Ottawa Lumber, Co. v. Mayor of Harbor Springs , 291 Mich. 83 ( 1939 )

For the reasons hereinafter indicated I concur with Justice CHANDLER'S holding that the order of the circuit court granting the writ of mandamus should be reversed. There is no question but that the funds necessary to satisfy the judgment rendered against Harbor Springs were obtained through the levy of general taxes. 3 Comp. Laws, 1929, § 14690 (Stat. Ann. § 27.1654). It was not a special assessment. The judgment when rendered was a judgment against the municipality only, not against the taxpayers. Aside from constitutional provisions, cities and villages have only such powers as the legislature expressly confers upon them or as are necessarily or reasonably inferred from expressly conferred powers. Barnhart v. City ofGrand Rapids, 237 Mich. 90; City of Kalamazoo v. Titus,208 Mich. 252; Attorney General v. Detroit Common Council of theCity of Detroit, 150 Mich. 310 (121 Am. St. Rep. 625); 1 Dillon on Municipal Corporations (5th Ed.), p. 448 et seq., § 237. Nowhere in our Constitution or statutes is there an express provision, nor is there a necessary or reasonable inference from express provisions, that the city of Harbor Springs (or the former village) has or had the power to redistribute to taxpayers any money collected by the process of general taxation. In the absence of such provision the municipality has neither the right nor power to return funds obtained through general taxation.

"A public corporation may refund a voluntary payment of an assessment (meaning general tax) if statutory authority for such payment exists, but in the absence of such statutory authority a city cannot refund such payments." 2 Page Jones on Taxation by Assessment, p. 2135.

"It cannot be conceded that the city council could rescind an assessment (of a general tax) which has been consummated by payment without some special authority to that end derived from legislation." Norris v. City ofElizabeth, 51 N.J. Law, 485 (18 A. 302).

As bearing somewhat upon the same principle of law but particularly pertaining to exemptions, Cooley on. Taxation has said:

"Pertaining as it does to the sovereign power to tax, the municipalities of the State have not the exempting power except as they are expressly authorized by the State. A municipal corporation has no inherent power to grant exemption, nor to commute taxes. However the legislature may delegate to a municipality the power to make particular exemptions; the power delegated to municipal corporations to tax does not include power to exempt." 2 Cooley on Taxation (4th Ed.), p. 1398.

See, also, 5 McQuillin on Municipal Corporations (2d Ed.), p. 695 et seq., § 2215.

It is true that some municipalities have the power to return to those who have paid a special assessment the amount collected in excess of that required by the special purpose for which the assessment was levied. But this is due to the fact that these municipalities are given the power to refund such excess in special assessments by express statutory or charter provision. I Comp. Laws 1929, § 2050 (Stat. Ann. § 5.1845).Thayer v. City of Grand Rapids, 82 Mich. 298. It would seem to be a necessary inference that if the legislature intended municipalities should have the power to return money collected incident to general taxation, it also would have been expressly conferred by statute. But, as held in the above cited authorities, in the absence of such express provision municipalities have no power to return to taxpayers money collected as a general tax. This court has held:

"A bill praying for an accounting, and that certain tax moneys levied and collected under a misapprehension of the requirements of the statute, but which were paid from year to year without protest, be returned to the taxpayers, cannot be sustained, there being no averment of any fraud in the assess-mentor levy of the taxes." Manistee Lumber Co. v.Township of Springfield (syllabus), 92 Mich. 277.

There is nothing that savors of dishonesty or that is inequitable arising from the municipality's retention of this fund. The like amount was originally obtained by spreading taxes at large. Its retention will reduce to that extent the amount that it would otherwise be necessary to collect in current taxes. And, further, retention of the fund will relieve the municipality of the expense and the practically unaccomplishable task of finding the numerous persons who paid this tax in 1926 and of parceling out the varying sums of thepro rata return.

Under this record the circuit judge's order granting mandamus should be reversed. This being a question of public concern, no costs will be granted.

BUTZEL, C.J., and CHANDLER and McALLISTER, JJ., concurred with NORTH, J.