Common Council v. Board of Assessors

16 L.R.A. 59, 91 Mich. 78

• Court: Michigan Supreme Court
• Decided: March 18, 1892
• Status: Published

Opinions

Montgomery, J.

This proceeding brings before us for examination Act No. 200, Laws of 1891, being a revision, of the general tax laws of the State.

It is claimed — First, that this purported statute, as it. appears upon the statute-book, was not duly enacted;, and, second, that the law as promulgated is in parts-unconstitutional.

I. It has been repeatedly held that the Court may-look beyond the engrossed bill to the legislative journals with a view to ascertaining whether the Legislature enacted the statute. This has long been a recognized power of the Court, frequently invoked. People v. Mahaney, 13 Mich. 492; Attorney General v. Joy, 55 Id. 94; Attorney General v. Burch, 84 Id. 408. In many of the-states the courts have denied that this power rests with the judiciary, and have held that the engrossed bill, duly-authenticated, is final, and cannot be impeached. This Court, while adhering to the view that the journals are-open to inspection, has frequently, and particularly in the latter cases, held that every iDtendment is in favor of the due enactment of the statute which has received the executive sanction, and that to overcome this legal presumption the journal must show conclusively that the statute which received the signature of the Governor was not duly passed. Attorney General v. Burch, 84 Mich. 408; Hart v. McElroy, 72 Id. 450, and cases cited.

The history of the present' statute, so far as it is important to be noted, is as follows: On June 29, after the bill had been amended, it was voted “ that the bill be laid on the table, and ordered printed as a supplement in to-day's journal." The bill had the file number 340, and was a substitute for House bill No. 178. A supplement to the House Journal was printed as of the date June 29, with the heading: “File No. 340. House of Representatives. Substitute for Senate Bill No. 178. (Introduced by Mr. Doremus.) Ordered printed for the use of the committee on judiciary. Lansing, June 29, 1891," — . followed by the title. The bill contained 116 sections. On June 30, Mr. Doremus moved that House substitute for Senate bill No. 178 (title No. 340) be taken from the table and placed on its immediate passage, which motion, ■prevailed. The question being on the passage of the bill; the bill was read a third time, and pending the vote on the passage thereof, on motion of Mr. Doremus, the bill was laid on the table. On July 1, Mr. Doremus moved that House substitute bill No. 178 (file No. 340) be taken from the table and put on its immediate passage, which motion prevailed. Numerous amendments were then made to the bill, and after sUch amendments the bill duly passed the House, which was the final action taken by the House on the bill. If it be the fact that the bill as printed was the bill with which the House was dealing on July 1, it is entirely clear that the bill as it passed the House is not the bill engrossed and signed by the Governor, as it appears that the bill as printed contains numerous entire sections which were not eliminated by amendment, but which do not appear in the law as ■Bigned, while the engrossed bill contains numerous provisions which are not contained in the printed bill as it would stand amended by incorporating the amendments made on July 1.

It is claimed, however, that the journal itself furnishes on its face evidence that after the bill in question was printed in the journal the House dealt, not with the printed bill, but with some other instrument, and that it is fairly to be inferred from what appears on the face of the journal that there were errors in the printing of the bill which the House discovered, and which led to the abandonment of the printed copy appearing in the journal. These evidences are as follows:

1. It appears that the House took up the bill by its title and reference as printed in the journal, and before taking action on it laid it on the table, and that, when the bill was again taken up, it was referred to, not as a substitute for Senate bill 178, but as a substitute for House bill 178, which it really was.

2. The amendments offered from time to time do not correspond with the bill as printed. As, for instance, ■one amendment offered ivas by inserting in line 1 of .section 33, after the word “time,” the words “or upon ■any mortgage or other obligation taxed as an interest in lands owned by such person as provided by this act.” Not only does it appear by section 33 as printed that ■the word “time” does not appear in line 1, but it further appears that there is no provision in section 33 to. which the proposed amendment is in any way germane. Without tracing all the instances through, it appears beyond cavil that the amendments could not have been offered with reference to the printed copy.

3. The bill as printed had its sections numbered consecutively, and was not after being printed considered at all in committee of the whole; and yet we find on July 1 the following in the journal:

“Mr. Doremus stated that certain sections of the bill had been stricken out and some added in the committee of the whole, which, with the above amendments, would not leave the sections in consecutive order; and thereupon Mr. Doremus further moved to amend the bill by directing the engrossing and enrolling committee to renumber the sections of the bill so that they should be numbered, as near as may be, by consecutive numbers; which motion prevailed, and the sections of the bill were thereupon accordingly renumbered.”

This action of the House makes it entirely clear, not only that the House was not dealing with the bill as printed in the journal, but also that it was not dealing with an exact copy of the same. It appears, however, that this last-quoted section does not appear in the House Journal as it was printed from day to day; and it is suggested, therefore, that this must be disregarded. But it •does appear in the bound volume published by authority and certified by the clerk of the House. The daily journal, as printed, is subject to amendment. Are we at liberty to infer that this emendation is a forgery? It seems to me that the case of Attorney General v. Burch, 84 Mich. 408, furnishes a decisive answer to this question. In that case the journal as printed from day to day, and as printed in the bound volume, showed the following:

“Mr. Wesselius moved to reconsider the vote by which the Senate passed the bill, which motion prevailed. The •question being on the passage of the bill, on motion of Mr. Wesselius, the bill was ordered returned to the House.”

At the close of the Senate Journal, and preceding the certificate of the secretary, which bore date July 3, 1889,. is a page headed:

“ Errata in the Record of Bills. * * * On page 811,. lines ten and eleven, the vote reconsidered was not the passage of the bill, but the vote by which the Senate concurred in the House amendments to the bill on page 797.”

The Court say:

“ It does not affirmatively appear at what time the secretary made this correction of the record, but it is to be presumed, from the place where the errata is found, that he made it on or before the date of his certificate, July 3,. 1889, as the certificate follows the correction. The Legislature adjourned sine die upon that date; and, as every intendment is to be taken in favor of the correctness of' legislative action, it must also be presumed that the correction was made- before the adjournment of the Senate. If it was done, as we must presume that it was, before-the final adjournment of the Legislature, we must also presume that it was authorized by the Senate, and that the true journal entry of the proceedings is as corrected by the ‘errata.’”

So in the case of the law under consideration. The House adjourned July 3, 1891. The certificate of the clerk bears date July 3, 1891, and as the correction to-the daily journal as originally printed appears before his-certificate, and indeed as of a prior- date, we must presume that it was made before the final adjournment of the Legislature, and we. must also presume that it was-authorized by the house.

In McCulloch v. State, 11 Ind. 424, the court, in speaking of such records, said:

“This journal must be held conclusive evidence of the facts which appear on its face, because it must be presumed that the members as a body inspected it and made all necessary corrections before they allowed it to assume the character of a journal of their proceedings. As well might evidence be received to contradict a statute to show that it contained certain provisions inserted through mistake as to contradict an entry made upon tbe journal. The house keeping the journal is the only tribunal by which it can be corrected, and, until corrected by such authority, it must be considered conclusive as to the facts which it contains.”

In the case of' Turley v. Logan Co., 17 Ill. 151, it was held that the journals must show that the constitutional requirements have been observed; but in that case the journals having been produced, and it appearing from ■the minutes of the clerk that the same legislature had ■corrected their journals at a subsequent session so as to conform to the constitutional requirements, this was held to be sufficient, and the law was sustained.

In Post v. Supervisors, 105 U. S. 670, it was said:

“By virtue of the statute of Illinois of February 12, 1849, the copies of the original daily journals kept by the ■clerks of the two houses, made by persons contracted with or employed for the purpose, as authorized and •directed by that act (though not sworn public officers), in well-bound books furnished by the secretary of state, pursuant to the duty thereby imposed upon him, and afterwards deposited and kept in his office, are official records in his custody, copies of which, certified by him, are admissible, upon settled rules of evidence, as well as by the decision of the supreme court of Illinois in Milter -v. Goodwin, 70 Ill. 659; and neither the competency nor the effect of such copies is impaired by the loss or destruction of the daily journals or minutes.”

In Attorney General v. Rice, 64 Mich. 385, Mr. Justice Morse uses the following language:

“Are these journals kept by the clerk of each house, and read and corrected each day by each body, and duly certified by the proper officers to be correct, to stand as conclusive evidence of their proceedings, or are they liable to be disputed and overthrown by parol testimony, either of individual officers and members, or of strangers, who may be interested in nullifying legislative action? It would seem that there can be but one answer. The legislative record must prevail. Any other' ruling would necessarily lead to dangerous and alarming results.”

Without passing upon the effect of a mere omission of parts of the journal as printed from day to day from the bound journal, I think it is entirely clear that, as such journal is always subject to amendment by the House itself, both on the authority of Attorney General v. Burch, and the other cases above cited, and on principle, we are bound by an amendment appearing in the bound volume.

Some of my brethren are of the opinion that the supplement referred to • cannot be treated as a part of the journal; that, as there is no requirement that bills shall be printed in the journal, the order entered on June 29 for the printing of the bill in question should have been construed as having been made for the convenience of the members, and not with the intent that the bill when printed should become a part of the journal. While not assenting to this view, I think-it is clear that, if it be treated as a part of the journal, yet, for the reasons stated, it is not possible to say that the bill with which the House was dealing was the one printed in the supplement.

Attention has been directed to an unbound portion of the journal, with paging corresponding to that in the bound volume, and it is suggested that this demonstrates that the statement purporting to have been made by Mr. Doi’emus was inserted after the Legislature adjourned. But as well might it he said that the printer’s proof-sheet, before correction, is more authentic than the corrected publication. No such view can be adopted, unless we reverse the usual doctrine in such cases, and start out with the presumption that the clerk of the House has falsified instead of correctly certifying the record. This I am not prepared to do.

II. It is claimed that so much of the statute as provides for the taxation of the mortgage interest in lands, and points out the method of collection, is unconstitutional, for various reasons.

The provisions of the law, so far as necessary to be-noted, are as follows:

“ Section 2. Any real-estate mortgage, deed of trust,, contract, or other obligation, by which a debt is secured, when land within this State is' pledged, * * *' shall, for the purpose of assessment and taxation, be deemed and treated as an interest in the land so pledged.”

Section 17 provides that “the value of the property affected by such mortgage, * * . * less the value of such security, shall be assessed and taxed to the owner of the property, and the value of such security shall be assessed and taxed to the owner thereof.”

Section 15 provides that in making the assessment roll the value of the interest in such real estate represented by a mortgage, deed of trust, or other obligation shall be set opposite the name of the owner, and the-value of the interest of the owner of the fee, less the-value of the mortgage or other interest, shall be set down opposite the names of the owner and occupant.

Section 17 further provides that the taxes so levied shall be a lien upon the property and security, and may be paid by either party to such security. If paid by the mortgagor or holder of the real property, such portion as was assessed to the mortgagee shall be considered and. treated as payment on any interest that may be due, or, if there is no interest due, then as payment of so much of the principal. If paid by the mortgagee or holder of the security, such portion as was assessed to the mortgagor or owner of the fee shall become a lien upon the land, and be added to all other obligations. It is further provided that neither the mortgagee nor the mortgagor shall be at liberty to pay so much of the tax as is assessed against the other until the warrant has been in the h-ands of the collector 30 days; thus affording the party assessed the opportunity himself to pay the tax in the first instance.

1. The first criticism passed upon these provisions is-that the law requires the mortgagor to pay the mortgagee's tax. But it should not be overlooked that the statute contemplates an assessment of the entire interests in the land, both that of the mortgagor and .mortgagee, —by separate assessments, it is true, but still an assessment of the entire interests. It cannot be doubted that it is entirely competent for the Legislature to cause this entire value to be assessed to the mortgagor. This has been the law of Miehigan for many years. This act, then, is in relief of the mortgagor, and it cannot be held to be invalid because it relieves him only on condition that the owner of the mortgage interest shall, within a stated time, pay the tax.

2. It is said that the mortgagor would have no right under the law to appear before the board of review to ask for a correction of the assessment of the mortgage interest. But I do not so read the statute. Section 20 provides that the board, “at the request of any person whose property is assessed, * * * and on sufficient cause being shown, shall correct the assessment as to such property.” The owner of the fee can under this provision be heard as to the amount of both the mortgage interest and his own; for the assessment of the mortgage interest is to be deducted from his own, and, if the mortgage interest- be too small, his own assessment is too large; if the mortgage interest is assessed at too high a figure, his assessment will be too low, and he would have the right to have it increased.

3. It is next suggested that, where the interest of the mortgagee is assessed and remains unpaid, a sale is made of a fee-simple, and the deed conveys -an absolute title; and while it is conceded that it may be competent for the Legislature to provide for the sale of the fee under the assessment of the mortgagee’s interest, yet it is claimed the law is defective in' not pointing out how the two interests sold are to be distinguished, if the mortgagor and mortgagee fail to pay their respective taxes. It is said, if the fee-simple is sold, the mortgagor will lose his land, although he may have paid his own tax. I have already pointed out that the mortgagor will, as under former statutes, be bound to pay the entire tax on the value of the property, subject only to the relief afforded him if the tax assessed against the mortgage interest shall be paid by such mortgagee; and, while I quite agree with respondent’s counsel that the Legislature intended a fee to be sold, I thiuk that the provis'on of section 62, that “no greater interest in [portion of] .any parcel shall be sold than is sufficient to pay the amount of the tax on which the same is sold,” is sufficient protection to both mortgagor and mortgagee. The land is by the provisions of this law, as under the former statute, made subject to the entire tax assessed on its full value. The mortgagor or mortgagee can either prevent a sale by the payment of the tax.

4. It is next claimed that the provision that the mortgagor may pay the tax assessed against the mortgage interest in case of the mortgagee’s default, and deduct the same from the amount owing on the mortgage, impairs the obligation of contracts. But in my judgment this view is not tenable. The contract between the mortgagor and mortgagee remains the same. The mortgagee may and should pay the tax, and if he fails to do so the State appropriates so much of the fund which the mortgage represents — so much of the mortgagee’s estate .in the land — as is necessary to pay the tax. It is true, the State interposes between the mortgagee and the mortgagor, and excuses the latter from making a payment to the former which, by the terms of his contract, he would otherwise be bound to make; but this is not because of any interference with contract relations, or by virtue of any abrogation of the contract rights of the mortgagee. It is because the State has attached or seized so much of the mortgage debt before it has reached the mortgagee. The cases are numerous in which a law providing that agents of a corporation might withhold,, from the party entitled to the same, so much of declared dividends as shall be necessary to satisfy taxes imposed by the state, has been upheld. Cooley, Tax’n, 299, and cases cited. These cases are entirely analogous.

The case of Robertson v. Land Commissioner, 44 Mich. 274, does not conflict with these views. What was held in that case, in effect, was that authorizing the one party to. the contract to refuse performance until evidence-should be produced of -the payment of the tax was in the nature of a penalty, and not a means of collecting the tax directly. But the Court say:

“It must no doubt be admitted that the State may provide modes for collecting its revenues that will seem harsh, unreasonable, and arbitrary. Some such are to be found in the laws of Congress, as well as in the legislation of the states. The judiciary would not venture to indicate limits to the power of the sovereign in this regard, so long as its laws were general and impartial/*'

5. It is further suggested that as, in certain cases, a portion of the principal debt secured by the mortgage is appropriated, it interferes with the contract obligation of" the mortgagor to pay interest upon this sum, and to that extent, at least, is an impairment of the contract. But it is equally true that if the money was paid by the mortgagee in hand, or was seized by the tax collector, he could not thereafter receive interest on the fund. This would be no hardship. If he refuses to pay the tax, the-State appropriates so much of the fund within its control to that purpose. It no more interferes with his contract relation with the mortgagor than would the seizure of personal property in the hands of a bailee by a taxing officer interfere with the contract existing between the bailor and the bailee. In such cases, doubtless, thebailee would be relieved from his agreement to return: the property, just as under this law the mortgagor is relieved from the payment of so much of his debt as is thus appropriated by the State.

6. It is strenuously insisted that the provision which makes the mortgagor liable for the tax assessed against the mortgagee is unconstitutional; and it is said that it is not within the constitutional power of the Legislature to compel one man to pay another man's debt, — a proposition safe enough in itself, but not conclusive as to the right to provide that the mortgagor or occupant of lands shall be liable for the tax on such lands. It is not necessary to go to the length to which the majority of the Court went in Sears v. Cottrell, 5 Mich. 251, in order to sustain this provision. The relation of the owner of the fee to the property is such that the right to assess the whole property to him is undoubted, and to my mind it would be an unsound doctrine, resting upon shadow rather than substance, which would deny the power of the Legislature to relieve him conditionally, on the pretense that by so doing his constitutional rights are being infringed.

7. It is, again, urged that the law is unconstitutional,, in so far as it attempts to tax mortgages owned by nonresidents, for the reason that the mortgage is personal property and a mere security for a debt, and is of that-character of personal property which must be held to-attach to the person, and to have no other situs for any purpose; and the case of State Tax on Foreign-Held Bonds, 15 Wall. 300, is cited in support of this contention. It is further said in support of that position that in Michigan a mortgage is a mere incident to the debt, and conveys no title to the land. Caruthers v. Humphrey, 12 Mich. 270; Ladue v. Railroad Co., 13 Id. 380; Wagar v. Stone, 36 Id. 364. And it is urged that, as this is so, the taxation of such mortgage interest amounts to a taxation of the debt, and brings the case within the case of State Tax on Foreign-Held Bonds. But while it is true that the mortgage is a mere security for the debt, yet it conveys a qualified property in the land; while it is not an estate which •entitles the mortgagee to possession before foreclosure, it is nevertheless, an estate or interest in lands, which is protected by our registration laws as fully as any other title or interest. It is held that the mortgage interest .so far partakes of the character of real property as to require administration in the state of its location, and that neither a foreign administrator nor his assignee can maintain an action to foreclose a mortgage in the state where the mortgaged property is situated. Cutter v. Davenport, 1 Pick. 81; Dial v. Cary, 14 S. C. 573; and the opinion of Cooley, J., in Reynolds v. McMullen, 55 Mich. 568. It has also been .held that the legislature may select as the situs of the taxation of mortgages •either the political division where the owner resides, or that in which the mortgaged premises are situated. State v. Runyon, 41 N. J. Law, 105; Mumford v. Sewall, 11 Or. 70 (4 Pac. Rep. 586). See, also, Insurance Co. v. Com., 137 Mass. 81; Bank v. Boston, 101 Id. 575.

The case of State Tax on Foreign-Held Bonds is apparently in conflict with these cases. The doctrine of that case was announced by a bare majority of the court, and ■ought not to be treated as binding authority, except as to the precise questions before the court. The law which the court had under consideration provided that—

“ The president, treasurer, or cashier of every company, except banks or savings institutions, incorporated under the laws of this commonwealth, doing business in this state, which pays interest to its bondholders or other •creditors, shall, before the payment of the same, retain from said bondholders or creditors a tax of five per •centum upon every dollar of interest paid as aforesaid.”

In the opinion of the majority of the court, Mr. Justice Field states the question before the court as-follows:

“The question presented in this case for our determination is whether the eleventh section of the act of Pennsylvania of May, 1868, so far as it applies to the interest on bonds of the railroad company made and payable out of the state, issued to and held by non-residents of the state, citizens of other states, is a valid and constitutional exercise of the taxing power of the state, or whether it is an interference, under the name of a tax, with the obligation of the contracts between the nonresident bondholders and the corporation.”

It will be seen that the court was not dealing with a-statute which in terms imposed a tax upon a mortgage interest in lands. This statute was a clear attempt to-tax credits distinctively as such, and applied alike to bonds secured by mortgages, and to those which were not so secured. In that respect it is distinguishable from the statute of Michigan, as our statute, in all its provisions relating to the subject, imposes a tax upon an interest in real estate as such. It seems to me that the-case is not given any added force as authority here by the fact that the particular bonds in question were secured by mortgage, for the attempt was not to tax the-mortgage interest in lands, but to impose a tax upon the-bond itself, which the court held to have a situs at the domicile of its owner.

So in Latrobe v. Baltimore, 19 Md. 20, it was held that the situs of the mortgage was the domicile of the-owner, and that such owner could not be taxed where the property covered by it was located. But in the opinion it is said:

“We are not aware that the acts of the assembly regulating the imposition and collection of taxes have effected any modification of the rules of law which otherwise must govern the determination of this question.”

So it will be seen that the question of the power of the legislature to fix the situs for the purpose of taxation at the place of the location of the property mortgaged is not touched upon. We think it was competent for the Legislature to treat real-estate mortgages as an interest in lands for the purpose of taxation, and that, even though held by non-residents, they may be given a situs in the place where the mortgaged property is situated. This the act in question purports to do, and should bte sustained.

8. The question is presented whether the mortgages held by savings banks and insurance companies are to be treated as real estate, and deducted from the amount of ■capital stock, or whether the tax on mortgages is over and above the tax on capital.

The law provides for the assessment as personal property •of “all shares in banks organized in this State under any law of this State or of the United States at their •cash value, after deducting the value of the real estate taxed to the banks.” As to insurance companies, it is provided that, “in computing the taxable property of insurance companies organized under the laws of this •State, the value of the real property on which a company pays taxes shall be deducted from its net assets above liabilities,” as ascertained at the last report.

I think the intent is clear to treat mortgages as real estate, and that the interest in real estate so taxed to banks and insurance companies may be deducted from the shares of stock as assessed. See Insurance Co. v. Com., 137 Mass. 80. It is said that the amount of mortgages held by savings banks in many cases greatly exceeds the capital stock, so, if the amount for which such mortgages are assessed is deducted, there will be no tax •on their shares; and this state of things is urged as a reason why the Legislature could not have intended to tax mortgages held by these institutions. But, on the ■other hand, it must have been known to the Legislature that the exemption of the mortgages held by such corporations from the burdbns imposed upon like securities in the hands of individuals would give to such banks a practical monopoly of the business of loaning money on mortgages in this State. This is a result so manifestly unjust that it would not be inferred unless such a construction of the statute is made necessary by its plain provisions. This, I think, is not the case here.

It is also contended that, if the statute be construed so as to admit of taxation of mortgages of savings banks as real property, the result is double taxation in many cases, inasmuch as the mortgages represent deposits, and the depositors are required to pay a tax. I do not think -this amounts to double taxation, in any objectionable sense. If the banks hold property subject to taxation in ■excess of their actual capital, the case is no harder for them than it is in the case of any individual taxed for the value of the property owned by him, though he may ■at the time be indebted to the amount of nearly or quite its full value. In Cooley on Taxation (page 160) it is said:

“Now, whether there is injustice in the taxation in ■every instance in which it can be shown that an individual who has been directly taxed his due proportion is .also compelled indirectly to contribute, is a question we have no occasion to discuss. It is sufficient for our purposes to show that the decisions are nearly, if not •quite, unanimous in holding that taxation is not invalid because of any such unequal results. It cannot be too • distinctly borne in mind that any possible system of tax legislation must inevitably produce unequal and unjust results in individual instances; and, if inequality in result must defeat the general law, then taxation becomes impossible, and governments must fall back upon -arbi■trary exactions/'’

It is not within the power of this Court, as I understand it* to declare that the Legislature* in enacting a statute* has exceeded its constitutional authority* except in a case where it clearly appears, by a comparison of the terms of the statute with the Constitution itself* that some provision of the fundamental law has been violated. I do not assert that the Court may not construe the Constitution as well as the statute* or that we may not hold that what is by clear implication inhibited is beyond legislative power; but in my opinion this fixes the extreme limit of judicial control over the legislative-department. The pernicious notion that courts may scrutinize legislation with a view to ascertaining how far it accords with some uncertain* shadowy spirit of our institutions, when such spirit is not expressed in our Constitution* cannot be too early or too definitely or too absolutely denied. Robinson v. The Red Jacket, 1 Mich. 171; Green v. Graves, 1 Doug. 351; People v. Mahaney, 13 Mich. 481; Attorney General v. Preston, 56 Id. 177; opinion of Cooley, C. J., in Slate Tax Law Cases, 54 Id. 446.

9. It is suggested that, where lands covered by mortgage lie in two or more taxing districts* it will be impossible to properly apportion the tax. I do not consider that there will in many cases be such difficulty. The mortgage being treated as an interest in lands, the proportion which is properly taxable in each district will be that proportion which the land lying in such district bears to the whole; and, when the taxing officer can inform himself as to these values* there is no reason why he cannot properly make the assessment. There may be instances where this will not be possible* but it is a difficulty which will not often occur. There must be, are, and always will be difficulties in the way of taxing all the property that ought to bear the burdens of taxation; but this cannot obstruct taxation altogether, or even taxation upon any species of property. And this defect, where it exists, is not beyond remedy by subsequent legislation; and the difficulties under the present law will, be found insurmountable only in a few extreme cases. In my opinion, such a defect ought not to invalidate the whole scheme involved in the provisions relating to taxing mortgages. Attorney General v. Detroit, 29 Mich. 108; Robison v. Miner, 68 Id. 549.

10. The question has been suggested as to whether the statute is to be so construed as to relieve mortgagors from the obligation of paying the tax in cases where there were agreements on their part to do so, in force at the time when the law took effect; and also as to whether it is competent for the mortgagor to engage to pay the taxes which may be assessed against the mortgagee’s interest in the lands, in addition to paying the full legal rate of interest allowed by statute. The first question would of necessity depend upon the terms of the contract; but it is clear, both on reason and authority, that, if the engagement of the mortgagor is sufficiently broad to cover any assessment which may be made on all interests in the land mortgaged, his undertaking is in no way interfered with or abridged by the present statute. Hammond v. Lovell, 136 Mass. 185. Nor is there any obstacle, either in Act 200 or in the usury law (Act No. 156), to an agreement by the mortgagor to pay all taxes which may in the future be assessed against all interests in real property owned by such mortgagor, including the interest granted to the mortgagee. Such an agreement does not amount to a reservation of interest, but is in the nature of an agreement to preserve the estate which constitutes the security, and is no more unlawful than an agreement to keep the property insured with a similar purpose. See Banks v. McClellan, 24 Md. That it was not the purpose of the Legislature to limit the power of parties to contract as they may choose in this regard is made clear by the fact that a clause of the tax law, as originally drafted, prohibiting such contracts, was struck out by amendment before its final passage.

I thing the mandamus should issue as prayed, commanding the board of assessors—

1. To assess the value of any land contract to the owner of such security as real estate.

2. To assess as real estate, to the owner thereof, the value of any real-estate mortgage executed either before or after the law of 1891 took effect, and whether held by residents or non-residents of this State.

3. To assess to savings banks or insurance companies, as real estate,, the value of any real-estate mortgages owned by such banks or insurance companies, and to deduct the value of all real-estate mortgages owned by any-savings banks or insurance companies from the value of the capital stock of such banks as determined for assessment purposes.

McGrath, J., concurred with Montgomery, 3.

Morse, C. J.

There is no better settled rule of law in this State than that, in the investigation of a question whether a law has been properly and constitutionally passed by the Legislature, every presumption and intendment are strongly in favor of its due enactment; and if the journals are resorted to, the law can only fail where it conclusively appears from such journals that constitutional methods were lacking in its passage.

In the law before us, we have:

First. The law published in the Public Acts, which are made presumptive proof that the laws therein contained were duly enacted, and which are received as such without further evidence of their authenticity than they bear upon their face.

Second. We find in the office of the Secretary of State, where it is provided it shall be kept, the duly enrolled and engrossed manuscript act, signed by the speaker of the House, the president of the Senate, and the Governor. This engrossed act agrees entirely with the published law. Here we have, again, another strong presumption in support of the proper passage of the act, which we thus find enrolled and certified by the proper officers.

Third. We now. go to the journals of both houses, published by authority of law and certified to be correct by the proper officers, and the only journals that the Constitution or laws prescribe shall be kept and preserved as journals of the Legislature, and find nothing in such official journals militating against the proper and constitutional passage of the act in question. These journals are also presumed to be correct, and it is doubtful if they could be overthrown by parol proof.

Fourth. This bill was read section by section, at length, just before its passage. It is to be presumed that the Legislature knew what was being voted upon.

Fifth. It was reported to the House as correctly enrolled and engrossed, and the presumption is that it was.

Sixth. Fortunately, although not required by law to be preserved, the original bill itself, as passed, with its erasures, amendments, and riders, is found in the office of the Secretary of State, and upon examination is found to be identically the same as the published law.

This bill could not be resorted to in order, by its discrepancies, if any there were, to defeat the law, yet it establishes the fact that there is no difference between the law as published and the act as passed. I refer to •it simply to show how easily, by reasoning from false premises and using all presumptions against the validity of the act, it .is apparently conclusively shown that a falsehood is the truth. For instance, in this case, assuming that the so-called “supplement” presented to us-upon the last argument is a part of the journal, and further assuming that the bill was correctly printed therein as of the condition it was in when the motion to print the supplement was carried, and then, again, assuming that this bill as printed in such supplement was the bill thereafter acted upon, amended, and passed by the two houses, it is made conclusively to appear that the law as published is not the act passed by the Legislature, but a radically different one; having, as shown by the opinion of Mr. Justice McGrath, 13 sections not found in the supplement, nor put there by subsequent amendment, and the supplement having 8 sections not found in the law, nor eliminated from said supplement by amendment. Yet the bill in the Secretary's office, the one handled and preserved by the clerk of the House, and to which all amendments were attached in its progress, is the identical law as published; and the only suspicion resting upon it is that one clause erased therein has written upon its margin the words, “ Richardson says this is stricken.” When this writing was done does not appear, but the presumption must be that it was done before the passage of the act. The trouble-with the argument against the constitutionality of the passage of this act is' that it abounds in presumptions against the regularity of the proceedings, when the law holds that all presumptions must be strongly the other way. Without these false presumptions, there is no standing for an argument against the validity of the nassasre of this law.

1. This supplement has no place in the journals except by false presumptions. It was not made a part of the journals by those authorized to publish and certify to their correctness. It must be presumed that the journals were corrected and approved, as certified by the clerk of the House and secretary of the Senate, before the Legislature adjourned, and the certificates attached to the same on the last day of the session, as shown by such certificates. Attorney General v. Burch, 84 Mich. 408. This supplement is not the only one ordered published by the House. There were two others, to wit:

Senate substitute bill No. 64 (file No. 464), the general election law. “On motion of Mr. Diekema the bill was ordered printed as a supplement to to-day's journal.'' House Jour. 2143.

And House bill No. 538 (file No. 269) charter of the city of Detroit. “The bill was then ordered printed as a supplement to the journal, referred to the committee of the whole, and placed on the general order.” House Jour. 2031.

Neither of these supplements is found in the published volumes of the House Journals. This effectually disposes of the claim that the supplement of June 29 was left out of the published journals for fraudulent purposes, and also establishes the fact that, under legislative practice, these supplements are not considered as parts of the journal, but that they are the mere printing of bills for the convenience of the members, and can be no more used to stultify or contradict the journals than can any other printed copy of a bill laid upon the desks of members, and used by them for reference during the session. The natural as well as the legal presumption is that these supplements were printed, as other bills are printed, for the convenience and use of the members, and that it was not the intention of the Legislature to make them a part of the journals. This natural and legal presumption accords with the fact as to legislative practice, as shown above; and any presumption to the-contrary is not only a forced and illegal one, but contrary to the truth, as shown by the custom of the Legislature since the Constitution of 1850. No such things as a supplement to the journal has ever yet found its way into the legislative journals, and probably never will* unless inserted by this Court. To enforce the argument against the law, this legal and natural presumption is disregarded, and the custom of the Legislature ignored, in order to declare this supplement a part of the journal;, and the clerk of the House is also presumed to have disregarded his duty, and committed a fraud or grave mistake, in leaving it out of the corrected and printed journals. Other presumptions are also necessary, to wit,, that the supplement presented to us is the supplement ordered printed June 29, with the further presumption, that it was laid upon the desks of the members of the House the next morning, and with still another presumption, that it was correctly printed. Every step taken in the argument must necessarily be based upon presumptions, which are unlawful under our previous holdings* There is no law providing that the Secretary of State shall file or keep copies of the daily journals, as they are published from day to day, in his office, and none are kept there. The law provides only for printed and bound volumes to be preserved. How. Stat. § 15. The-supplement presented to us was found in the files of legislative journals kept by one Frank A. Potter, chief clerk in the office of the Secretary of State. It also appears that no files of the legislative journals have heretofore been kept in said office for all these years, and that there are no files there at the present time, except such as are the personal property of clerks in the office. It is also shown by a resolution of the Legislature that. copies of tbe daily journal were mailed and distributed to the people entitled to them, outside of the Legislature, directly from the State printer, and that such copies were never before either house of the Legislature. This supplement found in Potter's file had no place even in that file with the journal of the 29th, but was found at the end of the legislative daily journals with other supplements and miscellaneous documents.

If this supplement can be used here, then any other purported supplement, or any paper purporting on its face to be a portion or a part of the printed daily journals of the Legislature, can be brought into court at any time to dispute and impeach the authenticity of the official journals published and bound by the State printer by authority of the Legislature, and certified to be correct by the clerk of the House and the secretary of the Senate. It will not be necessary, under the reasoning of the argument in favor of this supplement, to inquire where the paper came from. It will be conclusively presumed that it is an exact copy of those that it will also be presumed were laid upon the desks of the members of the Legislature; and whether picked up in the street, or found in the files preserved by some one, by whom it was received in the mails, it will, by presumptions never before indulged in in favor of any document, and without proof, because no proof can be received, stand in the courts as the journal of the Legislature for the day or days it purports to cover, and, if it conflicts with the published journals, the latter must fall. It is to be hoped that no such dangerous precedent as this will ever be established by this Court.

As for myself, from the beginning, I have regarded this supplement — as the Legislature evidently regarded it — as no part of the journals; and a. patient and laborious investigation of the journals in connection with it, and treating it as a part of such journals, has, as conclusively shown by the opinions of my Brothers McGrath and Montgomery, proven that the Legislature, in their action upon the bill before them, paid no attention to it, and utterly disregarded it. To now make it a part of the journal, and to impeach -and destroy legislative action by virtue of it, would be a usurpation by this Court of power which belongs to the Legislature, under our Constitution, and would be a declaration of law which, in this case, would evidently lead to a false determination, and a denial of the truth as to the action of the Legislature in the passage of the law before us.

This case is not at all like the case of Rode v. Phelps, 80 Mich. 598. In that case the bill under consideration was found printed in the body of the journal as it came from the Senate. “The bill as amended was ordered printed at length in the journal. The bill is as follows:” (Then follows the bill in full.) See House Jour. 1889, p. 1792. Every subsequent alteration of the bill as printed appears upon- the journals, and it was never read again in the House, and it was finally passed by a concurrence in the report of the conference committee of the two houses. No presumptions were indulged in in that ease, because everything appeared plainly and conclusively in the official journals, and there was no possible escape from the fact that the bill, as signed by the Governor, never passed either house of the Legislature.

2. As to the law itself, I think it valid, as shown by the opinion of Mr. Justice Montgomery, in which I concur.

The writ must issue as prayed.