Auditor General v. Chandler

Michigan Supreme Court

Auditor General v. Chandler

66 N.W. 482, 108 Mich. 569, 1896 Mich. LEXIS 1030

CourtMichigan Supreme Court

DecidedMarch 11, 1896

StatusPublished

Cited by12 cases

This text of 66 N.W. 482 (Auditor General v. Chandler) is published on Counsel Stack Legal Research, covering Michigan Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Auditor General v. Chandler, 66 N.W. 482, 108 Mich. 569, 1896 Mich. LEXIS 1030 (Mich. 1896).

Pincite

Opinion

Moore, J.

This proceeding is an attempt to collect the taxes, interest, and charges claimed to be due upon the lands of the defendant for the year Í893 and previous years. The auditor general’s petition was filed July 26, 1895. July 27, 1895, the court ordered a hearing on that petition, to be heard September 17, 1895, at the opening of court. September 13, 1895, proof of publication of the order and petition was filed. September 17, 1895, the defendant filed his objections to the taxes, only one of which it is material to consider here. That is, “ The board of review in the township did not hold its sessions at the time or times provided by law, and for that reason defendant was prevented from making his objections to them.” The defendant did not serve any copy of his objections upon the prosecuting attorney prior to September 17th. Subsequent to the 17th of September the defendant was allowed, against the objection of counsel for petitioner, to file a supplemental list of the lands upon which were assessed the taxes he desired to contest. The counsel for the petitioner objected to the court’s hearing the objections of the defendant: First, because he had not served a copy of them on the prosecuting attorney in season; second, because the supplemental list of lands filed by the defendant was filed too late. These objections were overruled, and upon a hearing the trial court held the taxes were improperly levied and were invalid. The record discloses that the township board of review met on the fourth Monday in May, as required by law; that no .one appeared before it; that it then adjourned without day; [571]*571that on Tuesday the defendant appeared at the house of the supervisor, the place where the board of review should have been in session, and learned that it had adjourned. One member of the board lived 2i miles away, and the other 13 miles away. It is claimed the supervisor offered to call the board together the following day, and was told by Mr. Chandler that he had other engagements.

The first important question is, had the court the right to hear defendant’s objections, when he had not served a copy of them upon the prosecuting attorney, as required by the law of 1895 ? The petition of the auditor general was filed, and the order of the court fixing a time for the hearing upon the petition was made, before the law of 1895 took effect. The order recited, as required by Act No. 306, Pub. Acts 1893, “that all'persons interested in such lands, or any part thereof, desiring to contest the lien claimed thereon, * * * shall file with the clerk * * * their objections thereto, on or before the first day of the term.” This was done by the defendant. The law of 1893 did not require a copy of the objections to be served upon the prosecuting attorney. The amendment of 1895 did not provide that it should affect pending proceedings. In the absence of any expression of intent on the part of the legislature to have the amendment affect pending proceedings, we think it would be inequitable and unjust to give the statute that construction. See Clark v. Hall, 19 Mich. 356; Smith v. Auditor General, 20 Mich. 398; Auditor General v. Monroe County Supervisors, 36 Mich. 70. The allowance of the filing of the supplemental list of lands, which simply stated more in detail the objections originally filed, was a discretionary act upon the part of the trial judge, which we will not review, and it was a proper amendment to allow. Auditor General v. Jenkinson, 90 Mich. 526.

The only other question necessary to pass upon is, what is the effect of the failure of the board of review to remain in session as the law required? The statute provides that “said board of review shall meet at the office [572]*572of the supervisor on the fourth Monday in May, at nine o’clock in the forenoon, and continue in session during the day and the day following,” and that its sessions shall continue at least six hours a day. Section 30, Act No. 206, Pub. Acts 1893. The construction of this or a similar provision of the statute is not an unfamiliar proceeding in this court. See Avery v. East Saginaw, 44 Mich. 587; First Nat. Bank v. St. Joseph, 46 Mich. 526; Williams v. Saginaw, 51 Mich. 120; Peninsula I. & L. Co. v. Township of Crystal Falls, 60 Mich. 510. In Township of Caledonia v. Rose, 94 Mich. 216, it was held that—

“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 decree of the court below is affirmed, without costs.

The other Justiqes concurred.

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Moore, J.

This proceeding is an attempt to collect the taxes, interest, and charges claimed to be due upon the lands of the defendant for the year Í893 and previous years. The auditor general’s petition was filed July 26, 1895. July 27, 1895, the court ordered a hearing on that petition, to be heard September 17, 1895, at the opening of court. September 13, 1895, proof of publication of the order and petition was filed. September 17, 1895, the defendant filed his objections to the taxes, only one of which it is material to consider here. That is, “ The board of review in the township did not hold its sessions at the time or times provided by law, and for that reason defendant was prevented from making his objections to them.” The defendant did not serve any copy of his objections upon the prosecuting attorney prior to September 17th. Subsequent to the 17th of September the defendant was allowed, against the objection of counsel for petitioner, to file a supplemental list of the lands upon which were assessed the taxes he desired to contest. The counsel for the petitioner objected to the court’s hearing the objections of the defendant: First, because he had not served a copy of them on the prosecuting attorney in season; second, because the supplemental list of lands filed by the defendant was filed too late. These objections were overruled, and upon a hearing the trial court held the taxes were improperly levied and were invalid. The record discloses that the township board of review met on the fourth Monday in May, as required by law; that no .one appeared before it; that it then adjourned without day; [571]*571that on Tuesday the defendant appeared at the house of the supervisor, the place where the board of review should have been in session, and learned that it had adjourned. One member of the board lived 2i miles away, and the other 13 miles away. It is claimed the supervisor offered to call the board together the following day, and was told by Mr. Chandler that he had other engagements.

The first important question is, had the court the right to hear defendant’s objections, when he had not served a copy of them upon the prosecuting attorney, as required by the law of 1895 ? The petition of the auditor general was filed, and the order of the court fixing a time for the hearing upon the petition was made, before the law of 1895 took effect. The order recited, as required by Act No. 306, Pub. Acts 1893, “that all'persons interested in such lands, or any part thereof, desiring to contest the lien claimed thereon, * * * shall file with the clerk * * * their objections thereto, on or before the first day of the term.” This was done by the defendant. The law of 1893 did not require a copy of the objections to be served upon the prosecuting attorney. The amendment of 1895 did not provide that it should affect pending proceedings. In the absence of any expression of intent on the part of the legislature to have the amendment affect pending proceedings, we think it would be inequitable and unjust to give the statute that construction. See Clark v. Hall, 19 Mich. 356; Smith v. Auditor General, 20 Mich. 398; Auditor General v. Monroe County Supervisors, 36 Mich. 70. The allowance of the filing of the supplemental list of lands, which simply stated more in detail the objections originally filed, was a discretionary act upon the part of the trial judge, which we will not review, and it was a proper amendment to allow. Auditor General v. Jenkinson, 90 Mich. 526.

The only other question necessary to pass upon is, what is the effect of the failure of the board of review to remain in session as the law required? The statute provides that “said board of review shall meet at the office [572]*572of the supervisor on the fourth Monday in May, at nine o’clock in the forenoon, and continue in session during the day and the day following,” and that its sessions shall continue at least six hours a day. Section 30, Act No. 206, Pub. Acts 1893. The construction of this or a similar provision of the statute is not an unfamiliar proceeding in this court. See Avery v. East Saginaw, 44 Mich. 587; First Nat. Bank v. St. Joseph, 46 Mich. 526; Williams v. Saginaw, 51 Mich. 120; Peninsula I. & L. Co. v. Township of Crystal Falls, 60 Mich. 510. In Township of Caledonia v. Rose, 94 Mich. 216, it was held that—

“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 decree of the court below is affirmed, without costs.

The other Justiqes concurred.

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66 N.W. 482, 108 Mich. 569, 1896 Mich. LEXIS 1030, Counsel Stack Legal Research, https://law.counselstack.com/opinion/auditor-general-v-chandler-mich-1896.

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