Hood v. Judkins

Morse, J.

This is an action of replevin, brought by the plaintiffs, who are copartners, doing business under the style of Hood, Gale & Co., Hood living in Jackson and Gale in Big Rapids. The office of the firm was in Big Rapids.

The suit is brought against the defendant, who was treasurer of the township of Green, Mecosta county, to recover possession of property seized by him to enforce the payment of a tax upon personal property assessed against the plaintiffs in the year 1884.

The main question at issue on the trial was as to the locality where certain property ought to have been taxed.

It appears substantially, from the plaintiffs’ own showing, that the business of the firm was lumbering. Their lumber was sawed seven miles from the Grand Rapids & Indiana Railroad, and brought to Crapo station, on that road, to ship. They had no mill or store in Green township, within which Crapo station is included.

In October, 1880, the plaintiffs entered into a written contract with Baker & Stearns, whereby Baker & Stearns agreed to cut all the pine on certain lands, and manufacture the same into lumber, and deliver the lumber upon or along the side tracks of the Grand Bapids & Indiana Bailroad Company at Crapo. This lumber they were to cross-pile in a good and workman-like manner, and so that it would dry quickly. When delivered as aforesaid, and paid for, it became plaintiffs’ property.’ Baker & Stearns made an arrangement with one Dixon for the possession of some land at Crapo for the purpose of piling the lumber thereon.

In 1881, Baker & Stearns began delivering the lumber, and piling it upon this land. The plaintiffs kept a man at Crapo who saw to the shipping and tallying of the lumber as it was sold by plaintiffs. In 1883, plaintiffs looked after the piling of the lumber, and had it piled so that it would dry and season. They hired about ten acres of ground of one Frank Bobbins, and paid him for the use thereof. It was hired for the purpose of piling their lumber thereon.

In the spring of 1884, at or about the time of assessment, there were between live and six million feet of lumber piled on this ground. It was piled there to dry and season, and some of it had been there for two years. The bulk of the lumber piled at Crapo was dry and seasoned before shipment. The firm kept no office there and made no sales there. Their agent who had charge of the yard had no authority to make any sales except as he received orders from the firm. The sales were all made by the firm at Big Bapids or elsewhere, and the orders were sent to the agent at Crapo, who filled them and attended to the shipping. The books of the firm were kept at Big Bapids, and the yard man at Crapo made his reports to the office of the firm at Big Bapids.

The property thus piled and being at Crapo station was assessed in the township of Green, and the tax levied upon it amounted to $936.97.

It is claimed by the plaintiffs that the facts of the case bring it within the decision of this Court in Monroe v. Greenhoe, 54 Mich. 9; but we do not think so.

Under the tax law of 1882, in force at the time of this assessment and levy, the statute provided that—

“All goods and chattels situate in some township other than where the owner resides shall be assessed in the town where situate, and not elsewhere, if the owner or person having control thereof hires or occupies a store, mill, place for the sale of property, shop, office, mine, fa/rm, storage, manufactory, or warehouse therein, for use in connection with such goods and chattels.”

The italicized words are the addition made to the Compiled Laws of 1871, and were evidently added by the Legislature in view of the rulings of this Court in Putman v. Fife Lake, 45 Mich. 125, and McCoy v. Anderson, 47 Id. 502.

A copartnership, under the tax law of 1882, was deemed to have its residence where its business was principally carried on.

It is clear in this case, to my mind, that the plaintiffs hired and occupied “ storage ” in the township of Green for this property, and “for use in connection with” it. The lumber was not moved anywhere else, nor intended to be until sold. This lumber was piled there to dry and season, and it was stored there, not only in the common, but the legal, acceptation of the term. Loud v. City of Charlestown, 103 Mass. 278.

In my opinion, the Legislature intended to reach just such cases as the present. Under the decisions heretofore referred to, in 45 and 47 Mich., construing the tax law previous to this enactment of 1882, many wealthy copartnerships and corporations, as a matter of common notoriety, escaped taxation upon their lumber stored and piled and sold and shipped away from their places of residence. If it were to be taxed only at the place of residence of the owner, it could easily be concealed from the assessors; but if taxed in the woods, or at the depots where it was kept until sold, the vigilant assessor would not miss 'it. The plain and manifest object of the Legislature was to make this kind of property pay its just share of taxation, and for that purpose provided it should be assessed where it was stored for use and sale.

In this case, as in the cases of Manistique Lumbering Co. v. Witter and Same v. Griswold, 58 Mich. 625, 634, the lumber was not assessed at the home of the owners; thus bearing out the correctness of the idea above suggested, that) without this construction of the intent of this statute, a large amount of property would avoid any taxation. This was no doubt the legislative idea, and the statute was thus enlarged to embrace without question this class of property, and to lessen the burdens of the honest tax-payers.

This case comes within the principles enunciated in the Manistique Lumbering Co. Cases, and is governed by them.

In Monroe v. Greenhoe, 54 Mich. 9, the facts disclosed that the lumber was brought to the railway station for transit merely, and the owners did not hire any place for storage, as in this case. It was piled in the yard of the party who sawed it for purposes of convenient shipment. It was held that this could not be considered a place of storage occupied by plaintiffs for use in connection with it.

The ruling in that case does not interfere with the ruling of the circuit judge in this case, who instructed the jury that, if they found the lumber was placed at Crapo merely for convenience in loading and shipping, and for a merely temporary purpose, it could not be said to be stored within the meaning of the statute; but if the ground was hired by plaintiffs, and the lumber piled thereon for the purpose of seasoning it, intending it should remain there until seasoned,— making a business of seasoning it there, — deeming it necessary to so dry and season it before sale, then it was stored under the statute.

The judge’s charge was right, and in harmony with .the decisions of this Court in both the Manistique Lumbering Co. Cases and in Monroe v. Greenhoe. The jury found the property was stored there. The finding was correct in law and in fact.

It is contended that the tax roll was not admissible, without proof by defendant that plaintiffs were subject to taxation in that township. As we hold, under the undisputed facts and the law of the case, that the property was assessable in the township of Green, the question of the order of proof becomes immaterial; but we see no reason, under a statute that provides that such roll shall be conclusively presumed to be valid, and shall not be set aside except for certain specified causes, to hold that it shall not bejprima facie evidence of the facts therein stated, and of its own validity. Sections 19, 47, tax law 1882.

The treasurer’s roll was admissible as evidence, prima facie, of all the proceedings, including the assessability of the property under the sections above cited, and also under section 84 of the same act.

It is also objected that the defendant was permitted to introduce in evidence the warrant of the county treasurer, without a showing that a return had been made by the township treasurer stating the taxes remaining unpaid upon personal property, as required by section 44 of the act.

There is no foundation for this objection. The property in question was held, at the time it was taken upon the writ of replevin, by virtue of the tax roll, and the warrant thereto annexed. There was no claim upon the part of plaintiffs that this tax had been' paid by them, or by any one for them, and therefore it could not concern them in this case whether any such statement had been made or not.

The fact that the plaintiffs paid, without protest, the taxes assessed upon their lumber at this point in 1882 and 1883 was properly admitted upon the cross-examination of the witness Gale, one of the plaintiffs. He had given the history of the plaintiffs’ piling and use of this lumber at Crapo since 1881, and had testified, on his direct examination, that the lumber there was not assessed or taxed in the township of Green for the year 1885. It was proper cross-examination under the circumstances, and had a tendency to show in what light the plaintiffs themselves, before this litigation, regarded their occupancy and use of the premises upon which the lumber was piled or stored.

None of the other errors alleged could have been prejudicial to the plaintiffs’ case.

It is contended that in the admission of evidence showing that this lumber was not taxed at Big Eapids in 1884, and in certain remarks made by the court in his charge to the jury, the plaintiffs were prejudiced; but, in our view of the law and the undisputed testimony, the court should have instructed the jury to find a verdict for the defendant as the case stood at the close of the evidence.

We have taken pains to refer specifically to the errors assigned in this case; but when the fact became apparent that this property was rightfully 'assessed in the township of Green, and was held, at the time suit was begun, under tax process valid on its face, it is evident that all further controversy ought to have ended, as, under the decisions of this Court, the action of replevin could not lie. Hill v. Wright, 49 Mich. 229.

The action is prohibited by the statute authorizing it, against property seized under a warrant for the collection of a tax levied by virtue of any law of this State. How. Stat. §§ 8318, 8321.

If the property had not been assessable in the township of Green, then replevin would have been a proper remedy; as, there “ being found no statute authority for the assessment and collection of any tax” in that township against the plaintiffs, the case would have been outside the bar of the statute forbidding replevin. Le Roy v. East Saginaw City Ry., 18 Mich. 233; McCoy v. Anderson, 47 Id. 505.

But, when the jurisdiction to assess and levy the tax was established, the court could have no further concern with matters affecting the exercise of such jurisdiction, however irregular and invalid they might have been, in the form of aetion brought in this case.

To hold otherwise would be to make the question of the maintenance of the replevin to depend upon the validity of the tax, and make the statute forbid only those actions -of replevin which must equally have failed without the statute. Le Roy v. East Saginaw City Ry., 18 Mich. 237.

The judgment of the court below is therefore affirmed, with costs.

Campbell, C. J., and Sherwood, J., concurred. Champ-t,in, J., took no part in the decision of tiffs case.