Municipal Investors Ass'n v. City of Birmingham

I concur in the result reached by Mr. Justice CHANDLER. The paramount question involved in this case may be stated as follows: Do the statutes here involved prevent reassessment on special assessment districts when the land in such districts has been bid in by the State at the tax sale and then resold under the so-called scavenger act?*

Act No. 206, § 67, Pub. Acts 1893, as last amended by Act No. 282, Pub. Acts 1939 (Comp. Laws Supp. 1940, § 3459, Stat. Ann. 1940 Cum. Supp. § 7.112), dealing with the decree to be entered upon the sale of property for tax delinquencies, provides:

" 'It is further ordered, adjudged and decreed that title to each parcel of land ordered in this decree to be offered for sale, and which parcel of land is bid in at such sale to the State, shall become absolute in the State of Michigan on the expiration of the period of redemption from such sale, and all *Page 328 taxes and other liens and incumbrances, of whatever kind ornature, cancelled as of such date.' * * *

"Upon the entering of the decree hereinbefore provided for, absolute title to the lands therein shall vest in the State of Michigan as provided in said decree."

Act No. 155, § 9, Pub. Acts 1937 (Comp. Laws Supp. 1940, § 3723-9, Stat. Ann. 1940 Cum. Supp. § 7.959), defining the authority of the State land office board to execute deeds and conveyances, reads as follows:

"Any quitclaim deed or deeds executed by the board shall convey title in fee to land vested in the board under the provisions of this act, free from any incumbrances."

Under the above authority, when the land is sold to the State for tax delinquencies, all incumbrances upon the land are discharged; and under the scavenger act, such land owned by the State is sold by it free of all incumbrances. Is the liability to reassessment an incumbrance within the meaning of these statutes? It is the general rule that a special assessment does not become an incumbrance until it has become a lien against the premises. See 72 A.L.R. 302; Jaques v. Tomb,179 Calif. 444 (177 P. 280); Cemansky v. Fitch, 121 Iowa, 186 (96 N.W. 754); Metropolitan Life Ins. Co. v. Union TrustCo., 283 N.Y. 33 (27 N.E. [2d] 225, 128 A.L.R. 370); Lindsay v. Eastwood, 72 Mich. 336.

In Post v. Campau, 42 Mich. 90, we said:

"Anything is an incumbrance which constitutes a burden upon the title; a right of way, Clark v. Swift, 3 Metc. (44 Mass.) 390, 392; a condition which may work a forfeiture of the estate, Jenks v. Ward, 4 Metc. (45 Mass.) 404, 412; a right to take off timber, *Page 329 Cathcart v. Bowman, 5 Pa. 317; a right of dower, whether assigned or unassigned, Runnells v. Webber, 59 Me. 488. In short, 'every right to, or interest in the land, to the diminution of the value of the land, but consistent with the passage of the fee by the conveyance.' Prescott v. Trueman,4 Mass. 627, 630 (3 Am. Dec. 246)."

Under the above definition of an incumbrance, it would naturally follow that the possibility of reassessment would constitute an incumbrance and thus be cancelled. Moreover, the city of Birmingham has no power or authority to levy a special assessment against the land while it is owned by the State of Michigan.

In People, ex rel. Auditor General, v. Ingalls, 238 Mich. 423,425, we said:

"The doctrine has been pretty well settled in this State and elsewhere that property owned by the State or by the United States is not subject to taxation unless so provided by positive legislation. And municipalities and State agencies are included in this class when their property is used for public purposes. The reason which supports this doctrine is that, if taxes were permitted to be levied against the sovereign, it would be necessary to tax itself in order to raise money to pay over to itself. This would be an idle thing to do. And, besides, it is rather incongruous that the creature should have the right to tax its creator without its consent. Out of this reason has grown an implied presumption that the State is exempt from all taxes unless the one asserting it can point to some legislation in support of it. We are not aware of any law, nor has any been called to our attention, which authorizes the city of Detroit to levy any tax or assessment against State property. Unless it can do this, its contention must fail. Again, if this tax can be levied against *Page 330 State property, who has authority to pay the tax, and, if it is not paid, who has authority to sell the land to pay the tax?"

The writ is denied.

BUSHNELL, BOYLES, and NORTH, JJ., concurred with SHARPE, C.J. BUTZEL, J., did not sit. McALLISTER, J., took no part in this decision.

* Act No. 155, Pub. Acts 1937, as amended (Comp. Laws Supp. 1940, §§ 3723-1 et seq., Stat. Ann. 1940 Cum. Supp. § 7.951 etseq.). — REPORTER.