118 Mich. 255 | Mich. | 1898
The petitioner, Joseph Hooker, presented his petition to the court below for a writ of assistance under a tax deed issued to him for delinquent taxes for the year 1892. The court denied the writ. The defendant Estella O. Murgittroyd is the owner of the original title. The validity of the proceedings under which petitioner obtained his deed is attacked for the following reasons:
1. The tax law of 1893 is unconstitutional, in that it permits landowners to be deprived of their property without due process of law.
2. The provision authorizing the issuance of the writ of assistance is void.
3. No demand for the payment of the taxes was made of the person liable to pay them.
4. The property was not assessed to the owner.
5. The collector did not seize and sell personal property to pay the tax.
6. No order pro confesso was ever entered.
7. No decree was made and entered of record in the proper book in the office of the register in chancery.
8. The decree does not contain a description of the property.
9. No certified copy of the decree was annexed to the tax record in the county treasurer’s office.
10. The decree was not enrolled.
11. The decree was not rendered 10 days before the day fixed for the sale.
The first and second objections are disposed of by Ball v. Ridge Copper Co., ante, 7. All the other objections, except the eleventh and ninth, are controlled by former decisions of this court. Muirhead v. Sands, 111 Mich. 487; Auditor General v. Sparrow, 116 Mich. 574; Mersereau v. Miller, 112 Mich. 103; Jenkinson v. Auditor General, 104 Mich. 37; Iron Star Co. v. Wehse, 117
The statute clothes the court of chancery with general jurisdiction over these proceedings. It does not lose jurisdiction by the failure of any officer to perform the acts imposed upon him within the time fixed by the law, unless the taxpayer is deprived of some right, or unless the law, by negative language, prohibits the doing of the act at any other time. It should clearly appear that the act was mandatory; otherwise it will be held directory. If the taxpayer is not injured by the failure of the officer to act within the time prescribed, the failure does not render the decree and sale void. Justice Cooley states the rule as follows:
“The fixing of an exact time for the doing of an act is only directory, where it is not fixed for the purpose of giving the party a hearing, or for any other purpose important to him.” Cooley, Tax’n (2d Ed.), 289.
This rule is supported by Black, Interp. Laws, § 126; End. Interp. Stat. §§ 431, 436; 1 Blackw. Tax Titles, § 468; People v. Doe, 1 Mich. 451; Sibley v. Smith, 2 Mich. 486.
Where a statute required venires for grand jurors to be issued at least 40 days before the second Monday of September, a venire issued in less than 40 days was held valid, it being in season for service by the officer’ State v. Smith, 67 Me. 328.
A similar question was before the Supreme Court of the United States, involving the tax law of the Territory of Arizona, and it was held that the object of these provisions as to time was to secure prompt action, but that the court would not lose jurisdiction to enter a decree by failing
‘ ‘ But, inasmuch as this proceeding is one in a court of general jurisdiction, it would require very precise and prohibitory language in the statute in order to withhold from that court the ordinary functions and powers of such a tribunal, among which is not only the right, but the duty, of giving such full consideration to all questions presented as its judgment determines is necessary. No such prohibitory language is found. The purposes and intention of the act are the collection of taxes, but only of such taxes as ought to be collected, and judicial determination is invoked to determine what taxes are justly due; and that the court takes time for the examination and consideration of this question does not oust it of jurisdiction.” Maish v. Territory of Arizona, 164 U. S. 599.
Moreover, this is one of the defects expressly cured by the statute that “no sale shall be held invalid on account of any irregularity, informality, 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.” Act No. 206, Pub. Acts 1893, § 99.
i As to the ninth objection, if counsel for defendants intended to rely upon it, the should have introduced proofs to establish it. The objection is not argued by either counsel, and is not referred to in the brief of petitioner. It is made in the brief of defendants, without any reference to the record to support it. The record contains the petition of the auditor general, the decree, and report of sale. It shows that the deputy county treasurer was a witness, and that he produced the records from the office of the county treasurer, and that he read on his cross-examination from the decree, or a copy thereof, which must have been attached to the record. We find nothing to indicate that any such point was raised in the court below. It is a fair inference from the record that a copy of the decree was attached. If defendants claimed that it was void, they should have introduced it in evidence and made it a part of the record.
The learned counsel for the defendants severely attacked the officers for their carelessness and neglect of • duty evidenced by the record in this case. It may be conceded that his criticism is deserved. This court has frequently spoken plainly upon this subject. But this does not excuse the taxpayer. This property had been Mr. Bond’s homestead for many years. The title was in his first wife, who died some years ago, leaving one heir, the defendant Estella C. Murgittroyd. The tax was not paid, and it does not appear that any of the parties interested made any attempt to pay it.
The order of the court below will be reversed, and the court directed to issue the writ of assistance. The costs of both courts are awarded petitioner.
