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the taxable costs of the suit. This includes the taxes assessed for the year 1902. From this decree all parties have appealed.
Complainant asks that the amount required to be paid be diminished by the sum of $61.84, the amount of the taxes for 1902, plus $12.35, the interest thereon; in all, $74.29. He admits that he paid into court, before appealing, the sum called for in the decree. Defendants contend that because the tender which was made did not include money for the year 1902 which Hoyt had paid before the tender was made, and which he had been obliged to pay to protect his purchase for the tax of 1901, the sum tendered was too small. If, as we think must be conceded, the sum tendered to Hoyt was the sum required by the statute to be paid, either to him or to the register in chancery, to secure a reconveyance of the lands, the imposition of any greater burden in a suit brought to compel Hoyt to do what he ought to have done when the tender was made must be demanded, or excused, by equitable considerations. We think such considerations grow out of the fact that the payment of the 1902 tax inured to the benefit of the landowner, and was made by defendant Hoyt before the tender and before the time when the right of complainant's decedent to secure a reconveyance had expired, to protect the title which he already held. But equity requires no further sum to be paid by complainant. One who reads the record will conclude that these defendants were jointly interested in the purchase of tax titles on these and other lands, that the reconveyance did not in fact affect the interest of any of them as against the others, and that the knowledge possessed by one of them was possessed by all of them.
The decree is affirmed, without costs to either party, except that the cost of printing the record will be evenly divided between complainant and defendants.
BIRD, HOOKER, MOORE, and STONE, JJ., concurred.
NEWBERRY v. CITY OF DETROIT.
1. TAXATION - -SPECIAL ASSESSMENTS-PAVING-PARKS-MUNICIPAL CORPORATIONS.
Only properties owned by municipalities for governmental purposes are exempt from special assessments for public improvements.1
2. SAME DETROIT CHARTER-EXEMPTION OF PARK FROM SPECIAL ASSESSMENT.
A special assessment for paving a public street fronting on a park, under the charter of the city of Detroit, is invalid unless it is based on and includes the frontage of the park.
Error to Wayne; Murfin, J. Submitted November 16, 1910. (Docket No. 61.) Decided February 1, 1911.
Assumpsit by Helen H. Newberry against the city of Detroit for the amount of taxes paid under protest. A judgment for plaintiff on a verdict directed by the court is reviewed by defendant on writ of error. Judgment reduced and affirmed.
Walter Barlow (P. J. M. Hally, of counsel), for appellant.
Miller, Smith, Paddock & Perry, for appellee.
MCALVAY, J. This litigation arose on account of a claimed illegal paving assessment made by defendant against certain lots owned by the plaintiff, and abutting upon Edison avenue in the city of Detroit, to pay the cost of paving such avenue. Voigt Park occupies the entire block on Edison avenue, between Second and Third avenues. From the stipulated facts in the case it appears: "That on or about September 3, 1907, the common council of the city of Detroit passed a resolution
As to liability to local assessments for benefits of property exempt from general taxation, see note in 18 L. R. A. (N. S.) 451.
to pave Edison avenue, in said city, from Second avenue to Hamilton boulevard, and that the lots and parcels of real estate fronting the portion to be improved were declared to be and constituted the local assessment district. ** * That in and by said roll the whole cost of such paving was assessed against the lots fronting on said Edison avenue between Second avenue and Hamilton boulevard (except for the cost of paving the intersections of cross-streets) and no part of such costs were assessed against Voigt Park."
The stipulation shows that this was a public park, belonging to the park system of the city, fronting upon and extending along Edison avenue about 820 feet, and that the lots of plaintiff which abutted upon Edison avenue, as described in the declaration, were assessed in the sum of $8,446.96. Plaintiff on February 9, 1909, petitioned the common council to refer the assessment roll back to the board of assessors for revision and correction, because the whole cost of the paving was assessed against the lots, and no part against Voigt Park with a frontage of 820 feet, claiming that the park should be assessed, and that her assessment was out of proportion to the benefit conferred, and that the assessment roll was contrary to law. This petition was denied. Later, when the assessments had become payable and a lien upon these lots, plaintiff, under protest in writing, paid the sum so assessed in full, February 27, 1909. On March 2, 1909, she presented to the common council in due form her claim for the repayment to her of the sum of $8,446.96, the amount paid. This claim was denied. This suit in assumpsit was brought by her to recover that amount. At the close of the case both parties asked for an instructed verdict. The motion of plaintiff was granted, and a judgment was entered against the city in her favor for the full amount of the sum paid. The defendant upon a writ of error brings the case here for review, asking a reversal upon errors assigned.
The principal reason upon which defendant relied for a directed verdict in its behalf was
"Because Voigt Park was not assessable for paving Edison avenue, and that the property of the private parties fronting on said avenue so paved was properly assessed for the (entire) cost of said pavement.
This is the material question to be considered.
This assessment was made under authority of the charter of the city of Detroit, which reads:
"For the purpose of such assessment, the lots and parcels of real estate situated on said street, and fronting the portion thereof ordered to be improved, shall constitute one local assessment district;" * the cost and expense of the paving to be assessed according to frontage. Detroit Charter 1904, §§ 266, 267, pp. 182-184.
Defendant, admitting that the authorities apparently are not in harmony upon the material question presented, urges that, in those States where special assessments against real estate owned by municipalities are declared valid, there was constitutional or statutory provision authorizing such assessments, but that in this State there is no such authority, and that this court has so held in the case of City of Big Rapids v. Supervisors, 99 Mich. 351 (58 N. W. 358). It must be conceded, if that case decides all that is claimed for it, defendant's contention is correct. This court said in the opinion:
"The general tax law of the State exempts from taxation all public property belonging to the United States, to this State, or to any county, city, village, township, or school district within this State save lands purchased at tax sales and still held by the State. The Constitution of this State contains no provision upon the subject, and in this respect differs from the Constitutions of some of the States. *
* Aside from express exemptions there are also exemptions implied by law. Implied exemptions exist where property is owned and held by the State, its political subdivisons, and its municipalities for governmental purposes"-citing Cooley on Taxation (2d Ed.), p. 172.
This authority, which is relied upon in the foregoing extract from the opinion, in the same paragraph says: "But a municipal corporation may hold property,
not for governmental purposes, but for the mere convenience of its people," which the text-writer states has been held "not presumptively excluded from taxation when it is restricted to special assessments." From this we must conclude that the intention of the court was to be in harmony with the authorities cited, and that only properties owned by municipalities for governmental purposes were included in its holding as exempt.
Construing the language of the charter relative to assessments for paving, we do not find any exemption of public grounds. In cases which hold the extreme doctrine that no property of the State is exempt from special assessments, and also those which hold that certain properties belonging to the public are exempted by statute from taxation, the decisions are harmonious in holding that the exemptions apply "only to the taxes mentioned in the general tax law." This rule was recognized by this court in City of Big Rapids v. Supervisors, supra. We cite some of the leading authorities which favor the rule: Cooley on Taxation, §§ 458, 572, 573; City of San Diego v. Irrigation District, 108 Cal. 189 (41 Pac. 291, 35 L. R. A. 34, note); County of Adams v. City of Quincy, 130 Ill. 566 (22 N. E. 624, 6 L. R. A. 155); In re City of Mt. Vernon, 147 Ill. 359 (35 N. E. 533, 23 L. R. A. 807); Hassan v. City of Rochester, 67 N. Y. 528; Essex County v. City of Salem, 153 Mass. 141 (26 N. E. 431); New Orleans v. Warner, 175 U. S. 120 (20 Sup. Ct. 44). The great weight of authorities upholds this doctrine. In view of this rule, which was recognized, and the language of the opinion, we conclude that this court in City of Big Rapids v. Supervisors, supra, decided that in this State the exemption of municipal property from special assessments extended only to such property as is held for governmental purposes. The Voigt Park property was not so held by defendant.
The requirement of the law under which this assessment was made is that it must be according to the frontage upon Edison avenue. Detroit Charter 1904, pp. 182