ROMULUS CITY TREASURER v WAYNE COUNTY DRAIN COMMISSIONER
Docket Nos. 31365, 77-24
86 Mich App 663
Decided November 6, 1978
1978] ROMULUS TREAS V WAYNE DRAIN COMM 663
Submitted December 13, 1977, at Detroit. Leave to appeal applied for.
Defendants’ motion for accelerated judgment was granted as to count II, on the basis that the Tax Tribunal had exclusive jurisdiction over tax refund claims and, in any event, that the claims were barred by the applicable statute of limitations; the motion was denied as to count I, Wayne Circuit Court, John R. Kirwan, J.
The defendants appeal, by leave granted, the denial of their motion for accelerated judgment on count I. The plaintiffs appeal the grant of accelerated judgment on count II. The cases were consolidated for appeal. Held:
1. The trial court correctly ruled that the plaintiffs-treasurers
2. The individual taxpayers must establish extraordinary circumstances indicating the existence of fraudulent conduct on the part of the county drain commissioner in order to maintain their action. If they can prove their allegation of fraud and fraudulent concealment, they would be exempt from the applicable 30-day statute of limitation for commencing an action for refund of taxes paid. Such a determination is a decision of fact which should await a full trial on the merits.
3. It is appropriate that this matter be decided in the circuit court since the Tax Tribunal has not been given general equitable powers.
Affirmed in part and reversed in part.
BRONSON, J., dissented. He would hold:
1. The plaintiffs-treasurers have no standing to seek review of the defendants’ tax assessments.
2. The individual taxpayers are barred from bringing the action because of the running of the 30-day statute of limitations, which applies even though the assessment complained of may have been illegal or void ab initio.
He would reverse as to count I and affirm as to count II.
REFERENCES FOR POINTS IN HEADNOTES
[1]
[2]
[3, 4, 8]
[5]
[7]
OPINION OF THE COURT
1. JUDGMENT—ACCELERATED JUDGMENT—MOTION TO DISMISS—STANDING—COURT RULES.
A defendant‘s motion to dismiss based on a plaintiff‘s lack of standing to bring suit should not be granted where the plaintiff‘s standing to sue is based upon a disputed question of fact; this rule is still applicable when such a dismissal is denominated an accelerated judgment (
2. MUNICIPAL CORPORATIONS—DRAIN TAX ASSESSMENTS—COUNTY DRAIN COMMISSIONER—STANDING TO SUE—EXCEPTIONALLY EXTRAORDINARY CIRCUMSTANCES.
Treasurers of municipalities within a county should not, without a full evidentiary trial, be denied standing to seek relief from drain tax assessments allegedly improperly assessed and levied by the county drain commissioner where the treasurers have alleged “exceptionally extraordinary” circumstances as required by Supreme Court case precedent.
Mere allegations of illegality in the special assessment of taxes for drain construction will not suffice to toll the running of the statute of limitations in actions to recover the assessments paid.
4. TAXATION—SPECIAL ASSESSMENTS—LIMITATION OF ACTIONS—TAXPAYERS’ SUIT—FRAUD—BURDEN OF PROOF—STATUTES.
A taxpayers’ suit against a county drain commissioner, brought for the refund of special assessments after the running of the applicable 30-day limitations period in which the plaintiffs’ complaint alleged fraud and fraudulent concealment, is not barred by the statute of limitations where the plaintiffs can carry their burden of demonstrating fraudulent conduct on the part of the defendant; however, where the plaintiffs fail to show fraud on the part of the defendant, the action should be dismissed as untimely (
5. TAXATION—INJUNCTIVE RELIEF—ASSESSMENTS—TAX TRIBUNAL—EXCLUSIVE JURISDICTION—CIRCUIT COURT—STATUTES.
It is appropriate that actions seeking injunctive relief from tax assessments be decided in circuit court despite the Tax Tribunal‘s purported exclusive jurisdiction over tax matters, because the Tax Tribunal has not been given general equitable powers (
DISSENT BY BRONSON, J.
6. TAXATION—MUNICIPAL CORPORATIONS—MUNICIPAL TREASURERS—STANDING—SPECIAL DRAIN ASSESSMENT—DUTY TO REMIT TAXES COLLECTED—STATUTES.
The treasurers of the municipalities within a county have no standing to seek review of special drain assessment by the county drain commissioner because the treasurers have a statutory duty to remit collected taxes to the county treasurer and have no discretionary authority as to the payment of collected taxes (
7. MANDAMUS—EXTRAORDINARY WRITS—DISCRETION OF COURT.
Mandamus is a discretionary writ and a court, in its discretion, may refuse to enforce a ministerial duty in extraordinary circumstances.
There is a 30-day limitation period for commencing an action to recover drain taxes which have been paid; this limitation period applies even though an assessment complained of may have been illegal or void ab initio (
Harry S. Ellman, for plaintiffs.
Aloysius J. Suchy, Corporation Counsel, and John K. Godre, Assistant Corporation Counsel, for defendant.
Before: N. J. KAUFMAN, P.J., and BRONSON and D. E. HOLBROOK, JJ.
D. E. HOLBROOK, J. Our brother, Judge BRONSON, clearly sets out the facts of the instant case in his dissent. The plaintiffs’ standing to raise their allegations of fraud in the court below must be upheld. It is clear that there is no authority directly on point in this matter and our disagreement with the dissent on this issue is merely a disagreement regarding the extent of irregularity implied in the plaintiffs’ allegations. The dissent is certainly correct when it notes that the treasurers’ statutory duties with regard to the collection of drain assessments are merely ministerial.
The line of cases including The County Treasurer of Berrien v Bunbury, 45 Mich 79; 7 NW 704 (1881), Scholtz v Smith, 119 Mich 634; 78 NW 668 (1899), and Mayor of City of Dearborn v Dearborn Retirement Board of Trustees, 315 Mich 18; 23 NW2d 186 (1946), does suggest that the treasurers’ standing in this case may not be “commensurate
The treasurers-plaintiffs’ complaint basically alleges that defendant Wayne County Drain Commission has fraudulently utilized tax funds which are statutorily earmarked for drain construction work to cover administrative expenses; by statute, such administrative expenses should come from the defendant county‘s general fund.
The plaintiffs-treasurers’ complaint alleged that the work for which the contested taxes were assessed was not performed within the last two years; that the assessments exceeded the statutory maximum and were not proportioned properly; that proper notice was not given; and finally, that the special assessments were not being used to reimburse the Drain Revolving Fund at all, but rather were used to cover administrative expenses. In Drain Commissioner of the County of Huron v Supervisor of the Twp of Chandler, 90 Mich 278,
“[C]annot be invoked to accomplish a confessedly illegal purpose, even though the officer against whom it is invoked is charged with an express duty under the statute.
* * *
“The circumstances must be exceptionally extraordinary which will justify a supervisor in refusing to comply with his statutory duty, but we think the respondents in this case were justified in so doing.”
It is settled law in Michigan that a motion to dismiss should not be granted where the plaintiff‘s standing to sue is based upon a disputed question of fact. Watts Construction Co v Joint Clutch & Gear Service, Inc, 325 Mich 548; 38 NW2d 919 (1949). This continues to be the law under
In the instant case such “exceptionally extraordinary” circumstances as required by the Supreme Court in Huron County Drain Commissioner and Cheboygan County Supervisors are alleged and this Court will not deny the plaintiffs-treasurers’ standing to seek relief, even affirmative relief,
Under
We note that since the Tax Tribunal has not been given general equitable powers, it is appropriate that this matter be decided in circuit court. Despite the Tax Tribunal‘s purported exclusive jurisdiction,
Affirmed in part and reversed in part.
N. J. KAUFMAN, P.J., concurred.
BRONSON, J. (dissenting). Plaintiffs (city and township treasurers and individual taxpayers) filed a two-count complaint in Wayne County Circuit Court on July 2, 1976. Count I, brought by township and city treasurers, sought declaratory and temporary and permanent injunctive relief from 1975 and 1976 special drain assessments. Plaintiffs-treasurers alleged that the defendant, Wayne County Drain Commissioner, was without jurisdiction to levy such taxes for the reasons that (i) the work was not in fact performed within two years prior to the assessments, (ii) the special assessments exceeded $800 per mile, (iii) the special assessments were not in proportion to the original proportions for costs, (iv) no notices of the assessments were given to the taxpayers by the defendant drain commissioner, and (v) the special assessments were not being used to replenish the Drain Revolving Fund for work actually performed but rather were being used to pay the defendant-appellee drain commissioner‘s office‘s administrative expenses, which should legally be paid from the defendant-appellee Wayne County‘s General Fund.1
Count II of the complaint was brought as a class action by the named taxpayers on behalf of all taxpayers living in communities which were as-
Defendants responded by moving for accelerated judgment on four bases. The first ground alleged that this suit was primarily a tax refund suit and that exclusive jurisdiction was vested in the Tax Tribunal.2 The second ground alleged that “the six plaintiff-treasurers who comprise Count I of the complaint possess no legal standing to challenge these drain taxes“. The third ground alleged that the named plaintiffs of the second count had no cause of action “because they are barred by the statute of limitations3 * * * and * * * cannot represent the taxpayers in their communities“. The fourth ground alleged that a class action “is improper, simply because there is no (common) issue of law or fact in this case“.
The trial court granted defendants’ motion as to Count II, holding that the Tax Tribunal had exclusive jurisdiction over tax refund claims and, in any event, that the claims were barred by the applicable statute of limitations.4 The motion as to count I was denied. The trial court held that the treasurers had standing and that the Tax Tribunal did not have exclusive jurisdiction over a suit seeking declaratory and injunctive relief.
Leave to appeal the decision on count I was
Standing of plaintiffs-treasurers to bring count I
The trial court held that plaintiffs in count I had standing to seek declaratory and injunctive relief on the basis of Mayor of City of Dearborn v Dearborn Retirement Board of Trustees, 315 Mich 18; 23 NW2d 186 (1946), and The County Treasurer of Berrien v Bunbury, 45 Mich 79; 7 NW 704 (1881).
The rule in Michigan is that: “‘[A]ll public officers, though not expressly authorized by statute, have a capacity to sue commensurate with their public trusts and duties.‘” Mayor v Dearborn Retirement Board, supra, at 24, quoting Berrien County Treasurer v Bunbury, supra, at 84.
In Mayor v Dearborn Retirement Board, supra, the Mayor of Dearborn, in his official capacity, sought a declaratory judgment as to the validity of an appropriation included in the proposed budget by defendant board. The city council presented a proposed budget including the appropriation. The mayor vetoed that appropriation, but his veto was overridden by council. In response to the mayor‘s suit for declaratory relief, defendant asserted that the mayor was not a proper party to sue for a declaration of rights. The Supreme Court held that the mayor was a proper party, reasoning that as the mayor had the power and the duty under the city charter to approve or reject any item in the annual budget, he was a proper party to seek judicial resolution of the controversy.
The key to that decision seems to have been the discretionary authority of the mayor to approve or reject the contested item coupled with his duty to
In the case at bar, plaintiffs-treasurers have a statutory duty to remit the collected taxes to the county treasurer.
“Within 20 calendar days after the time specified in his warrant, the township treasurer or other collecting officer shall pay to the county treasurer all state and county taxes collected, and within the same time shall make his statement of unpaid taxes upon real and personal property as required in section 55.”5
Plaintiffs-treasurers in count I have no discretionary authority as to the payment of collected taxes, see Berrien County Treasurer v Bunbury, supra. Therefore, Mayor v Dearborn Retirement Board, supra, compels a result opposite to that reached by the trial court. Absent any discretionary authority, the treasurers have no standing to seek review of defendants’ tax assessments.
Plaintiffs rely on cases holding that, in extraordinary circumstances, mandamus will not issue to force a treasurer to comply with his statutory duty to spread an assessment on the tax rolls. See, e.g., Scholtz v Smith, 119 Mich 634; 78 NW 668 (1899), Laubach v O‘Meara, 107 Mich 29; 64 NW 865 (1895), The Board of Supervisors v The Supervisors of the Twp of Mentor, 94 Mich 386; 54 NW 169 (1892). However, these cases do not stand for the proposition that a treasurer has discretionary authority with respect to spreading and collecting taxes. They hold that mandamus is a discretionary writ and that the court, in its discretion, may
It should also be noted that
Maintenance of class action for tax refund in circuit court
In count II of the complaint, two taxpayers who paid assessed taxes sought recovery individually and on behalf of some 60,000 taxpayers. The trial court dismissed count II, holding that the Tax Tribunal has exclusive jurisdiction over property tax refund suits and, in any event, the suits for refunds were untimely, being filed after the 30-day statute of limitations on such suits.6
The trial court did not address the question of certification of the instant class. See Grigg v Michigan National Bank, 72 Mich App 358; 249 NW2d 701 (1976). However, the record discloses that the putative representatives did not bring suit for a refund within the requisite 30-day period. Plaintiffs do not maintain that they or any other member of the “class” can satisfy that requirement. Therefore the trial court‘s dismissal of count II was proper.7
I would affirm as to count II (Docket No. 77-24) and reverse as to count I (Docket No. 31365).