BALL v. RIDGE COPPER CO.

1. TAXES-REVIEW-VALIDITY OF ROLL.

The failure of the board of review to enter the valuations of

the several parcels of land, as fixed by it, in the column of
the assessment roll prepared for that purpose, as required by
section 29 of Act No. 206, Pub. Acts 1893, does not invalidate
the tax, where it does not appear that any changes of valua-
tion were made by the board, in view of the further provision
that the roll as prepared by the supervisor shall stand as ap-
proved and adopted as the act of the board of review, except
as changed by vote of the board.

2. SAME-ENFORCEMENT-EFFECT OF DECREE.

A valid decree in proceedings for the sale of land delinquent for taxes forecloses all questions as to the validity of the assessment.

3. SAME CONSTITUTIONALITY OF ACT-DUE PROCESS OF LAWNOTICE.

The tax law of 1893 is not unconstitutional as depriving persons of their property without due process of law, in that it makes no provision for personal service of notice upon the delinquent taxpayer of the proceeding for the sale of his land, but, on the contrary, provides (section 66) that notice by publication shall be equivalent to personal service.

4. SAME-CONCLUSIVENESS OF DEED.

Nor is the whole act rendered void by reason of the provision therein (section 72) attempting to make tax deeds conclusive evidence of title.

5. SAME

RIGHT TO JURY TRIAL-WRITS OF ASSISTANCE. Nor is the constitutional right of trial by jury violated by the provision of the act (section 72) authorizing the court to put the purchaser in possession of the premises by writ of assistance.

6. CORPORATIONS-WRITS OF ASSISTANCE-DEMAND OF POSSESSION. A demand for the possession of land, made upon the agents of a corporation who are in the actual occupancy thereof, is a sufficient foundation for an application for a writ of assistance as against the corporation.

Appeal from Ontonagon; Haire, J. Submitted January 27, 1898. Decided July 18, 1898.

Petition by J. Everett Ball against the Ridge Copper Company for a writ of assistance. From an order granting the writ, respondent appeals. Affirmed.

Ball & Ball (M. J. Sherwood and Dan H. Ball, of counsel) for petitioner.

Clark & Pearl, for respondent.

LONG, J. A petition for a writ of assistance was filed by J. Everett Ball in a proceeding by the auditor general of the State in the Ontonagon circuit court, in chancery, for the sale of certain lands delinquent for taxes. Respondent answered the petition, and, after a hearing in that court, an order was made directing that the writ of assistance issue. Respondent appeals.

It appears that the lands were bid in by the State in December, 1895; and in February, 1897, the auditor general executed and delivered to the petitioner deeds for the lands. Demand of possession was made upon the parties in possession of the lands by the petitioner, and, upon the refusal to surrender, this petition was filed. Respondent answered the petition, and by the answer claimed:

(1) That the court had no jurisdiction to enter the decree of sale, for the reason that there was no completed assessment roll, as it was not reviewed by the board of review of the township, as required by the statute; that there was no proper certificate attached, and no entry of values by the board in separate columns.

(2) That the tax law of 1893, under which the lands were sold, is unconstitutional, in that it provides for no personal service of notice upon the landowner of the proceeding for the foreclosure of the tax lien, which results in a decree and sale of the land, thus depriving the owner of his property without due process of law, contrary to the provisions of the fourteenth amendment to the Constitution of the United States; and also that it is unconstitutional for the reason that it provides that the tax deed shall be conclusive evidence of title in the tax purchaser.

(3) That the act is also unconstitutional in so far as it provides for the granting of a writ of assistance to the purchaser of the tax title, as it deprives the owner of the right to try the title to his land before a jury in an action of ejectment.

The questions will be discussed in the order stated in the answer.

1. Section 29, Act No. 206, Pub. Acts 1893, provides for a meeting of the board of review in each township on the Tuesday next following the third Monday of May in each year; that the supervisor shall submit to the board his assessment roll, and the board shall examine and review the same. The board is given power, on sufficient cause shown, to add the names of persons to the roll; also, the values and descriptions of personal and real property liable to assessment, which has been omitted. It may also correct errors in names and descriptions of property. This section then provides:

"The board shall pass upon each valuation and each interest, and shall enter the valuation of each, as fixed by it, in a separate column. The roll as prepared by the supervisor shall stand as approved and adopted as the act of the board of review, except as changed by a vote as herein provided."

Section 30 provides:

"After said board shall complete the review of said roll, a majority of said board shall indorse thereon and sign a statement to the effect that the same is the assessment roll of said township for the year in which it has been prepared and approved by the board of review."

An abstract of the assessment rolls for 1892 and 1893 is contained in the record. In each of these years the columns for the valuations fixed by the board are left blank. There is a certificate attached to each roll, and signed by the members of the board of review, in the following form:

"Assessment roll for the township of Greenland, county of Ontonagon, and State of Michigan, for the year 1892 [and 1893], as approved by the board of review."

There is nothing upon either roll showing that the board of review made any changes in the roll by adding to or striking from the roll. Inasmuch as the statute provides that "the roll as prepared by the supervisor shall stand as approved and adopted as the act of the board of review, except as changed by a vote as herein provided," and there being no figures in the columns which are prepared for such changes, the presumption follows that no changes were made by the board, and hence there was no necessity to insert any figures in such columns. Chamberlain v. City of St. Ignace, 92 Mich. 335. But, in any event, that question was foreclosed in the auditor general's proceedings in which the decree was entered. Muirhead v. Sands, 111 Mich. 487.

2. Section 62 of the act provides that, on the filing of the petition by the auditor general, the court shall make an order fixing a day for hearing, etc. Section 66 provides that this petition and order shall be published at least once in each week for four successive weeks next prior to the time of hearing, and further provides:

"The publication of the order and petition aforesaid shall be equivalent to a personal service of notice on all persons who are interested in the lands specified in such petition of the filing thereof, of all proceedings thereon, and of the sale of the lands under the decree, and shall give the court jurisdiction to hear such petition, determine all questions arising thereon, and to decree a sale of such lands for the payment of all taxes, interest, and charges thereon."

It appears that the respondent is a resident corporation, and was in possession and occupancy of the lands in controversy here.

It was said in Muirhead v. Sands, supra, that

"The statute makes the publication the equivalent of personal service, and it is therefore the duty of the owner to watch the proceedings provided for by the statute for the foreclosure of the lien, and interpose any objection he may have to the validity of the tax. The purpose of the statute is to give every person his day in court, in an equitable proceeding."

This case followed the rule of this court in Cole v. Shelp, 98 Mich. 58, and In re Wiley, 89 Mich. 58. Inasmuch as counsel have reargued that question in their briefs, we have re-examined it, and are satisfied that the ruling heretofore made must be adhered to. Judge COOLEY, in the second edition of his work on Taxation (page 527), speaking of the proceeding to enforce the payment of the tax upon land, and of its nature, says:

"Proceedings of this nature are not usually proceedings against parties; nor, in the case of lands or interests in lands belonging to persons unknown, can they be. They are proceedings which have regard to the land itself, rather than to the owners of the land; and if the owners are named in the proceedings, and personal notice is provided for, it is rather from tenderness to their interests, and in order to make sure that the opportunity for a hearing shall not be lost to them, than from any necessity that the case shall assume that form. As in all other cases of proceedings in rem, if the law makes provision for publication of notice in a form and manner reasonably calculated to bring the proceedings to the knowledge of the parties who exercise ordinary diligence in looking after their interests in the lands, it is all that can be required."

Two years before the above work was written, Mr. Justice COOLEY, in the State Tax-Law Cases, 54 Mich. 362, had said:

"The first objection made to the statute is that it makes no provision for personal service on resident owners of land. We think this objection without force; but, in view of the necessary length of the opinion, we pass it without discussion, for the reason that the respondent, by filing demurrer, has put itself in a position which precludes the raising it."

In Pennoyer v. Neff, 95 U. S. 714, the distinction is clearly drawn between actions in which the notice must be personal and those in which it may be by substituted service, as by publication, and it is said: "Such service [substitutive] may answer in all actions which are substantially proceedings in rem." This rule was also recognized and followed in Francis v. Grote, 14 Mo. App.