FLETCHER PAPER CO. v. CITY OF ALPENA.

TAXATION REMEDY OF TAXPAYER - BOARD OF REVIEW - ExHAUSTING REMEDIES-ILLEGAL TAX-ASSESSMENT.

Before resorting to the courts to recover taxes on the theory that property of another was fraudulently omitted from the tax roll or undervalued, the taxpayer must exhaust the remedies given him by law, as appearing before the board of review and complaining that other property was assessed too low, or omitted from the roll; so that plaintiff in such action to recover taxes paid under protest was estopped by failure to make timely objection before the board of review to which he appealed, but at the same time stated that he did not care to attack the undervaluation of corporate property of another taxpayer. BROOKE, STEERE, and MOALVAY, JJ., dissenting.

Error to Alpena; Emerick, J. Submitted June 17, 1912. (Docket No. 101.) Decided October 1, 1912.

Assumpsit by the Fletcher Paper Company against the city of Alpena for the recovery of taxes paid under protest. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error. Affirmed.

Henry, Henry & Henry, for appellant.

F. D. Scott, for appellee.

STONE, J. This is an action of assumpsit to recover from the defendant a judgment for a portion of the taxes assessed against the plaintiff's property, and which it paid involuntarily in the city of Alpena for the year 1910, because and for the alleged reason that the real property of the Huron Portland Cement Company was, by the assessing officer of the city, and the board of review, assessed at the sum of $150,000, whereas the fair cash value of said. property was $1,250,000; it being the claim of the plain

tiff that there was a wilful and intentional undervaluation and assessment of the real property of the said Huron Portland Cement Company for the year 1910. It developed on the trial of the case that Frank W. Fletcher, the president of the plaintiff, appeared before the board of review at its June session in 1910, and had knowledge at that time of the action of the assessing officer concerning the amount at which the plaintiff's property was to be assessed for the year; that he there stated that he supposed that the other property in the city, including his own mill property, was assessed at 50 per cent. of its valuation, and that to his own knowledge this really extended to the other manufacturing plants in the city of Alpena, with the possible exception of the Huron Portland Cement Company, but that he did not desire to interpose any objection against its assessments, or discuss the matter before the board, stating that he was not there to discuss the Huron Portland Cement Company. It further appeared with reference to the Huron Portland Cement Company's real property that prior to bringing before the board of review the matter the city attorney was instructed by the board to see Mr. Fletcher, and notify him that the assessment of the real and personal property of the Huron Portland Cement Company was to be considered by the board, and to ascertain if he desired to appear before the board or make any objection to its personal assessment, as made by the comptroller. It further appeared upon the trial that about 2 o'clock p. m. of June 10, 1910, the city attorney called upon Mr. Fletcher, and informed him that the representatives of the Huron Portland Cement Company had been called before the board, in order to assist the board in arriving at a conclusion as to the proper assessment of the Huron Cement Company property within the city of Alpena, and asked Mr. Fletcher if he desired to appear before the board relative to the Huron Cement Company assessment; that Mr. Fletcher informed the city attorney that he did not desire to appear before the board on the Huron Cement

Company matter, which information was duly conveyed to the board while in session. That there may be no doubt of the correctness of the foregoing statement, we quote the following from the brief of plaintiff and appellant:

"It further appears from the record that Mr. Fletcher stated to the board of review that he was not there for the purpose of discussing the value at which the Huron Portland Cement Company's property should be assessed, stating that he had no desire to interpose any objection against any of their assessments or to discuss the same."

The charter of the city of Alpena provides for a board of review and its duties, as follows:

"The comptroller and senior supervisor of each ward in said city, and city attorney, shall constitute a board of review, three of whom shall form a quorum. They shall have power and it shall be their duty to examine said assessment and correct any errors found therein; and, on cause shown, to reduce, equalize or increase the valuation of any property found in said city rolls, and to add thereto. any taxable property in said city that may have been omitted, and to value the same. They shall meet at such time and place as shall be appointed by the common council, of which time and place notice shall be given by said council at least two weeks prior to the time of meeting by publishing a notice thereof in some newspaper published in said city, and also by posting same in three public places in each ward of said city, and shall continue in session at least three days successively, and as much longer as may be necessary, at least six hours in each day during said 3 days; and any person desiring so to do, may examine his or her assessment on said roll, and may show cause, if any, why the valuation thereof should be changed; and the said board shall decide the same and their decision shall be final; and said board shall keep a record of their proceedings and all changes made by them in said roll, and their records shall be deposited with the recorder."

Before the plaintiff had concluded its case and submitted all of its proofs, the trial judge directed a verdict for the defendant. Before doing so, however, the court offered to allow Mr. Fletcher or the plaintiff to vary or

qualify Mr. Fletcher's statement to the board of review, as testified to, and upon that point counsel for plaintiff and appellant say in their reply brief:

"The court was eminently fair in offering to permit us to show that Mr. Fletcher did not do and say what was claimed he did and said, before the board of review."

The direction of the verdict for the defendant in this case was as follows:

"The plaintiff cannot recover in this case by reason of something that does not appear to be in dispute. If it is in dispute, that can be litigated. I will tell you what I mean. There is nothing any better settled in Michigan than that a man cannot complain in the courts of his own assessment, unless he has exhausted the remedies given to him in reference to such assessment at the board of review. * If he fails to appear at the board of review, or, if being there, does not remonstrate, and pursue in that tribunal to have his own assessment corrected, he is forever foreclosed from remedy in the courts."

The court then cited the cases of Petoskey, etc., Gas Co. v. City of Petoskey, 162 Mich. 447 (127 N. W. 345), and Traverse Beach Ass'n v. Twp. of Elmwood, 142 Mich. 297 (105 N. W. 768), and proceeded:

"These authorities state the doctrine that a man cannot pursue any remedy in court at all in regard to the assessment of his property, unless he has first exhausted his remedy which the law has given him before the tribunal created for the express purpose of determining the assessment of property. Now, this is not just exactly that proposition; but here was Mr. Fletcher, the president of the Fletcher Paper Company, before this board on the 10th day of June. He was there for the purpose of protecting his company in regard to the assessment of their property. He was also representing, at the same time, the Alpena Power Company, and for the purpose of making a showing before that board he made these statements that have been put in evidence here. He made the statement that the property of the city was generally assessed, the manufacturing property, at half its value, with the exception of the property of the Huron Cement Company, showing that he knew what the assessment was as made at that

time, as it stood then, but that he did not wish to criticise that, nor to object to it. I cannot give just the exact words. * * Now, I say, that shows that Mr. Fletcher was fully apprised of what the assessment of the Huron Portland Cement Company was at the time; and the effect of that to him, if it was too low, was just the same as if his property was assessed too high; and it was his duty, in good faith to the board, and it was his duty under the law, to then and there protest against that assessment, or, being silent then, when he ought to have complained, he will not be heard to speak in the court now." Thereupon the court directed a verdict for the defendant, and judgment followed.

The case has been brought here by the plaintiff upon writ of error, and the assignments of error raise the question as to whether the court erred in directing the verdict for the defendant for the reasons stated. We think the only question presented by the record is whether or not the plaintiff is estopped from claiming a remedy in the courts for the alleged unequal assessment of its own property as compared with the property of its neighbor under the circumstances as disclosed in this record. It is well settled by the repeated decisions of this court, covering a period of more than 30 years, that the board of review is the constituted tribunal for the correction of unjust or unequal assessments, and that a taxpayer who is subject to the board's jurisdiction, and fails to make his appeal to that tribunal, cannot later appeal to the courts for redress. The board of review is a tribunal provided by law in which the taxpayer may appear and contest an unequal or excessive assessment; and his failure to so appear estops him from assailing the assessment afterwards. Here it is undisputed that the president of the plaintiff understood the situation, and had an opportunity to be heard. The case is a stronger one for the defendant than it would be if the plaintiff had not appeared before the board of review. Having appeared before that tribunal, it was his duty to complain, if he had any complaint to make, of any antecedent fraud of the assessing officer. Traverse