Peninsula Iron Co. v. Township of Crystal Falls

60 Mich. 79 | Mich. | 1886

Campbell, C. J.

On the twenty-eighth day of December, 1883, plaintiff paid to the town treasurer of Crystal Falls, in Marquette county, $790.69, taxes assessed on lands in that township, and filed a written protest against their validity. Within the statutory period, suit was brought to recover them back, under a declaration which, in addition toa special count, included a general count for money had and received.

On the trial, the court held the protest insufficient, as being too vague, and held, further, that while the form of pleading might perhaps be general or special, yet no recovery could be had unless in accordance with the reasons alleged in the protest, and held the protest insufficient.

The protest was “ on the grounds that the lands are unequally and unjustly assessed, and that the township and highway taxes are illegal and unjust.”

The ground of inequality of assessment is the only one which can be called a distinct ground of illegality, and it seems to us insufficient, without some more definite indication of the nature of the inequality. It might include anything, from a supposed mistake of judgment of the assessing officer — which no one could review, if honest — to an inequality obvious on the face of the roll. While, in such matters, no technicality of averment is called for, there should be something to point out the true cause of complaint.

Whether recovery can be had, as at common law, without protest, is a different question, which does not come up here as a general’qnestion, but as one applicable to the facts in the record. The statute under consideration allows a payment under specific protest to be made at any time, but requires an action to be founded on it, and begun speedily: Tax Law 1882, § 42, page 20. But under the -same law, while payments might be made voluntarily at any time in December, to avoid percentage, there was no power in the collector to enforce payment until January, except in the case of personal taxes where there was danger of non-collection. It could not be done for land taxes. The payment in December was not compulsory, but voluntary, and the statute so declares ft: Section 31, page 17, Tax Law 1882. Except for section 42, page 20, Tax Law 1882, which allows any payment to be sued for, if made under protest in proper form, no suit could be brought at all for voluntary payments not made under pressure of process existing and capable of levy. The distinction was pointed out in Louden v. East Saginaw, 41 Mich. 18.

These payments, therefore, could not be recovered back, without compliance with the statute in making a specific, instead of a general protest.

The court below ruled correctly, and the judgment must be affirmed.

The other Justices concurred.