Veldman v. City of Grand Rapids , 275 Mich. 100 ( 1936 )

I am unable to agree with the opinion of Mr. Justice POTTER, because of my inability to escape the conviction that the plan as disclosed by the record in this case is a mere subterfuge.

The lien of the city for unpaid taxes extended to the entire property, and the power plant in question is but a part thereof. While it may be true that the city can purchase property with waterworks funds without a vote of the people, the scheme to get around the inhibitions of the statutes and charter is too apparent to permit me to close my eyes to its real purpose nor fail to observe all the facts and circumstances connected therewith.

I know of no cogent reason why Abe Dembinsky, Inc., can solve its tax problem in this manner.

The speed with which the instant transaction was accomplished is sufficient to warrant the most minute scrutiny. Exhibit C, attached to the bill of complaint, discloses that on Tuesday, September 17, 1935, the superintendent of the municipal water and lighting plant, who had only occupied that position for about 30 days, discovered its dangerous condition and suggested an auxiliary power plant. No one in the last 25 years had become aware of this impelling need. The next morning, the power plant of the delinquent tax property was offered for sale to the city by Abe Dembinsky, Inc., the proceeds to be used for the satisfaction of $157,368.24 in delinquent taxes on the entire property. The following day the city commission decided to study the proposal and the alert water plant superintendent was directed to investigate and report. Two days later the mayor urged the necessity of an early report. Monday, September 23d, the report was submitted but without any recommendations and the city commission at 3 p. m., sitting as a committee of the whole, approved the acceptance of the taxpayer's offer. The city commission meeting in formal session the same evening ratified the action of the committee of the whole. Thus less than seven days elapsed between the birth of the scheme and its culmination.

No matter how carefully the legal details of the transaction were thought out, the record does not warrant the conclusion that a sudden emergency existed, which affected the needs of the community sufficiently to justify such haste. It is suggested in the offer that the result might encourage the reopening of a part of the Berkey Gay plant and thus relieve unemployment, but I discover no testimony to this effect.

The transaction taken in its entirety in the light of the background furnished by the pleadings is, to say the least, tainted with suspicious circumstances.

"Courts of equity look to the substance and effect of transactions involved in the controversy, and will not be deceived by mere words or forms, when the conduct of the parties contradicts the forms and words used as a cover to their transaction." Thompson v. Andrus, 73 Mich. 551, 560.

My brother POTTER says:

"We cannot go behind the recorded action and vote of the city commission and set aside the transaction because of a lack of good judgment on the part of the commission even if we should so find. The entire transaction was one for the city commission to act upon. It acted and we cannot find on the record before us it violated the Constitution, statutes or charter of the city in so doing."

In my opinion we do not need to go behind the record or question the judgment of the commission.

The lien of the city for unpaid taxes is determined by the provisions of 1 Comp. Laws 1929, § 3429 (as amended by Act No. 38, Pub. Acts 1934 [1st Ex. Sess.]), this statute saying the lien "shall continue until payment thereof."

Taxes when due become a personal liability or obligation and the duty to pay the tax rests upon the owner of the property (section 3429, as amended); Harrington v. Hilliard, 27 Mich. 271, and West Michigan Lumber Co. v. Dean, 73 Mich. 459. The method of enforcement of such tax is by distress on goods and chattels, and if not so collected the tax is returned unpaid and the land sold. Schaefer v. Woodmere Cemetery Ass'n,256 Mich. 332. Taxes are designed and collected for the purpose of supporting government and maintaining its activities and functions. Taxes are levied to raise money for specific purposes. Unless qualified in the context, the term "taxes" or "tax" is used in the sense of money — an exaction to be discharged in money. Money is always understood in the tax laws when nothing else is mentioned. People, ex rel. Jones, v.Wright, 34 Mich. 371; People v. Seeley, 117 Mich. 263; and 3 Cooley's Taxation (4th Ed.), § 1252. The only qualification found in the statutes is Act No. 228, Pub. Acts 1899 (1 Comp. Laws 1929, § 339), allowing payment by check for purposes of convenience.

The books contain cases which permit argument that property may be accepted in lieu of money, but these authorities are confined to special assessments, highway maintenance, etc., and not general taxes. See Lake Superior Ship Canal R. Iron Co. v. Township of Thompson, 56 Mich. 493; Coit v. City of Grand Rapids, 115 Mich. 493, and Scovel v. City ofDetroit, 159 Mich. 95, as illustrative. See, also, 26 R. C. L. "Taxation," pp. 38-41, §§ 22-24, and In re Petition of AuditorGeneral, 226 Mich. 170, and cases therein cited at pages 173, 174.

The city commission of Grand Rapids could not do by indirection that which it could not do directly, i. e., relieve property of a tax lien by accepting a deed to a part thereof. The power to govern the city and control its affairs is vested in the people through their local municipal officers; neither this court nor any other court should assume to dictate the local governmental policy of the municipality. Authority is vested in the commission to govern as its discretion dictates so long as its act is not contrary to law. White v. City ofGrand Rapids, 260 Mich. 267, 275, and Marxer v. City ofSaginaw, 270 Mich. 256. The act of the commission was ultravires and void and therefore I cannot concur in the opinion in this case.

The decree should be vacated and one entered here declaring the action of the city commission void. Defendants should be permanently enjoined from carrying out any of the terms of the commission's resolution. Costs are not ordinarily allowed in public matters, but plaintiffs, acting in the interest of the public, should have their costs against the defendant Abe Dembinsky, Inc.

TOY, J., did not sit.