82 Mich. 426 | Mich. | 1890
The defendant company was organized in 1876, under the general railroad laws of the State, and built and operated its road till November 38, 1881, when it sold and conveyed by warranty deed all its property, except bills receivable, to John L. Woods. This sale was made to pay a mortgage indebtedness. January 3, 1883, Woods conveyed the property to C. H. Hackley & Co., who took possession and operated the road until 1883, when they took up and sold the track, and removed portions of the movable property to another road owned by them. The company made its annual reports for each year to and including 1881. Specific taxes were assessed against the company for each year based upon these reports. Such taxes were paid for the years 1877 and 1878, but were not paid for the years 1879, 1880, and 1881. The Auditor General took no steps to enforce the collection of the taxes against the railroad company. At the time of the sale the company was evidently insolvent. After the sale to Hackley & Co., the Auditor General
The Auditor General subsequently brought this suit in equity to enforce the lien, praying that the defendants Hackley and Hume, the then owners of the property, might be declared personally liable; that they be decreed to account for the property received; and, in brief, that a proper decree might be entered to enforced the lien. Defendants Hackley and Hume demurred. The demurrer was overruled, and they then answered. Issue was joined, proofs taken, and decree entered for complainant ordering the defendants to pay the taxes, and, in default thereof, that the property should be sold to pay the amount thereof, the sale to be made in the following order:
1. All the stock of the company.
2. All the real estate.
3. The four locomotives- formerly belonging to the company and now to Hackley and Hume.
4. All such other movable property formerly belonging to the company and subsequently in control of defendants Hackley and Hume as they shall in writing designate.
Defendants Hackley and Hume appeal.
1. Defendants contest the authority of complainant to file the bill. The statute provides that the Auditor General shall examine, adjust, and settle the claims of all persons indebted to the State. How. Stat. § 275. The Legislature passed a resolution in 1881 (Laws of 1881, p.
“William C. Stevens, Auditor General of the State of Michigan, by direction of Moses Taggart, Attorney General of the State of Michigan.”
Aside from these statutory provisions it is the general rule that public officers need not be expressly authorized by statute to bring suit, but that their capacity to sue is commensurate with their public trusts and duties. Supervisor v. Stimson 4 Hill, 136; Overseers v. Overseers, 18 Johns. 407; Todd v. Birdsall, 1 Cow. 260; County Treasurer v. Bunbury, 45 Mich. 84 (7 N. W. Rep. 705). The objection is purely technical, and were it of any force an amendment would be allowed, inasmuch as the bill shows the real party in interest,- and defendants have not been surprised or prejudiced. The Attorney General has fully complied with the above provision of the statute by filing the bill in the name of the Auditor General. That provision does not necessarily mean that he should file the bill in his own name. It is fully satisfied when filed by his direction, and with his name subscribed as the Attorney General of the State.
“An act relative to specific State taxes on plank-road, mining, and other corporations not enumerated in the Revised Statutes of 1846."
The body of the act provides that—
“In all cases when any incorporated company hereafter to be incorporated is made subject to the payment of a specific State tax, this State shall have a lien on all the property of said company, to secure the payment of said tax, which lien shall take precedence of all other liens or incumbrances whatever."
At the time this act (How. Stat. § 1223) was passed, the Constitution contained no provision requiring the object of the act to be expressed in the title, as does the Constitution of 1850. Formerly no titles were prefixed to the legislative acts, and, except as limited by constitutional provisions, the title cannot control the express words in the body of the act. Rogers v. Windoes, 48 Mich. 630 (12 N. W. Rep. 882); Stewart v. Riopelle, Id. 178 (12 N. W. Rep. 36); U. S. v. Palmer, 3 Wheat. 631; Cooley, Const. Lim. 141. The fact that this act has been incorporated in the subsequent revisions and compilations of our laws, dees not render it subject to the constitutional provision of 1850, concerning titles to legislative acts. It follows, therefore, that this act of 1848 included all corporations thereafter to be incorporated. The defendant company was such a corporation, and subject to its provisions.
3. Does the remedy by a suit in chancery exist? The general railroad act of 1873, as amended in 1879, simply imposes the tax, and provides for the lien. It provides
4. Does the law create a lien upon the engines and other rolling stock of the corporation? How. Stat. § 3362, provides that the State shall have a lien upon all railroads and their appurtenances and stock therein, for all taxes which may accrue to the State from the companies owning or operating the same, and that each citizen of the State shall have a lien upon all the personal property of said company for all penalties, etc., which, after said lien of the State, shall take precedence of all other debts, etc. From the phraseology of this section it is clear that the Legislature understood and intended the personal property of the corporation to be included within the description of the property upon which the State had a paramount lien.
5. When did the lien attach, and upon what property? The contention of the defendants is that the lien was a mere floating and general one, and did not attach to any particular property until the commencement of the suit, when the court for the first time, under the statute, had power to sequestrate so much of the property as the court
6. Was the lien of the State lost by the laches of the Auditor General? The statutes provide that, in case any company shall neglect or refuse to pay the tax within 20 days after the same is due, it shall be the duty of the Auditor General to issue his warrant for the levy and collection of the same. How. Stat. §§ 1244-1248. It is
“It would be a violation of principle to hold that a public right shall be lost by the mere delay or neglect of the public agents to enforce it, and in the absence of any law expressly limiting the time in which it may be done.” Cooley, Tax’n (2d ed.), 449; U. S. v. Railway Co., 118 U. S. 125 (6 Sup. Ct. Rep. 1008); Attorney General v. Supervisors, 30 Mich. 392; Oceana Co. v. Supervisor. 48 Id. 320 (12 N. W. Rep. 190).
7. It follows as a natural consequence that the defendants are not in law bona fide purchasers. As well might it be contended that one who purchases real estate without an examination of the records in the office of the register of deeds was a bona fide purchaser as against a prior recorded mortgage. Every one' is presumed to know the law. The statute authorizing the absolute sale of the
8. The defendant company and its assignees were entitled to the use and possession of the property until the proper officers of the State, by some of the methods provided by law, had taken steps to secure the possession thereof for the purpose of enforcing the lien. Those steps must be regarded as having been taken by the commencement of this suit. It is the duty of the defendants Hackley and Hume to produce the property which formerly belonged to the defendant company, and which came to their possession by virtue of the sale, to be sold by the proper officer under the decree of the court to satisfy the liens for the years 1879 and 1880. Failing to do this they will be held liable for the property destroyed or converted by them.
The decree of the" court below will be modified to correspond with the views above expressed. No costs will be allowed to either party.