Township of Comins v. Township of Harrisville

8 N.W. 44, 45 Mich. 442, 1881 Mich. LEXIS 747

• Court: Michigan Supreme Court
• Decided: January 28, 1881
• Status: Published

Opinion

Marston, C. J.

The facts as found by the circuit judge appear in the margin.

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The law of this State relating to the assessment, levy and collection of taxes, does not regard certain designated territory as a township until the proper officers necessary to conduct its affairs have been elected. The officers of the new township not having been elected- until July, there was not such a perfected organization as would enable that township to assess the township and school taxes for that year. Under such circumstances, in my opinion the township of Harris-ville had a right to levy and collect the taxes in question. But whether it did or not, the present action will not lie to recover the moneys so collected. If it did have, this is not the proper remedy; if it did not, its action cannot be ratified by the town of Comins, and an action maintained for the money.

In either view the judgment below was correct and must be affirmed with costs.

Cooley and Graves, JJ. concurred. Campbell, J. I concur in the result.

The facts found are as follows: From the year 1869 until the twenty-second day of March, A. D. 1877, the county of Oscoda was attached to the county of Alcona, for judicial and municipal purposes, and up to the last-named date the township of Harrisville lawfully and legally exercised municipal jurisdiction over the territory comprising the said county of Oscoda. \

That on the last-named date the legislature passed an act (No. 263, Sess. Laws 1877), organizing the county of Oscoda into a township, called by said act the township of Oomins, said act taking immediate effect.

In the year 1877 the supervisor of the township of Harrisville made an assessment roll, embracing, with other territory, all the territory in the county of Oscoda. The total amount of taxes spread upon the whole roll was $28,293.24, of which there was assessed for townslHp taxes $809 76; for school taxes $4164.65. Included in the two last-named items was the sum of $469.39 for township tax and $1702.01 for school tax, which two last-named items were assessed upon the territory comprised in the county of Oscoda. Said two last-named items were collected by the treasurer of the township of Harrisville. The interest on said two last-named items to day of trial is $341.95.

The township of Oomins elected officers of the township in the month of July, 1877. This was the first election of township officers in the township of Oomins.

In the year 1879 the township of Oomins, by its duly-constituted agent, made a demand on the township board of the township of Harrisville for the payment to the township of Oomins of both of said items of township and school tax, and interest thereon, stated above to have been collected from the county of Oscoda.

Upon the foregoing facts found it is concluded that if the said tax was legally assessed, then the money arising from the assessment belongs to the defendant; if the assessment of said tax was without legal power or authority, and therefore void, then the money so collected belongs to the tax-payers who paid it.

In this case, as a conclusion of law, we say that the defendant is entitled to judgment.

Bated May 5, 1880. J. B. Tuttle, Circuit Judge.