34 Mich. 481 | Mich. | 1876
Eees 'was elected treasurer of Houghton county for the
The general issue was pleaded, and in November, 1875, the cause was tried before a jury.
The plaintiffs were allowed to adduce such evidence as they had in support of each of their claims, and the jury were permitted by the judge to pass upon the facts bearing on the first charge, and they found a verdict for the plaintiffs thereon. So far no question is raised. But he refused to submit the facts c.oncerning the other charges and founded his refusal upon the indefiniteness and insufficiency of the declaration. The plaintiffs being dissatisfied, have sought a revision here. The portion of the declaration which the judge condemned is open to criticism, but as the defendants make the point that there was a fatal gap in the plaintiffs’ evidence, it is best to consider that first, because if well taken it follows as matter of law that they were not entitled to a favorable finding on this part of their case, whether the declaration was good or bad, and hence were not wronged by the judge’s ruling, and have no cause to complain. His exclusion of recovery by declining to submit the facts was no more injurious than a direction to find for the defendants would have been, and if the defendants are correct in their position, such a direction would have been proper. The inaccuracy of the ground of the ruling, if it was so, is
In this, attitude of the case, and considering the question, it is best to refer somewhat liberally to the statutes.
Taxes on real estate are declared to be a lien from the first Monday of December in the year of the assessment.— § 1006, G. L. And in case no extension is given'for collecting, the local collector is required to make returns to the county treasurer on . or before the succeeding first day of February. — § 1003. And if there is any unpaid tax on land the officer has not been able to collect of the owner or occupant, he is required to make a verified statement of the tax so unpaid and due, with a full and perfect description from the roll of the premises charged, and submit the same to the county treasurer, and thereupon the latter is required to compare such statement with the roll; and if found correct, to certify to it and file it with his certificate in his office. At the same time, the county treasurer is commanded to reject and charge back any lands twice assessed, or so erroneously or defectively described that they
On receipt of this verified statement from the collector, the county treasurer is required to enter the same in his official books, and make a correct transcript thereof, of all the descriptions of laud returned as delinquent for unpaid taxes, except such as he shall have rejected, and which transcript, is then required to be compared by the county clerk with the collector’s statement as certified by the county treasurer, and if found true by the clerk, he is to append his certificate that he has so examined and compared it, and found it correct. Such transcript so made, compared and certified, the county treasurer is directed to forward to the auditor general by the first day of March next after the return of the statement, but it is declared to be receivable at any time during said month of March, and when received, the amount is to be credited to the county on the books of the auditor general’s office. — §§ 1033, 1034. The section prescribing the time for sending forward this transcript, and which stands as section 1034 in the compilation, is numbered in the act itself as section sixty-eight. The preceding section, numbered as sixty-seven in the act, regulates the preparation and nature of the transcript.
This return being made to the auditor general, he is given extensive authority to make rejections. , If before sale he discovers that for any reason returned lands should not be sold, it is made his duty to withhold them. — § 1065. If he finds out that the tax has been paid to the township or county treasurer, or that the land was doubly assessed, or so erroneously or defectively described that it cannot be ■ old, or was not subject to taxation at the time of assessment, he is required to reject the claim that the kinds are delinquent. — § 1074. Particular provision is made for those cases where he rejects for the reason that the particular tax exceeded lawful limits. — §§ 1079, 1080, 1081.
In this way analogy would be kept up with the course marked out where there are no extensions, and unnecessary delay, which is especially objectionable in tax proceedings, would be avoided. But collectors may fail to return in season in each class of cases, and thereby prevent the county treasurer from forwarding in the one by the first of March, or in the other promptly after the end of the extension, since, as already stated, he cannot make the transcript until he receives the returns due from the collectors.
It would seem plain, therefore, that in an action to charge the treasurer on his bond with failure of duty in not forwarding to the auditor general lists of delinquent tax lands, it is incumbent on the plaintiffs to show, not merely that returns of such lands were in fact made by the collectors to the treasurer and that no transcripts were received from him by the auditor general up to April first, but at least that the further fact must be shown or appear, that the transcripts were not received by the auditor general up to some certain time within which they ought to have been received in view of the time of actual return by the collectors. So long as it does not appear at what time the collectors made return to the treasurer, it does not appear they were in such time as to require him, or even to enable him, to make and forward transcripts in season to be received on or before April first, and hence the facts do not show him in default.
We may now refer to the facts adduced. The plaintiffs gave evidence that the several township treasurers returned delinquent taxes upon lands to a large amount on account of assessments for the years 1870 and 1871 respectively, and they also gave in evidence certificates made by the deputy auditor general, that he had made diligent search for the transcripts made by the county treasurer for the county of Houghton of descriptions of lands returned to the auditor general’s office as delinquent for unpaid taxes of said years, and was unable to find any as made by said treasurer and received at the auditor general’s office prior to April first, 1871, for the taxes of 1870, and was likewise unable to find any as made by said treasurer and received at said
But it may be said that this omission of express evidence may bo supplied by presumption, and that it should be intended that the township treasurers performed their duty, ancl consequently made their returns in time to enable the county treasurer to make and forward transcripts in season to be received at the auditor general’s office prior to April first. Their duty in regard to the time of making-returns is, as we have seen, not the same in all cases. There may bo extensions even up to the first of April, and, as already stated, the requirement for forwarding lists by the county treasurer in season to be received before April first does not apply where the power to grant extensions is exercised. Passing this, however, we think the case cannot
The case is open to many observations concerning the averments necessary and proper in order to state a cause of action for such a delinquency as is mentioned, and concerning the evidence necessary and the measure of recovery. But there is no occasion to consider such matters now. Before leaving, it may not be amiss to say, that the defendants claimed, and gave evidence tending to show, that there were extensions in several of the townships for each year, and that in some instances they were up to March first. If such was the case, the fact was of some importance in reference to the mode of stating a cause of action, and in reference to the proof to be made.
It only remains to say, that the evidence was entirely wanting in respect to a fact which was essential to a right of action as to this branch of the case, and hence the ruling of the court, whatever view may be taken of the ground of it, was not injurious.
The judgment must be affirmed, with costs.