Traverse Beach Ass'n v. Township of Elmwood

142 Mich. 78 | Mich. | 1905

Moore, C. J.

This is an action brought by the plaintiff for taxes assessed against its property for the year 1902. The judge directed a verdict in favor of defendant. The case is brought here by writ of error.

Upon the trial the attorney for the plaintiff made a brief opening statement, in which he claimed the tax was void because of inequality of assessment, and that it was paid under protest. He sought to introduce testimony tending to show that this property was assessed higher than like property in the same township was assessed. This was objected to, because plaintiff made no claim of fraud or bad faith on the part of the assessing officer, and also because plaintiff did not appear before the board of review, and make complaint of the inequality of assessment. This objection was sustained. Plaintiff put in evidence the record of the board of review, which record did not show that any one appeared before the board on the part of the plaintiff to complain of the assessment; counsel for the plaintiff claiming that it was a presumption of law, when the record was silent, that some one did appear and object.

On the part of the defendant, it was shown by the supervisor that the plaintiff did not appear before the board of review. The record of the board of supervisors was introduced, showing the levy of a bridge tax, which it is now claimed was illegal. No evidence was introduced ¿showing that, for the purpose of collecting the tax, a levy was made or threatened, or that it was paid under duress. The only evidence that it was paid under protest which was offered is an indorsement made on the margin of the tax roll, “Paid under protest,” and a statement in the tax receipt, “Paid under protest.” No other protest was •shown to have been made.

Counsel for appellant says that where an assessment is void there is no necessity for appearing before a board of review before suing to recover the taxes paid; citing Woodmere Cemetery Ass’n v. Township of Springwells, 130 Mich. 466. An examination of that case will show it a very different one from the case before us. In that ■case a levy was threatened, and the payment was made under protest, and to prevent a seizure of the property. Upon the hearing before the Supreme Court, no attempt was made to sustain the validity of the tax. The property upon which it was levied was not taxable in the township where the assessment was made. In the case at bar there is no claim, and could be none, that the property was not properly assessable in defendant township. It was not shown upon the trial that the payment of the taxes was involuntary. No such protest .in writing as is provided for in section 3876, 1 Comp. Laws, was shown. We know of no case where, under the facts disclosed by this record, the plaintiff was allowed to sue the township, and recover for the taxes paid by him. As to when the taxpayer must appear before the board of review, see Latham v. Board of Assessors of Detroit, 91 Mich. 509; Michigan Sav. Bank v. City of Detroit, 107 Mich. 246; Hinds v. Township of Belvidere, 107 Mich. 667. As to the effect of making a protest, See Wattles v. City of Lapeer, 40 Mich. 624; Louden v. City of Hast Saginaw, 41 Mich. 18; Aurora Iron Mining Co. v. City of Ironwood, 119 Mich. 325.

Judgment is affirmed.

McAlvay, Montgomery, Ostrander, and: Hooker, JJ., concurred.