City of Detroit v. George
214 Mich. 664 | Mich. | 1921
This is an action of assumpsit brought by the city of Detroit against the defendant to recover certain personal taxes alleged to have been levied in the years 1912-1916, against defendant on a certain building upon land belonging to the University of Michigan, and leased to the defendant. There was a directed verdict followed by a judgment in favor of the defendant, and the plaintiff has brought the case here for review upon writ of error. The facts in the case were stipulated in writing by the attorneys for the respective parties, and the stipulation was filed
*666 “This suit was brought by the city of Detroit to collect against the defendant certain taxes levied under the following circumstances:
“Prior to November 15, 1911, the University of Michigan became the owner through gift of the Honorable Levi L. Barbour of property on the west side! of Woodward avenue between Canfield and Willis avenues in the city of Detroit, described as lot ‘D’ of the James A. Jones re-subdivision of lots one (1), and two (2) and three (3) of the Ira Davis subdivision of park lot sixty (60), according to the plat thereof as recorded in liber 7 of plats, page 49; and also lot twelve (12) of the subdivision of park lots sixty-one (61) and sixty-two' (62) according to the plat thereof as recorded in liber 1 of plats, page 128, Wayne county registry; this property was located in the second ward in the city of Detroit, and' was vacant, old dwellings which had occupied it having been tom*667 down. With the property in this condition and producing no revenue for the University a lease was entered into between the University of Michigan as lessor and Edwin S. George as lessee, dated November 15, 1911, a copy of which is attached hereto. In determining the amount of rent stipulated therein, both parties took into account the fact that the lessee is required by the terms of said lease to erect a building to cost not less than fifty thousand dollars ($50,000), and that all buildings erected on the premises by the terms of the lease became the property of the University of Michigan; that the clause in the lease obligating lessee to pay all taxes, etc., was placed therein at the instance of the representative of the University of Michigan.
*667 “All the rentals which the University of Michigan has received from this property have been devoted to the expenses and uses of the University of Michigan.
“During the months of February, March, April, May, June and July, 1912, at a cost of nineteen thousand two hundred and four and 26/100 dollars ($19,204.26), Mr. George erected stores upon a portion*668 of said premises, the stores being of steel, concrete and tile construction, and so constructed that they could be amplified, extended and increased as soon as conditions warranted. With the consent of the University, Edwin S. George has sold this lease, still, however, remaining personally liable on all obligations thereunder. Certain of the assignees secured from the University, upon delivering a bond for $150,000 conditioned that the buildings will be replaced, consent of the University to replace such buildings with a building of different type to be used for different purposes, namely, a theatre and café costing upwards of one hundred thousand dollars ($100,000); that the original buildings have been removed from the land and the new theatre building is now in process of construction. These buildings have at all times been insured for the benefit of the University.
*668 “During the spring of 1912, the board of assessors of the city of Detroit indicated an intention to attempt to levy a tax against this property. They were promptly advised by Mr. George and his representatives that both the land and the buildings were the*669 property of the University of Michigan, and were not subject to taxation. Notwithstanding that such notice was given to the said board of assessors, the said board caused to be entered in its field book for the second ward assessment reading as follows:
*669 “ ‘Lot “D”-James A. Jones Sub’n.-$5,000.00.’
“That thereafter the said defendant duly and in accordance with the statute in such case made and. provided and in accordance with the charter of the city of Detroit, presented to the common council and to the board of review, his petition for cancellation of said assessment, a copy whereof is hereto attached; that said defendant and his counsel appeared before the said board of review and presented to the said board the said lease and also presented the law governing the situation as contended for by them; and thereupon the taxing officials of the city of Detroit caused the entry in the said field book to be changed by striking out the figures ‘$5,000’ and) adding to the said entry in such manner that it read as follows:
*670 “ ‘Lot “D”-James A. Jones Subdivision.
"Exempt ......................$5,000.00
[In the above line of the original there was a ruled line drawn through the words and figures.]
“ ‘Owners Names: University of Michigan — Edwin S. George.
“ ‘$5,000.00 building assessed to Edw. S. George, 1st Ward/
“That thereafter the said board of review denied the petition of said defendant and directed an.assessment of a personal tax against Edwin S. George, the defendant herein, to be placed upon the assessment rolls of the first ward in the city of Detroit (in which ward said George resided) and levied taxes against the said defendant personally for the years 1912, 1913, 1914, 1915 and 1916; that each of said taxes was based by the assessing officials upon the claim that said buildings could be assessed against said George as personal property.
“That the said defendant has at ail times asserted that said taxes are illegal and invalid, and has refused to recognize the same as a tax against him, or against said buildings or property, and has refused to pay the same, or any part thereof for any year.
“That if said taxes are a proper charge against the said buildings, said property, or said George, then the amounts thereof would be as follows, the same being computed to September 1, 1920:
Year. Tax. Interest Added. Total.
1912 $99.66 $86.9.4 .$186.60
1913 202.92 155.56 358.48
1914 196.97 130.29 327.26
1915 236.41 131.06 367.47
1916 185.20 83.04 268.24
Total - $1,508.05”
The above stipulation of facts was duly signed by attorneys for the respective parties.
Later there was filed in this court the following additional stipulation of counsel:
“In addition to the facts as heretofore stipulated between the parties, it is further hereby stipulated that from the years 1912 to 1916 the defendant, Edwin S. George, was not a resident of the city of Detroit, but was a resident of Bloomfield township, Oakland county,*672 and that he maintained an office for the transaction of his business in the first ward of the city of Detroit.”
In its charge directing a verdict for the defendant the trial court said:
“It is my opinion that the ownership of the buildings is the main question in this case. It has been held that property held by the Regents of the University of*673 Michigan in their corporate capacity is the public property of the State, held by the corporation in trust for the purposes to which it was devoted, and is exempt from taxation. Auditor General v. Regents, 83 Mich. 467 (10 L. R. A. 376).
*673 “It is expressly stipulated in the lease that the buildings shall belong to the University, and I fail to see any ownership in them in the defendant George. The only- interest that he can possibly have is a leasehold interest. The buildings, both by the express terms of the lease and under the law, are part of the freehold and the property of the University. As such they are exempt from taxation, and it becomes my duty to direct a verdict in favor of the defendant.”
We think that this charge was justified by the record.
It is very plain from the stipulation of facts that the board of assessors first attempted to assess the land itself for $5,000. The board of review abandoned this step by reason of section 4001, 1 Comp. Laws 1915,
“That thereafter the said board of review denied the petition of said defendant and directed an assessment of a personal tax against Edwin S. George, the defendant herein, to be placed upon the assessment rolls of the first ward in the city of Detroit (in which ward said George resided) and levied taxes against the said defendant personally for the years 1912, 1918, 1914, 1915 and 1916; that each of said taxes was based by the assessing officials upon the claim that said buildings could be assessed against said George as personal property.”
It will be noted that neither of said boards attempted to assess a leasehold right or interest. The defendant therefore had no opportunity to meet the question or present the claim as to whether his leasehold interest was lawfully taxable, and, if so, what its value was. It is clear that if the question of á leasehold interest had been presented it would have been competent for the defendant to have presented facts as to the value of the leasehold interest. The valuation, however, was placed upon the building as appears from the field book entry.
It is the claim of counsel for the city that there was here really an assessment of the leasehold interest of the defendant;, and he invokes the aid of the curative statute, section 4098, 1 Comp. Laws 1915, which provides that:
“No tax assessed upon any property * * * shall be held invalid by any court of this State on ac*676 count of any irregularity in any assessment, * * * or on account of the property having been assessed without the name of the owner, or in the name of any person other than the owner, or on account of any other irregularity, informality, or omission, or want of any matter of form or substance in any proceeding that does not prejudice the property rights of the person whose property is taxed.” * * *
In answer to this claim, it may be said that neither of said boards made any attempt to tax any leasehold, and the record is silent upon that subject. It may be said to be an afterthought of counsel.
It should be further said that this matter goes to the jurisdiction of the board's; and it has been invariably held that curative statutes can never cure want of jurisdiction. This court has repeatedly held that the curative provisions of the statute quoted do not relieve against defects which go to the jurisdiction «of the body authorizing the levy. The question here is one of power to act. That the property rights of the defendant are here prejudiced, cannot, we think,
In all of the cases cited by plaintiff’s counsel upon this subject the right property was assessed. Here the defendant was assessed as the owner of this building.
City of Menominee v. Lumber Co., 119 Mich. 201. In that case there was a wrong name, but the right property was assessed of which the defendant had notice.
It must be said that the assessment here was upon the basis of the defendant’s ownership of the build
In Johnson v. Burghorn, 212 Mich. 19, 27, 31, we declined to pass upon the questions of shooting and fishing as not being involved in the case, and as presenting a moot question. For the same reason we .decline to pass upon the question of leasehold interest.
The lease in question appears in the margin.
The judgment of the circuit court is affirmed.