185 Mich. 29 | Mich. | 1915
This was an action in assumpsit, brought in justice’s court in the county of Bay, by the plaintiff, to recover the amount of $70.72, taxes assessed upon $5,500 personal estate in said township, by the supervisor against defendant. The tax was not paid and was returned as delinquent to the county treasurer, who issued a warrant to the treasurer of the township for its collection. Defendant pleaded the general issue to the declaration and gave notice of special defenses, the material one of which was, in substance, that the board of review of the township of Hampton did not sit the required time for review of the assessment roll of said township as provided by law, and defendant was given no reasonable opportunity to appear before it and be heard. The case was first tried in justice’s court, then appealed to the circuit court, where a trial was had before a jury. This trial resulted in a verdict against the plaintiff, upon which a judgment was entered in due form, including costs to be taxed. Plaintiff has removed the case to this court for review upon a writ of error asking for a reversal upon errors assigned.
The principal question in the case is whether defendant was given a reasonable opportunity for appearing before the township board of review and objecting to her assessment in question. The facts are that on the last day provided by law in which the board of review is required to be in session for the purpose of reviewing and correcting the assessment roll, defendant’s agent in her behalf went to the town clerk’s office where the sessions of the board were to be held, for the purpose of examining, correcting, and reviewing her said assessment, at 2 o’clock in the afternoon, and found said office securely locked; that
“Sec. 30. Said board of review shall also meet at the office of the supervisor on the second Monday in June at nine o’clock in the forenoon, and continue in session during the day and the day following. Such board shall continue its session at least six hours each day, and at the request of any person whose property is assessed thereon or of his agent, and on sufficient cause being shown, shall correct the assessment as to such property, in such manner as in their judgment shall make the valuation thereof relatively just and equal.”
This section has frequently been before this court for consideration and in all of the decisions where it has been construed the court has held without exception that the property owner is entitled to a hearing before the board of review, and if he is deprived of it, the assessment is invalid.
In Township of Caledonia v. Rose, 94 Mich. 216 (53 N. W. 927), and in Auditor General v. Chandler, 108 Mich. 569 (66 N. W. 482), where the board of review had adjourned at the end of the first day and did not hold any session on the second day, it was held that such action deprived the taxpayer of his hearing under this statute, and in both cases the court said:
“The provision of the statute requiring the board to meet upon the days named is mandatory, and it cannot deprive the taxpayer of his hearing there, and thereby force him to a suit at law to obtain redress. Defendant was entitled to assume that the board would remain in session the full length of time provided by the statute, and to arrange to be present any day he chose.”
The contention of appellant, relying upon the decision of this court in Wright v. Auditor General, 118 Mich. 556 (77 N. W. 11), is that defendant’s agent in the instant case had ample opportunity to attend the
“If from any cause the second meeting of such board of review herein provided for is not held at the time fixed therefor, then and in that case it shall meet on the next Monday .thereafter, and proceed in the same manner and with like powers as if such meeting had been held as hereinbefore provided.”
The legislative intent was, doubtless, to provide for a contingency brought about by a sufficient cause, such as sickness, sudden death, or other serious and unforeseen occurrence. There is no claim in this case that there was any such contingency. In the Wright Case, supra, the doors of the office were not locked. Those who desired their assessments reviewed had access to the office where the meeting was to be held, were informed of the contingency which had occurred on account of which no meeting was held, were given the assessment roll, which was examined by them, and filed lists of their property with the amount of assessment they considered proper and a protest against any higher assessment than such values. Knowing why a meeting was not held these parties made no further attempt to attend a meeting. In the instant case the notice that the board of review would be in session on that day was posted upon the locked door of the clerk’s office. No indication- of any kind was
In the instant case we express no opinion upon the question of the validity of a noon adjournment of two hours, for the reason that the charge of the court upon that question, leaving it a question of fact to the jury whether the board was absent a material length of time beyond the two hours, was as favorable as plaintiff was entitled to. Our conclusion is that defendant, by the absence of the board of review for the length of time and under the circumstances shown by this record, was deprived of her day in court before the tribunal provided by law and to be heard relative to her assessment.
The provision of the statute requiring the board to meet upon the days named is mandatory. There is no claim that this board was prevented from being in
No other questions require consideration.
The judgment of the circuit court is affirmed.