While it may be largely repetition of what Justices POTTER and SHARPE have said, I am impelled to summarize my views of the case, but without requoting from the statutes and authorities set up in their opinions.
Under 2 Comp. Laws 1915, § 5706, the tax collecting officer, out of the moneys collected by him, was required to pay to the school district the whole school tax assessed. Under 2 Comp. Laws 1929, § 7470, he is required to pay, out of the moneys collected by him, only the amount of school tax collected. These provisions have reference merely to the disbursement of actual tax collections, not to liability for school taxes not collected. The change in the statute eliminated liability for the entire school tax assessed and leaves liability for uncollected taxes to be governed by other law.
It is the duty of the township or city treasurer to try to collect all personal taxes assessed. 1 Comp. *Page 417 Laws 1929, § 3434. If not paid, he is required to make demand personally or by mail on the taxpayer, except where, in cities, other provisions for demand or collection may be made. Section 3437. If payment is not made, he must seize property, if he can find it, and sell it for taxes. Section 3438. He may bring suit and garnishment proceedings. Diligent effort to distrain property for personal taxes, if otherwise uncollected, is mandatory. The treasurer cannot make settlement with the county treasurer, in returning personal taxes as uncollected, without affidavit that, upon diligent inquiry, he has been unable to discover any goods or chattels belonging to the person liable for the taxes, upon which he could levy. Section 3446.
Failure to perform these positive duties by a township treasurer is a default "in the discharge of any duty imposed by this act," i. e., the general tax law, for which the township is liable, under section 3485.
It is true that section 3485 does not in express terms make a city liable for the default of the city treasurer. But, because school taxes, as well as others, become a "debt due to the township, ward or city" from the taxpayer (section 3429), and the law declares no right of the school district to collect from the taxpayer nor from the collecting treasurer nor to have recourse to the latter's bond, and it is the policy of the law that the method of tax collections and disbursements to the proper governmental agencies shall be uniform (so expressly declared as to fourth class cities, section 2164 et seq., and home-rule cities, section 2230 [i]), it would do no great violence to the statute to construe "township" in section 3485 as including "city," although no other provision of law so declared. See County of Wayne v. City of Detroit, 17 Mich. 390. *Page 418
Whether these considerations, of themselves, would be sufficient to justify such construction, they are persuasive, in connection with the plain language of section 3500, that:
"This act shall be applicable to all cities and villages where not inconsistent with their respective charters. * * * The word township may include city, ward or village;"
in rendering section 3485 applicable to cities.
In my opinion, the city is not liable for the whole uncollected school tax assessed, but only for that part which it may be shown was lost by default of its treasurer in failing to discharge his duties under the tax law.
The declaration sets up no breach of duty by the city treasurer as to uncollected taxes, and states no cause of action in that respect. However, it and the bill of particulars count on claims for moneys collected by the treasurer, although, in fact, there is no issue thereon. Because of this technicality, the declaration must be held to state a cause of action, and the judgment is affirmed, but without costs.
CLARK, C.J., and McDONALD, NORTH, and BUTZEL, JJ., concurred with FEAD, J.