This case was once before in this court, and the opinion then given resulted in a new trial. Stockle v Silsbee 41 Mich. 615. It is ejectment to recover lands the original title to which is held by the plaintiff. The lands were returned for the non-payment of taxes of 1869, 1870, 1871 and 1872, and were bid in for the State in each of those years. Afterwards the State sold them, and defendants hold the State conveyance. The plaintiff claims that the tax levy *563was void in each of the four years; and the controversy turns wholly upon this allegation. The land consists of one hundred and twenty acres lying in one body in the township of Fair Haven, Huron county. The objections to the tax levy are numerous, and some of them we think too plainly frivolous to require even a mention. The others are the following:
I. The highway tax for 1869 is said to have been excessive. The valuation of the land for that year was $180, and a highway tax of $3.15 was levied. The regular highway assessment is in labor, but this, when not performed, becomes a money tax, which under the statute cannot exceed one per cent, of the valuation. Comp. L. §§ 1228, 1241. But the township has authority to vote a general levy for highways ; and this seems to have been done for the year in question, and the sum voted goes to make up the highway tax which the rolls show. It is objected that a tax thus voted constitutes a part of the township tax, and must appear in the column of township taxes on the roll. Case v. Dean 16 Mich. 12. We think, however, that the supervisor was correct in adding it to the other highway tax. Comp. L. § 1002.
Unfortunately, however, the township voted a larger sum than the statute permits. The authority is expressly limited to a sum not exceeding five mills per centum upon the aggregate valuation of the property in the township (Comp. L. § 1269); but the amount actually voted and levied exceeded eight and one-half mills per centum. This excess, under the previous decisions of this court, was sufficient to defeat any sale made for an aggregate of taxes of which this highway tax formed a part. Lacey v. Davis 4 Mich. 140; Buell v. Irwin 24 Mich. 145; Wattles v. Lapeer 40 Mich. 624.
II. The equalization of assessment rolls by the board of supervisors for the year 1869 is said to be defective, but the criticism made is altogether over-nice and technical. The record of the board shows that the committee on equalization made a report, to which was appended a tabular statement giving the names of the townships, the assessed valuation, the increase or decrease, if any was proposed, and the proposed equalized valuation. This report, the record shows, after an *564alteration in respect to Fair Haven, “was accepted and adopted as the equalization of the county.” The objection to this seems to be — First, that neither the report of the committee nor any resolution adopting it was in writing, and that there can be no sufficient record without it; and second, that the equalization was of real and personal property both, while under the statute the board are to judge of the relative valuations of real estate onty. The first objection aims at matter of form only. It might perhaps be better if all reports and resolutions in deliberative bodies were made and offered in writing, but there is no law or custom requiring it. The second objection is equally baseless. The board, after determining whether the relative valuations of real property are disproportionate, are required to make the additions or deductions they find necessary to or from the whole taxable property of the township. Comp. L. § 993. That is what was done here.-
III. It is further objected that there was no proper action of the Board of Supervisors determining the amount of money to be raised for county purposes. The record upon this subject is as follows: “ Committee on finance submitted the following report, which on motion was accepted, and the resolution to raise the respective sums adopted: For State tax, $1980.27; poor fund, $400 ; contingent fund, $6261.68.” Here again is no written resolution, but the clerk has taken down the substance of one submitted orally, and the record is as full and complete as is to be expected. There is no defect in matter of substance.
IY. In the levy for 1870 was included a township tax of $150. The township had voted only $125, and it is therefore claimed the levy was excessive. But the township board had a right to increase the sum voted when necessary (Comp. L., § 751); and it must be presumed in the absence of any showing to the contrary that they did so in this case. Upton v. Kennedy 36 Mich. 215; Stockle v. Silsbee 41 Mich. 615.
V. There was levied for the year 1870 a tax of one-tenth of a mill on the valuation, in aid of the County Agricultural *565Society. The statute authorized such a tax only when the sworn certificate of the president and secretary of the society, that the society itself had raised for the year $100 or more, was presented to the supervisors. Comp. L., § 2163. When the trial took place the county clerk could find no such certificate in his office; and the plaintiff requested the court to submit to the jury the question whether one was ever made. This was refused. The presumption is that the proper certificate was presented. Upton v. Kennedy 36 Mich. 215 ; Hogelskamp v. Weeks 37 Mich. 422. The only evidence appearing in the record which could have been submitted to the jury as having a contrary tendency was that of a member of the Board of Supervisors for the year, who testified that he had no recollection whether a certificate was or was not presented. But this mere negative declaration was of no force, and there was nothing in it to go to the jury as tending to rebut the legal presumption that the action of the supervisors was based upon a proper certificate.
YI. For the year 1871 there was no equalization of the assessment rolls at the October session, as is required by Comp. L., § 993. It appears, however, that one was made by the board at its June session, as is required every fifth year by Comp. L., § 301. As the board is composed of the same persons in June and in October, and a new equalization would be an idle formality, we are not inclined to hold that a failure to go through with that formality in October is fatal.
YII. The warrant appended to the tax roll for 1871 indicates that a surveyors’ tax of $13.53 was included in the levy; and for this it is claimed there was no authority of law. The statute, however, authorizes a levy to be made in some cases on particular parcels of land, to meet the cost of their survey ; Comp. L., § 595; so that presumptively this tax may have been lawfully laid. There is no showing and no claim that any part of it, was levied on the land in controversy.
YIII. The most serious defect which is pointed out in any of the proceedings, is found in the supervisor’s certificate to the assessment roll for the years 1870, 1871 and 1872. Sec*566tion 991 of tlie Compiled Laws, under which these assessments were made, is as follows:
“When the supervisor has reviewed and completed the assessment roll, it shall be his duty to attach thereto, signed by him, a certificate, which may be in the following form : ‘ I do hereby certify that I have set down in the above assessment roll, all the real estate in the township of-, liable to be taxed, according to my best information, and that I have estimated the same at what I believe to be the true cash value thereof, and not the price it would sell for at a forced or auction sale; that the said assessment roll contains a true statement of the aggregate valuation of the taxable personal estate of each and every person named in said roll, and that I have estimated the same at the true cash value, as aforesaid, according to my best information and belief.’ ”
The form given in this section was followed by the supervisor, except that the words “ and not at the price it would sell for at forced or auction sale” were omitted. As the circuit judge sustained the levy, he must have reached the conclusion that the observance of the statutory form was not compulsory.
The early statutory form did not contain the words which the supervisor has omitted (Comp. L. 1857, § 806), and the change in the form was made in a revision of the tax law in 1869. If the change in the form whereby these words were brought into it had no important purpose in view, we may well hold that the proceedings are not affected by the supervisor continuing the use of the form which had been in use before. But it is a matter of common knowledge that the change was made for the very purpose of effecting an important change in the assessments. It was notorious that supervisors had been in the practice of evading the previous law and making assessments at a mere fraction of the real value of the property, when sworn to make it at the cash value. It was very easy to excuse the evasion of duty under the pretense that the cash value of property was only what it would bring if forced upon the market; and the law was amended for the very purpose of taking away this excuse. It will not do to say that such an amendment is unimportant and there*567fore may be disregarded with impunity ; it goes to the very essentials of the assessment, and was intended not only to control that, but also through that all the subsequent proceedings. There is not the slightest doubt the Legislature intended that the adoption of the form given, or one that should be equivalent in substance, should be compulsory in every instance. The failure to adopt it is, therefore, a fatal defect. Clark v. Crane 5 Mich. 151.
IX. It appears, then, that there was an excessive levy for the year 1869, and that for 1870, 1871 and 1872 there were no valid assessments and consequently no valid taxes. Under such circumstances it remains to be seen whether it is possible to support the deed under which the defendants claim. If so it must be supported upon the State bid for 1869. No defect was pointed out in the proceedings for that year with the single exception that the levy was excessive.
The reason for holding a tax sale void when the levy is excessive is that the sale is for the aggregate of all the taxes, so that the tax title is based as much on what is illegal as upon what is lawful. It is said, however, that this rule is changed by the existing tax law, whereby it is provided that no sale for delinquent taxes shall be held invalid unless it shall be made to appear that all legal taxes were paid or tendered ; and further, that all taxes shall be presumed to be legally assessed until the contrary is affirmatively shown. Comp. L. § 1129.* Plaintiff contests the validity of this section, contending that when one’s land is taken for a levy any portion of which is illegal, it is to that extent taken without due process of law. Defendants on the other hand affirm that the power to sell arises from the default in making *568payment of the legal taxes, and that the sale for these, being-in due process of law, is not affected by the irregularity of including a sum not legally levied. This is the view that has been taken in Iowa. Eldridge v. Kuehl 27 Iowa 160 Parker v. Sexton 29 Iowa 421; Rhodes v. Sexton 33 Iowa 540.
"We had occasion to take some notice of this statute in Upton v. Kennedy 36 Mich. 215. It was relied upon in that case in support of a sale based upon an illegal return; but we were of opinion that it was not the purpose of the statute to render unimportant any of the proceedings which before were jurisdictional. As we found in that case that there was no return upon which any sale could be based, it did not become necessary to decide whether the statute would be effectual to support a sale when the only infirmity was the inclusion of an illegal levy among those which were legal in making up the aggregate sum for which sale was made. If it is within the competency of the Legislature to pass an act which shall have that effect, there is no doubt that it would prove exceedingly serviceable in the collection of the public revenues ; and if the State interest alone were in question it might be a politic and useful statute.
But the public convenience is ,to be subserved in all cases, without disturbing the foundations of private security; and we must see whether these are respected by the act under consideration. To determine this we must have in mind the method provided for enforcing tax liens upon land. That method is to add together all the taxes for the year, with the interest or penalty for delay, and expenses of advertising and sale, and then to sell sufficient of the land to pay the aggregate sum. The competition of bidders is directed to "the. *569quantity of land that will be accepted for the sum charged against the whole parcel taxed, and the'lowest quantity which any one offers to take will be set off to him from the north end of the parcel. If therefore when only five dollars are lawfully due, ten dollars are charged, and the whole tract sold for the payment, it may well be said that the south moiety is unlawfully taken, because it is presumable that whoever would pay the whole sum for all the land would pay half the sum for half the land. No doubt there would be many cases in which this would not hold true; but no one could assume — certainly no court, as a foundation for legal judgment — that purchasers in bidding upon quantity would be wholly uninfluenced by the amount of the tax to be paid, and would demand the same quantity of land when a small sum was to be paid that they would if it were large. On the contrary there must be a legal presumption that the land demanded bears some proportion to the sum to be paid, and that when the amount is in part illegal, some portion of the land sold has gone to satisfy an illegal demand, and would not have been sold at all if only what was lawful had been called for.
It is said, however, that the illegality should not defeat the sale, because the power to sell sprung under the law from the delinquency in the payment of the legal tax, and the sale being made under lawful power, any irregularity or excess in its execution is not necessarily fatal, but may be cured, prospectively, or retrospectively, by legislation, as the statute in question attempts to do. But the lawful power is a power to sell so much only as is sufficient to pay such taxes as the law has authorized ; and no attempt has been made to execute such a power here. It is not a case of mere excess in the execution of the power by the officer entrusted with it; for the sum to be demanded was so made up that he could not, if he would, have offered to sell for the legal tax alone ; he must sell for the amount reported to him as due, and was powerless to confine the sale to the lawful tax and lawful charges, however willing he may have been to do so.
A plausible argument might be made in support of such a sale if the statute made suitable provision for a remedy in *570behalf of the party whose land is thus appropriated. In Connecticut it has been held competent to provide by statute that execution sales shall not be held invalid by reason of the officer having charged excessive fees, and included the amount in the sum for which sale was made. Beach v. Walker 6 Conn. 197 ; Booth v. Booth 7 Conn. 350 ; Welch v. Wadsworth 30 Conn. 149. But the officer in such case would be liable to the party wronged by the extortion, and what the party lost in property would be recovered in money. It has not been suggested that in this State there would be any corresponding remedy against the county treasurer, who is the officer by whom tax sales are made. In most cases he is in no way connected with irregularities and can have no knowledge of them; he receives a list of lands with the charges upon them, makes the sale and accounts for the money to the authorities apparently entitled to them; and when # he has done this, there is no ground for holding him liable for illegalities not chargeable to himself. Dickins v. Jones 6 Yerg. 483; Lincoln v. Worcester 8 Cush. 55; Crutchfield v. Wood 16 Ala. 702 ; Abbott v. Yost 2 Nenio 86. And there certainly could be no remedy against him in a case where the lands were struck off to the State for the want of bidders, as was the case here; for no money passed through the treasurer’s hands on State bids, and his connection with the case is limited to the entries he makes on his books, and to his returns to the Auditor-General. Upon these entries and returns no action could arise at the common law, and no statute has given one. The remedy, if any exists, must be found in following the illegal levy, and finding the person, officer or municipality by which the money obtained thereby was finally appropriated.
It is sometimes matter for serious regret that a court is compelled to declare a sale for taxes invalid where apparently no great injustice has been suffered; but when the necessity arises it is commonly because tax officers persistently disregard the limitations which are imposed by express statute upon their authority, hiere irregularities the courts may overlook, but they are powerless to sustain illegal action. In *571the case of Wilson v. McKenna 52 Ill. 43, it was said that a similar statute had long been a dead letter on the statute books of Illinois; but at last when some one claimed rights under it, it was held unconstitutional. See also Reed v. Tyler 56 Ill. 288. We find no escape from the same conclusion.
It is said with much truth that the owner of the land in these cases is entitled to no consideration, for he might have paid the legal tax and avoided the sale. But while this is true, it is also true and is notorious that tax delinquencies are often the result of accident or fortuitous circumstances; such as the death or disability of owners, errors in making or offering to make payment, neglects or omissions of officers, and so on. The purpose of the law is to make the sale of the land for the lawful tax and charges the sole penalty for the failure to pay, whether the failure is blameable or excusable. Equitable circumstances cannot come in to affect the sale, whether they operate one way or the other. If one by accident or misfortune loses the land, he is helpless ; if he defeats a sale because the official steps leading to it are in disregard of the law, the blame primarily should rest upon the officers themselves.
There is one fact having much to do with tax delinquencies which has hitherto received little attention, though deserving much. It is the heavy penalty that is imposed when payment is not promptly made. Were this penalty merely interest— even the highest interest individuals may take — nothing could be said against it; but twenty-five or fifty per centum is added in order to induce a more prompt payment into the State treasury; and this too at a time when the State treasury is overflowing. No doubt it has the effect intended in a great many cases, but it also fails in a great many, and the rapid accumulation, especially when some portion of the tax is illegal, becomes then a reason for refusing to pay at all. This is particularly the case when special taxes like those for drains, are laid; for these are generally heavy, and are not unfrequently laid in total disregard of the law. One who finds it impossible or inconvenient to pay such a tax when it comes due is not likely to be brought to the mind *572to do so by the addition of a penalty afterwards, and the larger the penalty the greater is his inducement to seek refuge in litigation. Ve have no doubt that much of the large accumulation of local taxes now carried by the State is due to excessive penalties; and so long as the State carries them, local officers are encouraged to make excessive levies for local purposes. They get the money even when the tax is illegal; the State carries the burden, and the owner contests his liability. However unwilling the courts may be to aid him, the heedlessness with which the several steps are taken in tax proceedings often leaves them no choice.
The judgment must be reversed with costs and a new trial ordered.
Campbell and Graves, JJ., concurred.*(1129) Sec. 163. “ No general or special tax authorized to be raised by tbe laws of this State, and which shall be assessed upon any property in any township or ward within the State, shall be held illegal or invalid for want of any matter of form in any matter or thing not affecting tbe merits of tbe case, and which shall not prejudice the rights of the party assessed; nor shall any sale of property for non-payment of the taxes thereon be invalid unless it shall be made to appear that the legal taxes, costs, and charges were tendered to the proper officers within the time limited by law for the payment of all such taxes; or, in case of the sale of real estate, unless it shall be made to appear that all legal taxes assessed *568■upon such real estate, together with all legal costs and charges thereon*, were tendered to the officer authorized to receive such redemption money, within the time limited by law for the redemption thereof; and all taxes assessed upon any property in this State shall be presumed to 'be legally assessed until the contrary is affirmatively shown; and no sale of real estate for non-payment of the taxes thereon shall be rendered invalid by-showing that any paper, certificate, return, or affidavit required to be made and filed in any office is not found in the office where the same-ought to be filed or found; but, until the contrary is proven, the presumption shall be, in all cases, that such certificate, paper, return, or affidavit was made and filed in the proper office.”