that no labor was done or commuted, which is improbable, we should still be confronted by the fact that the vote shows that the electors directed that amount to be spread upon the roll. We cannot conclude, therefore, that any part of it was intended as a vote of highway labor. It is also suggested that we -may assume that a part of the amount spread was a tax authorized by the board of supervisors, under 1 How. Stat. § 483, subd. 15; but we think, in view of the vote of the township, that' the presumption is to the contrary. ' We consider it unnecessary to discuss the question upon the apportionment. The tax of 1886 is attacked upon the ground that $1,000 was raised upon the following resolution: “ Because the board of supervisors passed the following resolution: ‘Resolved, that the sum of $1,000 be raised by tax for the current year, and that this sum be expended upon the State and Territorial roads within,the county, and that each member of this board be made the agent of this board to superintend the expending of the sum of $100 thereof, and to designate the place or places where the same shall be expended, but to place at least 50 per cent, of said amount within the townships represented by them, respectively.’” It is contended that the resolution should have designated the road or roads upon which it was to be expended, and that it was not competent to apportion it out to the several supervisors to expend, according to their judgment. We infer from this resolution that it was the aim of the board to repair the Territorial and State roads. Sections 9 and 11 of article 10 of the Constitution provide: “The board of supervisors of any county may borrow or raise by tax one thousand' dollars for constructing or repairing public buildings, highways, or bridges; but no — 91 — greater sum shall be borrowed or raised by tax for such purpose in any one year, unless authorized by a majority of the electors of such county voting thereon.” “The board of supervisors of each organized county may provide for laying out highways, constructing bridges, and organizing townships, under such restrictions and limitations as shall be prescribed by law.” In Attorney General v. Board of Sup’rs of Bay Co., 34 Mich. 46, it was held that the power of the board, under these provisions, was limited by the statute. 1 How. Stat. chap. 17. Subdivision 7, § 11, of said chapter (compiler’s section 483), authorizes the board to raise money by tax for any of the purposes named in the act, but restricts it to $1,000 per year for the purpose of repairing highways, etc. The restriction does not purport to confer any power, and the power to repair roads must be sought elsewhere. Section 497 authorizes the board to cause to be laid out, established, altered, discontinued, or opened all State and Territorial roads. The three following sections pertain to this power, and it has been held that these four sections limit the powers given by section 11 of article 10 of the Constitution to Territorial and State roads. See People v. Highway Com’rs of Nankin, 15 Mich. 347; Attorney General v. Board of Sup’rs of Bay Co., 34 Mich. 46. So far we find no authority for the expenditure of money by way of repairs upon State or Territorial roads, and our attention is not called to any statute conferring it. The duty of repairing these roads is upon the township. 1 How. Stat. § 1321. In Attorney General v. Board of Sup’rs of Bay Co., supra, it is said: “Taxes and loans, when authorized to be raised by any public body, must be raised under the implied condition that they are to be applied to the public uses under the control or care of that body. They cannot be raised for the purposes or uses of others, unless such a power is plainly given, and such a power cannot be given for all purposes. The highways and roads are put under their control by the Constitution, not absolutely, but under legal restrictions. Those .legal restrictions have confined them to State and Territorial roads. Other roads — 92 — are put under other officers, to avoid a clashing of jurisdictions. The county board can have no occasion to raise money for other than its own roads, and must exercise its own judgment in expending it. ” The law plainly imposes upon townships the burden of repairing these roads, and it does not seem to have ever required or permitted counties to keep them up. They are State roads, not county roads; and the State has not imposed the duty of maintaining them upon counties, though it did allow the counties to construct them. Whether this may now he done at county expense, in view of section 1321, we need not consider. But the power to repair appears to be conceded by counsel, and as we have not the aid of a discussion of this question, and may have overlooked some statute or reason leading to a different conclusion upon this point, we do not decide that the board may not raise money for the repair of such roads. At all events, we are satisfied that the hoard of supervisors had no legal authority to raise this tax for the purpose of repairing, through its own committees or members, State and Territorial roads, thereby invading th8 jurisdiction of highway commissioners and overseers, whose duty it is to keep them in repair. We must therefore hold that the deed for the tax of 1886 was void. The deed for the tax of 1891 is said to be void for several reasons. A discussion of one will suffice. The day set for the hearing of the auditor general’s petition was November 14, 1893, — the second day of term. The decree was made and court adjourned on the loth. This proceeding is governed by the act of 1893. Section 66 of the law provides that— “If, within the first five days after the day fixed in such notice for the hearing of such petition, it shall be made to appear to the court that any person has been prevented from filing objections to any tax, without fault on his part, such further time may be granted for that purpose as may seem proper, not exceeding five days.” Act No. 206, Pub. Acts 1893. — 93 — It is urged that this is but an irregularity; that jurisdiction of the person was acquired by the publication, and that, though the decree might be vacated in a direct proceeding, it cannot be attacked collaterally; and that it is like a judgment entered upon a premature default. Our decisions make a distinction between cases where personal service is obtained, and those of substituted service. In the latter the judgment is void if the statutory requirements are not followed. Thus, in attachment cases it has been held that the premature filing of a declaration, or the want of a valid default, rendered the judgment a nullity. See Steere v. Vanderberg, 67 Mich. 536; Nugent v. Nugent, 70 Mich. 56. We are constrained to say that this avoids the decree as to those who have not appeared, or otherwise waived the right to apply for further time. The deeds for the taxes of 1892 and 1893 are said to be void for the reason that the lands were not subject to sale, inasmuch as it appears upon this record that, at the time the petition was filed, they were held by the State by virtue of a State hid. If that was true, they should not have been included in the petition; but this question cannot be raised collaterally. The decree has determined the contrary. Cole v. Shelp, 98 Mich. 56; Kneeland v. Wood, 117 Mich. 174; Muirhead v. Sands, 111 Mich. 487. The only way to reach such questions is in a direct proceeding, or possibly in equity, under proper circumstances. It follows that the judgment of the circuit court was correct, and it is affirmed. Montgomery, Moore, and Long, JJ., concurred. Grant, C. J., did not sit.