*1 County Myers 13 1965] Auditor. v. Genesee by Souris, J. J. Adams, J., Souris, with concurred from the I dissent Dethmers, (dissenting). stated for the reasons Mr. Justice opinion O’Hara in Williams v. Mr. Justice opinion in the Carr hold 231, and, accordingly Mich Detroit, 364 City of No costs. affirmance. concurred with J., Dethmers, Kelly, J., did not sit. Smith, v. TOWNSHIP CORPORATION MOTORS

CONTINENTAL MUSKEGON. OF the Court. Decision of Property —Assessment—Administrative 1. Taxation —Personal Remedies. protest on Recovery taxes of ad valorem and property owned the United States by Dethmers, Kelly, Black, taxpayer approved, and statutory authority O’Hara, JJ., for the because there was no seq., amended), (CL 211.1 et when made § J., Kavanagh, C. Souris, by M. T. Smith JJ., taxpayer remedies had exhausted administrative where (CL assessment, initio not void ab but excessive recover the 1948, 211.18). § [1, ^[3] ^[4] ^[7] [5] [6] 14 Am Am 51 51 Am Jur Am Am 51 Am Jur, Jur, Jur, Jur, 2d, Appeal References Jur, Taxation Taxation Taxation Costs 36. Taxation § and Error § 667 et 761. § 767 Points seq. § et seq. Headnotes seq. Separate Opinion.

Dethmers, Kelly, Black, O’Hara, JJ. 2. Taxation —Invalid Assessment. assessment, An general made and under color confirmed *2 property act, outright legal tax is invalid want for of it, standing any legal to make purpose has no for whatever, subject directly collaterally and is to attack either (CL 1948, seq., amended). 211.1 et as § Exemptions—Personal Property Assessment—Pay- 3. Same — — Report ment Under Protest — in Gross. Recovery personal an property gen- assessment on under the of property upon eral tax-exempt property by tax act owned the possession paid and the who the of protest, properly under allowed, where at the time of statutory authority assessment imposition there was no the tax, though taxpayer reporting personal the even of property only gross figure furnished officer as to exempt property value property and liable to tax of appear segregate the board review and failed before of property taxable protest nontaxable or otherwise from (CL 1948, the assessment seq., amended). as §211.1 Appeal Taxation—Prop- 4. Reviewable — Questions Error — erty of United States —Administrative Law. Consideration whether or not action taxes as- for refund of by sessed on owned the United States subject violation the Constitution the United States is State provisions considered, administrative is not where refund has been ordered because assessment was unauthorized at the (CL 1948, time it was seq., amended). made 211.1 et § Property Payment 5. Costs —Taxation—Personal — Under Pro- test. No costs are paid allowed in action to recover taxes under personal property, property upon where which taxes were paid exempt (CL 1948, at time 211.1 et § seq., amended). Separate Opinion. J.,

T. M. Kavanagh, C. JJ. Souris, Smith, Property 6. Taxation —Personal —-Assessment. property Personal upon assessments are made the total value by personalty, specific parcel estate, hence, taxable as is real making (CL proper 1948, §211.18; need disclosure 1961, §211.24). CLS Motors Property Assessment. —Excessive 7. Same —Personal exempt personal within the tax- inclusion Erroneous assessment, in an exces- but in a void not result does able mass by procedure as other one, subject the same review sive 1948, 211.18). (CL improper assessment op Exempt Property United —Possession Same —Personal 8. Property. States pro- Taxpayer assessment on who recover amount levied was entitled to test and tax owned in its as was exempt, available administrative exhausted its where it had 211.18). (CL 1948, remedies (Henry L.), Muskegon; Appeal Beers (Calendar No. Submitted November 50,503.) Decided March Docket No. Corporation, a Vir-

Action Continental Township against ginia corporation, Muske- corporate, body gon, re- to obtain a constitutional *3 protest. paid personal under tax of fund County No. 13 and the District Orchard View School parties as defendant. of intervened party plain- of America intervened as United States against corporation Judgment plaintiff de- de- tiff. for intervening township. Defendant fendant appeal. Affirmed. fendants Long, Joseph Riley (Butzel, S Eaman, Gust T. Philip Kennedy, T. Blarcom W. Van Clifford counsel), plaintiff. for II, Zile of Van At- Assistant Oberdorfer, Louis F. Henry torney Kutz, Jaclcson, General, Lee A. I. Department Justice, Bernstein, Robert A. George Hill) Attorney, and H. E. United Attorney, for Boet, David Assistant United States intervening plaintiff America. United- States Mich township. Laniard,

Charles A. for defendant Poppen, intervening Sorensen, for de- Street & fendant school district.

Harry Prosecuting Attorney, Knudsen, in- for county. tervening defendant Street, of Harold M. counsel defendant intervening defendants. day conceded on the tax possession It is was in of cer Continental property belonging

tain personal prop also that such It is conceded States. erty taxable, time force or au not at the Michigan thority law or otherwise. Assessment levy made and thereof—for 1958—was nonetheless procedures of the the forms and confirmed under general property pro act.1 under Plaintiff, (January 1959) the tax levied test, 16, personal property.2 This to recover the suit, February paid, 11, instituted amount judgment for the Trial to the court resulted plaintiff. seq., (Stat Ann 1960 Bev 7.1 CL 211.1 et amended See § § (Stat seq.). levy, Specifically, CLS 211.29 for increased see § 7.29), payment protest, see CL Ann 1960 Bev and for § (Stat 211.53 Ann 1960 Bev 7.97).—Reporter. principally assigned were: Tlie reasons prop- “1. sole and absolute The above referred to is the erty exempt and is from taxation the United States of America Michigan. general under the tax act of the State Michigan general property “2. does not tax act of the State any taxing authority of the State of within the authorize limits assess, against Michigan to or to collect taxes *4 by Motors Cor- Corporation any property not owned Continental for

poration. general property tax act of “3. no under the There is taxes Michigan against or to collect to make an assessment State Corporation from Continental Motors on the claim pos- by owned sessor, the United States of America can be assessed property.” or the of such user Muskegon Continental 17 v. appeal township, the defendant school district, On county pose question: this “May taxpayer, a who in his has day personal property exempt which is personal property liable tax, who furnishes also only gross figure as to the value of the appear to the officerand who fails to before segregate of review and the taxable from board protest otherwise nontaxable portion assessment, recover the of the tax under property?” allocable the nontaxable issue in this case stems from United States City (78 Detroit, v. 355 466 2 474, US Ct L S 424); Township Muskegon, ed 2d States v. United (78 436); 483, 2 L S Ct Corporation 2d US ed De Murray troit v. America, 489, 355US (78 460); S Ct 458 and 2 L 2d 441 and ed particular, Corporation and, Continental Motors Township Muskegon, 365 Mich Con 191. In tinental it was held that in Con possession, exempt tinental’s because owned validly could not States, be assessed general property taxation under the tax act—as that act at stood the time.3 controlling

The Case here. It de- termines that this 1958assessment was unauthorized by. Michigan Being law at the time it was made. thus unauthorized, the assessment was void beginning. an

When assessment made and confirmed under general property color of the tax act is invalid for outright legal authority want of it, to make standing its confirmation have no any legal purpose No whatever. action or in- ment. The fact No 266 ease concerned with a 1959 assessment. Here Continental Motors v. has (OLS 1961, presented any is stressed in 211.14 question Muskegon Township, [Stat view which Ann 1960 Bev subsequently might we arise deal 365 Mich with a effective 7.14]). Act No 266. PA Neither assess *5 375

18 Mich Opinion by Black, possessor or of owner action validate that which can be said to assessed thus pro- place. accordingly Plaintiff the first in invalid rights in the Con- when, as first within its ceeded sued. Case, it and tinental wholly analogous presented is to situation The being original assessment void where, the those cases legal specific that, it has been held de reason, for a proceedings subsequent spite sale decree, taken pursuant general property confirmation party aggrieved by person il or tax act, directly legal may attack it collater assessment point McQuade ally. in of the v. See discussion Board, 235, 244, Mich and re 321 State Land Office Welsch, Mich in Reed v. 358 of the authorities view ques Welsch, Reed v. Here, as in assumptive illegally mis but assessed tion was taken result omission—as general property act. The of the plaintiff’s regardless of the same, must be charged by appellants compliance —of (Woodmere Cemetery v. Association act with said City Springwells, Township De 130 Mich 466; Transportation Co., 140 Mich Mackinaw troit v. Cranage Steamship Township Portsmouth v. 174; Rapid Rep [118 Rail 578]; Am Co., Mich 230 St City way De Schroeder, 190 Mich Co. v. George, citing additional au troit v. 677). at thorities Rapids, Mich Comstock v. Grand quoted by by appellants Justice cited foregoing opposed In Comstock conclusions. plaintiff’s questioned own was of

personal property. held. found and so Both courts rail- of some Such consisted transitorily freight course, were which, road cars Rapids. ruled, out as well Court that such as Grand per- objections, against Mr. Comstock’s validly him in the assessed sonal Opinion by city, findings having first ward of the closed below dis- : during “2d. That all the time aforesaid he owned occupied purposes for business a warehouse near depot, Central Railroad the first ward of city, temporarily said wherein he stored manu- his *6 purpose ship- factured articles ping.” (p 642.) the of convenient

Validity specifically upheld of the assessment was (the following completes for the reason this penultimate paragraph sentence opinion

of the Court’s page paragraph on quoted 646, which Justice Adams has entirety only

in sentence): save as to such may properly “But think we the cars be consid- appurtenant as ered to the business in connection they with which used, were and taxable with the stock in trade.” unnecessary

Our decision it renders to treat an question presented by intervening plain- additional appellee question tiff and United States. Such is: imposed “Is an action for taxes, refund of on property owned the in violation of protest, Federal Constitution and exacted under subject provisions?” to State administrative Judgment affirmed. No costs. and O’Hara, JJ., concurred Dethmers, Kelly,

with J. (concurring affirmance). Adams, I While agree judgment that the in this case af- should be agree I firmed, do not that the assessment void was beginning. January day, from the 1, 1958, On possession Continental Motors owned and had its personal property anof assessed $819,099- value of ,98. possession govern- It also had 375 Mich No disclosure of $2,476,343.02. ment worth. property made authorities. these facts was not file a sworn statement of taxable Plaintiff did required by its (Stat §7.18). Ann CL §211.18 all gross figure, including personal a only furnished that, of the defendants It is the claim property. the behavior of not, intentional Con- whether its own hiding personal tinental had had effect De- taxation for number of years. it that, situation, because of this say fendants all to place for the assessor of the necessary roll on the Grand of Comstock valid Rapids, 54 are made Personal assessments by specific taxable personalty, total value of (Stat 211.24 is real estate. CLS parcel this, the need 7.24). Because Ann 1960 Rev § Erroneously disclosure evident. to make proper within taxable mass exempt property including *7 in merely a in void assessment but does result review the same one, subject by pro- an to excessive assessment. improper cedure as other any to a proper make It was the Continental duty in that its any property If it believed disclosure. rather state, it should so exempt, was the with that of its own property than including was initial The miscue government. no authorities had Continental’s. they did. choice but to proceed stood, so the assess- my In had matters opinion, a one under the ment been valid would have rail- the case, plaintiff’s In that Comstock, supra. the rolls of both on the tax placed road cars were Rapids. the Fifth ward Grand First ward and for a unanimous Cooley, writing Chief Justice said: Court, 1965] ought they that because not follow it does “But ward the as- in the first assessed

not to have been ac- not, Personal void. sessment was prevails system State, in this cording assessable able which specific it assess- enumeration, but is are on descriptions specific mere gross, in question beyond appears surplusage. In this case it plaintiff disputed was assessable that the is not city. the the ward in first for He he had proper there, and an office had a warehouse entirely right and in It was stock trade. in put taxation him the roll for to therefore that no have been and could ward, and there was jurisdiction doing The error in so. want of part any, in- in if there was assessor, ‘goods, part cluding or wares cars of the these taxable in which trade,’ or stock merchandise, in that ward. goods, “If had been made the assessment speci- gross any without wares, cetera, sum, one ques- particulars, no fication of there have been could tion valid, that would have been whatever the assessment plaintiff, in re- and that order to obtain appealed any portion lief from must have thereof, provided by This board of review as statute. must be considered settled Williams v. Saginaw, 51 Mich 120. But the mention of cars separate valuation can make no difference. The that law know, was bound knew, required personal prop- taxed he should be erty city, in the first ward of the he therefore actually had constructive notice of the assessment appealed respect made, and should have part is no justly complain. of it of which he could There analogy between this case and the case of one township who is assessed where has tax- he no able at all, and with whose he assessments *8 is therefore not concerned. The in such jurisdiction, a case would be void for want of while supposing if here, is correct he was Mich merely ward, it was fifth exces- not taxable sive.” appear plaintiff did not before the board of

While so assessment, its failure do review peculiar which fact situation was excusable fixing that the assessment after the board involved time for the taxpayer appear passed. had Con- complain promptly tinental did State should not have been commission assessed ownership of its the United “because stating: specifically of America”, part “The of Gov- assessed consists up a facilities, owned which makes sub- ernment stantial portion of the assessment.” hearing: for a asked entirely “so as to delete therefrom all personal prop- assessments made erty absolutely the title of which in the is States of America.” having pursued

Continental, its administrative precluded seeking remedies, was not other re agree lief. with Justice Black that Continental I Corporation Township Muskegon, controlling judg affirm 191, and vote to ment. M. Kavanagh, T. J., C. JJ., Souris Smith,

concurred with Adams,