56 Mich. 493 | Mich. | 1885
■ The plaintiff, in the year 1883, was owner of lands in the township of Thompson. The whole assessed, valuation of that township for the year was $478,722, and for the preceding year $346,837. Plaintiff’s land was assessed for 1883 at $52,960, and for 1882 at $38,111. On 'the tax-roll of the township for 1883 a highway tax appeared against the lands of plaintiff of $529.60,' and this, together with 1 per cent, for collection fees, was paid under protest. The protest was in writing, as follows:
“ To B. A. Boot, Esq., Treasurer of the Township of Thompson, in the County of Sehooleraft, in the State of Michigan: The Lake Superior Ship Canal, Railway & Iron Company, simultaneously herewith, pay you the sum of five hundred twenty-nine dollars and sixty cents for the money highway taxes assessed during the year 1883 upon the lands of said company, within said township, described in the schedule hereto annexed (and the further sum of five dollars and thirty cents as your fees thereon). But said company hereby protests against said highway tax and assessment, and makes said payments under protest, for the reason and upon the grounds that said tax and assessment exceed fifty cents upon each one hundred dollars of the valuation of said lands, according to the assessment roll for the last preceding year, and are excessive and illegal.
Lake Superior Ship Canal, Railway & Iron Company.
By A. P. Bonney,
December, 1883. Its Secretary and Treasurer.”
Within thirty days after the payment plaintiff instituted this suit. The declaration is in assumpsit, and contains two counts : one, to recover back tax» moneys illegally exacted, and setting forth specifically the levy of the tax and the grounds of supposed illegality; and one, the common count for money had and received. On the trial plaintiff proved the payment of the tax and the protest. Plaintiff then put in evidence the records of the township meeting for the year 1883, upon which appeared the following in relation to
It was further proved that there were but two highway districts in the township in the year 1883, and that, by the returns of the overseer of such districts, it did not appear that any of the lands of the plaintiff in said township were returned delinquent for any highway tax, whether labor tax or money tax, for that year. Upon this evidence it was contended on the part of the plaintiff that the sum so assessed for highway taxes was wholly illegal; and this contention involves an examination of the statutes which confer the power to levy such taxes.
It will be seen that the two resolutions of the township meeting purport to authorize a half per cent, levy in labor, and a half per cent, levy in money. It is not stated in the resolutions whether the levy is to be estimated upon the assessment of 1882 or upon that of 1883; but the levy actually made, if the sum placed upon the roll embraced only what was supposed to be authorized by these votes, was evidently upon the assessment of 1883, which was considerably larger than that of the preceding year. The plaintiff therefore contends that both levies must be considered as made upon the assessment for 1883.
A question is made whether the votes are sufficient in form for any purpose. The statute (How. Stat. § 1327) empowers the township meeting to determine, “ by a majority of the' electors present and voting,” — -first, upon the amount of highway labor to be" assessed, limited to-J per cent, upon the assessment for the year; and, second, upon the money tax to be assessed, limited to i per cent, upon the assessment for the 'preceding year. The mere statement of a resolve, it is said, is not a sufficient statement that a majority of the electors present and voting had so voted ; but if it were, it would
The records of township meetings must be viewed with some indulgence, for they are made up for the most part by persons without training in the law, and who make no attempt to do more than to express in simple and plain language the township transactions. And when a resolve is entered on such a record as having been adopted, it would be very unreasonable to hold it insufficient because it failed to state in terms that it was adopted on an affirmative vote of a majority of competent voters. The mere statement that “ it was resolved,” necessarily implies that, and is sufficient. But the objection that the second resolve does not in terms refer to the assessment for 1882, has some plausibility. But in this ease the resolve does not stand alone, and, perhaps, as adopted, it may have been perfectly clear in the minds of the electors.
The resolves appear by the record to have followed and been based upon the report of the commissioner of highways. The statute requires the commissioner to make to the township board a report, which is to state, among other things, “ an estimate of the amount of highway labor which, in his judgment, should be assessed upon the taxable property of the township for the next ensuing year, not exceeding one-half day’s labor nor less than one-tenth day’s labor upon each one hundred dollars of valuation for the yearand also “ the improvements necessary to be made in the highways and bridges during the year, and the amount of money tax that should be levied for that purpose beyond what such estimated highway labor will accomplish, not exceeding fifty cents upon each one hundred dollars of valuation according to the assessment roll of the last preceding year.” How. Stat. § 1326. Upon this report it is that the electors vote, but they must keep within the limits of the commissioner’s recommendation.
The report is not in evidence before us, and we have no knowledge of it beyond the reference to it in the recital preceding the resolves. We must suppose it was in due form, and that its recommendations were such as the statute war
The judgment will be so far modified as to- allow of the recovery by the plaintiffs of $75.19, with costs of this Court, but without costs of the court below.