Auditor General v. Brown , 243 Mich. 192 ( 1928 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] The assessment against defendant, on which the tax in question was spread, included the land and the entire building standing upon it. Defendant did not own the third story of the building, and it should not have been assessed to him. It was the duty of the supervisor "to ascertain the taxable property of his assessing district, and the persons to whom it should be assessed and their residences." 1 Comp. Laws 1915, § 4012. Had he required the defendant to furnish him with the statement provided for in this section, the error complained of would not have appeared upon his assessment roll. Defendant had a right to assume that property which he did not own would not be assessed to him. There was no jurisdiction to do so. Greilick v. City of Traverse City, 231 Mich. 699; Koch v. City of Detroit, 236 Mich. 338. His neglect to appear before the board of review would preclude him from questioning the valuation placed on his property unless he was able to show that it was fraudulent, but did not, in my opinion, prevent him from asking relief in the chancery court on the hearing of the petition from an assessment which mingled that which he did not own with that which he did own. The situation, it seems to me, is no different from what it would have been had two lots been assessed to him in one parcel when he owned but one of them.

The defendant is not, however, relieved thereby from paying the tax on the land and the two stories of the building which he does own. He might have made payment to the treasurer on the part of the property owned by him and permitted the balance to be returned delinquent.

"Any person owning an undivided share or other part or parcel of real property assessed in one description may pay on the part thus owned, by paying an amount having the same relation to the whole tax as the part on which payment is made has to the whole parcel. The person making such payment shall accurately describe the part or share on which he makes payment, and the receipt given, and the record of the receiving officer shall show such description, and by whom paid." 1 Comp. Laws 1915, § 4049.

Not having done so, he might seek relief, as he has done, at the hearing on the auditor general's petition for the sale of the land for taxes. The proceedings at such hearing are specifically pointed out in the statute (§ 4063):

"The taxes specified in the petition shall be presumed to be legal and a decree be made therefor unless the contrary is proved. Evidence shall be taken in open court. All oral testimony shall, at the request of any person interested, be written down and filed. The court may make such orders from time to time as may be necessary to facilitate the proceedings, and shall decide all questions as to the admissibility of evidence, and the decisions so made shall be final and not subject to review or appeal. If the lands of two or more persons have been assessed together, the court may, if practicable, separate the same and apportion to each parcel its just proportion of the taxes, interest and charges."

The tax roll clearly showed that the third story of the building was unlawfully included in the assessment to the defendant. He did not own it, and it should not have been assessed to him. When the attention of the court was called to it, it became his duty to ascertain by oral proof the relative value of the first two stories to the entire building and lot, and to decree a tax against defendant's property based on such valuation.

It would, I think, be dangerous indeed to permit the supervisor to testify that he did not intend to include the third story in the valuation he placed on defendant's property. After he had completed his assessment roll, it was reviewed by a board elected for that purpose. It was the duty of that board —

"to correct all errors * * * in the assessment and valuation of property thereon, and they shall cause to be done whatever else may be necessary to make said roll comply with the provisions of this act" (§ 4023),

— and, when they have done so, to attach thereto the certificate provided for in the statute (§ 4024). It may well be asked, Had the board of review the same intent? The following section (4025) provides:

"Upon the completion of said roll and its indorsement in manner aforesaid, the same shall be conclusively presumed by all courts and tribunals to be valid, and shall not be set aside except for causes hereinafter mentioned."

The "causes" referred to will be found in section 4074:

"In any suit or proceeding to enforce or set aside any tax, such tax shall be held illegal only for one of the following reasons: * * *

"Third, That the person or property assessed was exempt from the taxation in question or was not legally assessed."

Defendant is asking relief in a court of equity. As he made no effort to pay this tax, it will carry with it the interest, charges, and penalties provided for in the statute.

A decree may be here entered affirming that rendered in the court below except as to this description, and remanding the case to the circuit court, in chancery, for further proceedings in conformity herewith. No costs are allowed.

NORTH, FELLOWS, CLARK, and McDONALD, JJ., concurred with SHARPE, J. POTTER, J., did not sit.