| Mich. | May 21, 1901
The plaintiff is a corporation organized for the purpose of constructing an hydraulic canal in the city of Sault Ste. Marie, and the defendant is the treasurer
In the year 1896 a special assessment roll was made, to ■cover the cost of a sewer constructed in 1895, and included various parcels of land owned by different persons, none of which were then owned by the plaintiff, or by Mr. Douglas, who afterwards took title to some of them in trust for plaintiff. The greater part of the sum assessed was not paid, and in September, 1897, the common council determined that the roll was invalid for certain reasons, and a new roll was ordered. This was made in 1898, and it was approved by the board of review in December of that year, and placed in the hands of the treasurer for collection. In November, 1899, the roll was returned to the city comptroller, who spread the uncollected sewer tax taken from this special roll upon the general tax roll of the city for the year 1899, acting under section 9 of chapter 21 of the charter (Act No. 374, Local Acts 1889), hereinafter quoted. The sworn statement required by section 9 was not filed with the comptroller.
The plaintiff came into existence as a corporation in 1898. Douglas was its promotor and president, and took title to the lands in question, in trust for the company, •subsequent to the making of the first special assessment roll, but whether before or after its organization does not clearly appear; but all the parcels were formally conveyed by him to the plaintiff on May 29, 1899, upon a nominal consideration. The finding shows that, of the 17 parcels of land, only one was assessed to the plaintiff on the special roll of 1898, though others were assessed to Douglas, its trustee. The plaintiff paid the other taxes, but did not pay these assessments.
The failure of the treasurer to make oath to the state
Plaintiff asserts broadly that this portion of the tax appearing upon the general assessment roll cannot be lawfully collected by the distraint and sale of its personal property, and that, unless voluntarily paid, the only method of collection permitted by law is by a return of the same as delinquent, and sale of the lands. This must depend upon the provisions of the charter. It is undeniable that the charter confers the power of distraining the property of the owner of lands to pay a special assessment upon said lands appearing upon a special assessment roll against him, and this does not' depend upon his having been the owner at the time the improvement was determined upon or made. If it did, the collector would have no means of knowing whether or not the ownership had changed. He would be justified by his warrant in dis-training the property of the person charged with the tax upon his roll. This is also true in case of a reassessment, or when the uncollected assessment is carried upon the general roll. The warrant authorizes the collector to collect the tax, as mentioned in the last column of the general roll, by distress against the property of the apparent owner of the property taxed, as shown by the roll, and unless the law (which he must be presumed to know and understand) applies only to the current tax, and not to items of special assessment brought to and put upon the general roll from an uncollected special roll, he may dis-train for both. Counsel seem to recognize this, and plant their case upon the claim that the charter should be construed as limiting the right to distrain personal property to the period of 60 days under the warrant attached to the special roll, and that the warrant upon the general tax roll gives no such authority as to the special assessments ap.
“Sec. 9. On the first Monday of June and the first Monday of November in each' year, the treasurer shall return to the comptroller any and all special assessment rolls remaining in his hands, the time of returning for which shall have expired, together with a statement on oath of the parcel or parcels upon which the amounts assessed have not been paid.” Act No. 374, Local Acts 1889.
“Sec. 13. Upon the equalizing of the said assessment roll by the board of supervisors of Chippewa county, the comptroller shall proceed to assess the taxes apportioned to the said city according to and in proportion to the valuation entered by the board of review in the assessment roll of the city for the year. * * * He shall further assess and levy in the same roll, in a separate column or columns headed ‘Special Assessments,’ upon the land, property, and persons chargeable therewith, all special assessments returned as delinquent by the city treasurer and remaining unpaid. * * *' The total of all taxes assessed against any one valuation or parcel of property shall be footed up and carried out in the last column on the right-hand side of such roll. All the taxes there assessed shall become at once a debt to the city from the persons to whom they are assessed.” Act No. 346, Local Acts 1891.
The latter section explicitly requires the inclusion of the special assessment in the footing contained in the last column on the right-hand side of the roll, and clearly makes all a debt to the city from the person assessed.. The following section authorizes a levy by distress and sale of the tax assessed, under the warrant, which commands the treasurer to collect the several sums mentioned in the last column of the roll.
We have, then, a case where the treasurer, in obedience to his warrant, has seized property for the collection of the amount remaining due of the aggregate of taxes as shown by the last column of his roll. This the law ex
The judgment is reversed, and a new trial ordered.