Dow v. State

J. H. Gillis, J.

(dissenting). I do not think the *111majority decision allies itself with modern reality and notions of fair play.

As Judge Learned Hand stated in Spector Motor Service, Inc v Walsh, 139 F2d 809, 823 (CA 2, 1943):

"It is always embarrassing for a lower court to say whether the time has come to disregard decisions of a higher court, not yet explicitly overruled, because they parallel others in which the higher court has expressed a contrary view. I agree that one should not wait for formal retraction in the face of changes plainly foreshadowed * * * .”

I have no such misgivings in the instant case, nor do I think we should wait for a long overdue retraction of principles no longer valid.

I do not deny that the statute for providing notice to defaulting property taxpayers has, in the past, withstood a similar constitutional attack as that made in this case. When the Justices of the United States Supreme Court, in Longyear v Toolan, 209 US 414; 28 S Ct 506; 52 L Ed 859 (1907), spoke of due process, they were dealing with events that occurred at the turn of the century. Lake Orion Heights, Inc v Oakland Circuit Judges, 285 Mich 512 (1938), stands on much the same footing. Had nothing occurred in the interim, I would have agreed with the majority in this case. However, it is time for a change in approach.

The basis for court jurisdiction in government tax foreclosures, and the reason personal service upon the owner of the land has not been required in the past, is that such proceedings have been conveniently characterized as actions in rem.

Actions in rem traditionally are viewed as proceedings directed against property rather than persons, the purposes of which are to determine *112the interests of all persons, known or unknown, in the res. The object of notice in an action in rem is not to secure jurisdiction over the body of a person, but to merely warn those interested in the property to appear and defend.

But what today is described as an action in rem differs conceptually from its Roman origin, to which it owes its name,1 and the original notion of our law that the res, or thing, itself occupied the position of the defendant. Commonly, we call proceedings in rem those actions which are, in reality, against persons but which seek to affect then-interests in property. Whatever label we choose to attach to the proceeding at bar, the central issue should be how the state is to proceed against defaulting taxpayers whose identity is known through government billing procedures. As Justice Frankfurter, dissenting in Vanderbilt v Vanderbilt, 354 US 416, 423-424; 77 S Ct 1360, 1365; 1 L Ed 2d 1456, 1462 (1957), wisely noted:

"Strictly speaking, all rights eventually are 'personal.’ For example, a successful suit in admiralty against a ship results of course not in loss to the ship but to the owner. The crucial question is: what is the fair way to proceed against these interests?”

While the theory expressed in Longyear, supra, that the owner of property always makes diligent inquiry into the status of his land, ever mindful of the possibility of foreclosure by the government should he fail, for any reason, to render to the state its due, has support in other cases of that era,2 recent developments mitigate against rote application of that "caretaker theory”.

*113The United States Supreme Court has since Longyear v Toolan, supra, and well after the decision in Lake Orion Heights, Inc v Oakland Circuit Judges, supra, decláred unconstitutional as violating due process, a New. York statute prescribing newspaper publication as the only form of notice even as to known and reachable nonresidents in a suit concerning the judicial settlement of a trust company’s accounts. That action was characterized as in rem. Mullane v Central Hanover Bank & Trust Co, 339 US 306; 70 S Ct 652; 94 L Ed 865 (1950). The "caretaker theory” showed a fundamental weakness in Covey v Town of Somers, 351 US 141; 76 S Ct 724; 100 L Ed 1021 (1956), an in rem tax foreclosure proceeding where notice by mail, publication, and posting to the defendant, known to be an incompetent person, was held insufficient. Obviously, an incompetent could not be held to the presumed knowledge implicit in the caretaker theory, but there are strong indications that the Supreme Court did not intend the Covey principle to be confined to its specific facts.

For instance, in Walker v City of Hutchinson, 352 US 112, 115, 116, 117; 77 S Ct 200, 202, 203; 1 L Ed 2d 178, 182, 183 (1956), a condemnation case, the Court stated:

"[Mullane v Central Hanover Bank & Trust Co, supra] establishes the rule that, if feasible, notice must be reasonably calculated to inform parties of proceedings which may directly and adversely affect their legally protected interests. * * *
"It is common knowledge that mere newspaper publication rarely informs a landowner of proceedings against his property.
*114"In too many instances notice by publication is no notice at all. "(Emphasis supplied.)

The majority opinion discards those decisions as irrelevant to the issue here before us. I can not. It is obvious the newspaper publication here employed did not give notice to anyone interested in the property. The implication in the majority opinion is that the caretaker theory is still valid even though it has no application to incompetent taxpayers or condemnation cases, or even tax assessment cases. See Wisconsin Electrical Power Co v Milwaukee, 352 US 948; 77 S Ct 324; 1 L Ed 2d 241 (1956). I fail to understand why the caretaker theory, if still valid at all, has had no application in other foreclosure actions as well.

Where a man’s automobile or color television set is at stake, due process requires notice and a prior hearing before a creditor is entitled to retake possession. Inter City Motor Sales v Judge of the Common Pleas Court for the City of Detroit, 42 Mich App 112 (1972); Fuentes v Shevin, 407 US 67; 92 S Ct 1983; 32 L Ed 2d 556 (1972). Presumably, an installment purchaser of chattels knows when he is in default just as the owner of real property knows when he hasn’t paid taxes. Both the chattel buyer and the real estate owner should be held to know that courts and creditors will deal with them in due course. I fail to see why debtors in personal property are entitled to "more due process” than the owner of real estate, whose "asset” will certainly not leave the state in some mysterious fashion on the eve of court action.

I recognize the state is entitled to speedy collection of tax revenues. I recognize that property owners are or should be aware of annual taxation *115and the consequences of default. But I also recognize that titleholders frequently pass responsibility for tax payments to land contract vendees or mortgagees and that such changes in assessments are noted by the local government records and assessment rolls. I see no reason why the local government should not send notice by mail to the parties last assessed according to its own billing procedures before sale of the property for back taxes. Certainly such a burden is not sufficiently substantial or costly to justify a lesser form of notice. By statute, notice forms are already made available. MCLA 211.61a; MSA 7.106. I would make it mandatory that such notice be sent. All such a holding would require is the use of a postage stamp.

I believe the majority’s reliance on Golden v Auditor General, 373 Mich 664 (1964), is misplaced. There, the plaintiffs unsuccessfully challenged the statutory requirements for notice of sale by publication. Careful reading of that decision reveals the government sent notice by mail to the party last assessed. I do not think the Golden rule is authority which would uphold the taking of real property in satisfaction of a principal debt of $35, with no prior notice to those legally or equitably interested, and with no attempt made to use the facilities of the post office, by equating an advertisement 11 picas wide in a newspaper whose valiant efforts total a circulation of 2,000 copies with personal service.

Consequently, with minor changes in the language of Judge Robert M. Toms, as quoted in Detroit Edison Co v Janosz, 350 Mich 606, 614 (1957), I relate that:

"[I] fervently [hope] the petitioners in this case will appeal [the] decision [of the majority] and that it will be *116promptly and definitely reversed by the Supreme Court in which event [I] will join a host of others in dancing in the streets.”

I vote to reverse.

Tyler v Judges of the Court of Registration, 175 Mass 71; 55 NE 812 (1900).

See e.g. Pennoyer v Neff, 95 US 714, 727; 24 L Ed 565, 570 (1878) ("property is always in possession of its owner”); and Ballard v Hunter, 204 US 241, 262; 27 S Ct 261, 269; 51 L Ed 461, 474 (1907) *113(owners usually keep informed "[o]f what concerns or may concern their real estate”).