LeRoy v. East Saginaw City Railway, 18 Mich. 233

LeRoy v. East Saginaw City Railway

18 Mich. 233 | Mich. | 1869

Christiancy J.

This was an action of replevin brought by defendant in error, a corporation organized under chapter 71, compiled laws (to provide for the construction of train railways), and the Acts of 1861 and 1863 amendatory thereof, against the plaintiff in error, who was marshal and collector of taxes of the city of East Saginaw, who had levied upon and taken the property in question under warrants attached to his rolls, to satisfy state and county taxes, as well as certain city and local taxes assessed against the defendants in error.

The affidavit on behalf of the company upon which the writ of replevin issued, was that the property “had not been taken for any tax, assessment or fine levied by virtue of any law of this state, nor seized under any execution or attachment against the goods and chattels of said East Saginaw City Bailway, liable to execution,” &c.

By the act under which the defendant in error was incorporated, the corporation was required to pay annually a specific tax of one half of one per cent, on the whole amount of its capital paid in, which was to be paid to the State Treasurer on the first Monday of July in each year. This specific tax (with which the assessor and collector of taxes had nothing to do, and no power to assess or collect) *238is by the statute declared to be “in lieu of all other taxes upon all the property of said company.”

This is a public law of which all are bound to take notice. We are aware of no law, and have been referred to none, under or by virtue of which, the tax assessed upon this company (and which the defendant below was by his warrant commanded to collect), could have been imposed.

But, it is insisted by the plaintiffs in error that the action of replevin for the property thus taken by him, is forbidden by section four of chapter 152 Compiled Laws.

This section enacts that “N° replevin shall lie for any property taken by virtue of any warrant for the collection of any tax, assessment, or fine, in pursuance of any law of this State.”

The main object of this statute would seem to have been to prevent delays in the collection of the public revenue, and to drive parties claiming property seized for the payment of taxes, &c., to some other remedy, which should not, during the litigation, prevent the prompt collection of the tax.- — People v. Albany, (Com. Pleas,) 7 Wend. 485; O'Reilly v. Good, 42 Barb. 521; Stiles v. Griffith, 3 Yeates, 82.

To construe this provision as intended to apply only to cases in which the taxes — for which the property has been taken — have been imposed by authority of, and in full compliance with the statute authorizing any particular taxes, so as to render it a valid tax, in pursuance of such statute, would be to make the question of the maintenance of the replevin depend in all cases upon the validity of the tax to be determined upon the trial; and this would make the statute forbid only those actions of replevin which must equally have failed without the statute; On the other hand to construe the statute as applying to a case in which there is no statute authority for the assessment and collection of any tax by the officers who may have undertaken to assess or collect one; and where no possible proceeding of such *239officers could have given them authority to impose or collect any tax under any statute of the state (or to a case where the property of some other person than the party taxed, has been seized), would be to extend the statute to cases which do not come within its spirit or intent.

This provision must, therefore, be construed as applying only to cases in which a valid tax might, by legal possibility, have been imposed and collected by regular and proper proceeding under some statute authority. In this latter class of cases this provision would prohibit the action of replevin, though the statute authority might not have been fully complied with, and the proceedings might have been so far irregular, as to defeat a sale of real estate sold for such taxes.

It is urged, however, by the plaintiff in error, that though he may have been bound to know the law, he was not bound to know the facts which did not appear on his rolls or warrants; that these did not show that the party taxed was a corporation, that it might have been a copartnership — a fact to be determined by the assessors; and they having taxed the defendant on the rolls, he was bound to suppose the assessors had determined that the company was not a corporation, but a private association or partnership, and that he, the collector, was therefore protected by his warrants, which were regular on their face, not disclosing the illegality.

But the protection afforded on this ground does not go' far enough to avail the collector in this action of replevin. It goes only to the extent of protecting him from personal responsibility as a trespasser or wrong-doer. It cannot be made the foundation of a right or claim against others, nor confer any right of or to property, which alone is in issue in an action of replevin. This point was expressly decided in Beach v. Botsford, 1 Doug. Mich. 199.

As to the point raised by the plaintiff in error, that no demand for the property having been made before suit, this *240must be treated as an action of replevin in tbe cepit which will only lie where trespass would lie, it is sufficient to say that the action of replevin, under our statute is, in form, always in the d&tinet, whether the taking be wrongful or not; and that, where the taking was wrongful as against the plaintiff, and he establishes his right to the property, his action cannot be defeated by the failure to make a prior demand, such failure not going to the right of action. This was so held by this court in Trudo v. Anderson, 10 Mich. 357, 369, 370.

The judgment of the Circuit Court must be affiimed, with costs. _ ■'

The other Justices concurred.