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IN RE BARTENBACK.

[No. 1.

Vol. II.] notwithstanding that, her right of dower could be barred only by a sale under the power of sale contained in the mortgage, or a decree of a court of competent jurisdiction, where she could be made a party to the foreclosure proceedings, and not by a sale free of the mortgages, as was here proposed to be done. It was therefore necessary, and for the benefit of all concerned, to obtain the release, in order to a sale in this court, to the best advantage, and thus avoid the delay and expense of a foreclosure; and the court in fact refused to allow a sale without such release. That amount must therefore be apportioned to the parties interested, according to the amounts to which each is entitled to receive of the proceeds, after deducting, of course, all the other costs and expenses.

It results that the assignee must pay to the senior mortgagee, the Michigan Health and Relief Society, the full amount of its debt less its fair proportion of the one hundred dollars paid by the assignee for the release of dower, to be ascertained on the basis above indicated; that he must retain, or be paid out of the remainder of the proceeds, all costs and expenses of the proceedings to sell and of the sale, including the one hundred dollars paid for the release of dower, and pay over the surplus to the junior mortgagee.

3. The assignee's account of costs and expenses. There being no opposition, and the items appearing to the court to have been necessary, and that they are reasonable in amount, the account of the assignee of the costs and expenses of the proceedings to sell and of the sale is allowed as stated.

Let an order be made embracing the foregoing conclusions and results

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A legislative act which provides that on the failure of a township treasurer to make return of a tax warrant issued to him in the time therein provided, the county treasurer shall issue execution for the collection of the amount of the taxes from the township treasurer and his sureties, is not in violation of the fourth and fifth amendments to the federal Constitution; those amendments being restrictions only on the power of the federal government and not on that of the states.

Nor is it a violation of the provision in the state Constitution forbidding unreasonable searches and seizures; the searches and seizures contemplated by that provision being something very different from an open levy upon property under process having the apparent sanction of law.

Nor is it a violation of the provision in the state Constitution that no person shall be deprived of life, liberty, or property without due process of law.

Due process of law is not necessarily judicial process. Administrative process, which has been regarded as necessary in government and sanctioned by long usage, is as much due process of law as any other. And summary process to enforce the payment by a collector and his sureties of the taxes not returned by him, having been in use by express legislation both before and ever since the adoption of the Constitution, must be considered permitted by that instrument and be regarded as due process. But where the statute provides for the issue of such process by the county treasurer, and by law, and he could have no evidence of the collector's default beyond the presumption that the supervisor, who was to make out and deliver the tax warrant to the collector, had performed his duty, it is at least questionable if the process can be sustained.

Where the statute required the supervisor to deliver to the collector a tax roll with warrant attached, authorizing him to collect the same from the persons taxed, and then made the collector subject to summary process on his failure to make return in due season; it was held, that where the supervisor delivered a tax roll without any warrant attached, the collector was not subject to this process.

Held, further, that where the county treasurer's warrant failed to recite the facts which would warrant the issue of such summary process, and the proofs showed one jurisdictional fact did not exist, the process constituted no defence to the officer who executed it by seizure of property.

ERROR to Berrien circuit.

Messrs. E. Bacon & C. J. Walker, for plaintiff in error.

COOLEY, J. Bunbury sued Joseph W. Weimer and Samuel Hess in trespass for taking and carrying away certain livery stock in his possession and owned by him. The defendants, under their plea of the general issue, gave notice of the following facts in justification of the alleged trespass:

That in the year 1872 Thomas A. Bunbury was treasurer of the city of Niles; that the state and county taxes apportioned to said city for that year were as follows: $3,305.87 to the first and fourth wards, and $4,969.47 to the second and third wards; that on receiving notice of such apportionment said Thomas A. Bunbury as principal, with Edward Bun

Vol. II.]

WEIMER V. BUNBURY.

[No. 1.

bury and others as sureties, made, executed, and delivered to the defendant Samuel Hess, then and still county treasurer of the county of Berrien, a bond conditioned that said Thomas should duly and faithfully perform the duties of his office as such treasurer; and said county treasurer delivered to said Thomas receipts for said bond as required by law, one of which was delivered by him to William J. Edwards, supervisor of said first and fourth wards, and one to Rufus K. Charles, supervisor of said second and third wards; that after the delivery of such receipts to said supervisors, to wit, on the first Monday of December, 1872, they respectively delivered to said Thomas, as such city treasurer, a tax roll for their respective supervisor districts, with the said state and county taxes properly extended thereon, with warrants attached thereto commanding the said city treasurer to collect the said taxes, and pay over the same to the county treasurer on or before February 1, 1873; that said Thomas did not so collect and pay over, or render to said county treasurer any statement or account, except to the amount of $3,402.72, leaving $4,872.62 unpaid and unaccounted for; and the said county treasurer after demand, &c., issued the following warrant: "State of Michigan: County of Berrien. To the Sheriff of said county, Greeting: Whereas default having been made by Thomas A. Bunbury, city treasurer of the city of Niles in said county, in the payment to the county treasurer of the taxes apportioned to said city of Niles for the year 1872; and whereas there remains now due, unpaid and unaccounted for, the sum of $4,872.62; and whereas Edward Bunbury, Burton Jarvis, George W. Platt, Joseph C. Larrimore, and Joseph S. Tuttle became sureties on the official bond of the said Thomas A. Bunbury, as such treasurer, to Samuel Hess, the county treasurer of said county, and to his successors in office, for the payment of the taxes aforesaid: Now these are therefore in the name of the People of the State of Michigan to command you to levy the said sum of $4,872.62, together with your fees for collecting the same, of the goods and chattels, lands and tenements, of the said Thomas A. Bunbury, city treasurer as aforesaid, and of the said Edward Bunbury, Burton Jarvis, George W. Platt, Joseph C. Larrimore, and Joseph S. Tuttle, his said sureties, and to pay the same to me, the said county treasurer of said county, and return this warrant to me, within forty days from the date hereof, according to law in such case made and provided." Given under my hand at Berrien this 10th day of February, 1873, Samuel Hess, county treasurer." Which warrant was duly delivered to Joseph Weimer, who then was and still is sheriff of said county, and by virtue thereof the said sheriff did levy upon the property in question as the property of said Edward Bunbury.

On the trial, the plaintiff having proved the taking of the property, the defendants, to make out their justification, offered to prove the following facts:

1. That the supervisors of the city of Niles made out two assessment rolls as required by statute for the year 1872.

2. That the board of supervisors equalized the assessment rolls of the county, including the two from the city of Niles, and apportioned the state and county taxes to be raised thereon as required by law, and that such equalization and apportionment was duly certified, as directed by the statute, to the supervisors and the county treasurer.

Vol. II.]

WEIMER V. BUNBURY.

[No. 1.

3. That the supervisors of the city of Niles notified Thomas A. Bunbury, then the treasurer of said city, of the state and county taxes apportioned to the city of Niles, and this previous to the 15th of November, 1872, as required by law, and by the 25th of November, 1872, the treasurer gave bonds with approved sureties in double the amount of state and county taxes apportioned to said city, conditioned to perform the duties of his office, and that the plaintiff was one of the sureties upon said bond. 4. That this bond was filed with the county treasurer within the time limited by law, and receipts were given by him therefor, which receipts were delivered to the supervisors of the city of Niles.

5. That the supervisors of said city thereupon delivered to the city treasurer copies of the corrected assessment rolls, with the taxes duly spread thereon, one of which copies had no warrant attached thereto, but the other had a warrant, regular in form, attached thereto as the law requires.

6. That the city treasurer received these two rolls, and collected large amounts of moneys on each roll, but not the whole of the taxes on either roll.

7. That the amount of state and county taxes on the roll with the warrant attached was $3,305.87, and that on that without the warrant attached was $4,969.47; that on the 3d of February, 1873, there was paid to the county treasurer as collected upon the two rolls $1,646.39, and on the 4th of February, 1873, a further sum of $1,756.33.

8. That said city treasurer failed to make return of the taxes collected upon either of said rolls, except as above, by the 1st day of February, 1873, or within a week thereafter, and failed to make a statement as to the taxes paid upon said rolls or either of them, and of the delinquent taxes thereon as required by the statute, or to do anything else in relation thereto, and absconded from the state.

9. And that on the 10th day of February, 1873, the county treasurer, the defendant Hess, issued a warrant under § 1029 of Compiled Laws of 1871, for the sum of $4,872.62, against the city treasurer and the sureties. in his said bond, a copy of which warrant is appended to the notice of defence, that amount being the balance of the state and county taxes appearing on said rolls and not paid as aforesaid, a part of which balance has been collected and a part not; and upon this warrant the sheriff, the defendant Weimer, made a levy upon the property in question, advertised and sold the same as required by the statute, this being the trespass complained of.

To this offer the counsel for the plaintiff objected on the grounds: 1. That the statute authorizing the county treasurer to issue such warrant is unconstitutional and void; and 2. If the court should hold the statute valid, the facts did not justify the treasurer's warrant, inasmuch as one of the rolls was defective for the want of a supervisor's warrant attached thereto in compliance with the statute.

The circuit judge overruled the first objection, but sustained the second, and the plaintiff, under his instructions, had judgment against Weimer, but not against Hess.

Although the ruling upon the constitutionality of the statute was in favor of the plaintiff in error, the point is nevertheless in the case on this

Vol. II.]

WEIMER v. Bunbury.

[No. 1.

writ of error, since the justification depends upon the statute, and must fall to the ground if the statute is without validity. The question has therefore been argued at length by counsel, and various constitutional provisions have been pointed out with which the statute is supposed to conflict.

1. It is said to violate the fourth and fifth amendments to the federal Constitution. There is nothing in this objection. It is settled beyond controversy and without dissent that these amendments are limitations upon federal and not upon state power. Barron v. Baltimore, 7 Pet. 243; Livingston's Lessee v. Morse, Ib. 551; Fox v. Ohio, 5 How. 432; Smith v. Maryland, 18 How. 71; Purvear v. Commonwealth, 5 Wall. 475; Twitchell v. Commonwealth, 7 Wall. 321.

2. That it violates § 26 of art. 6 of the state Constitution, which prohibits unreasonable searches and seizures. In support of this some cases are cited, but they seem not to be in point. The searches and seizures which that provision of the constitution had in view were, we think, something quite different from an open and public levy upon property after the usual method of execution levies, and under apparent authority of law. Its main purpose was to make sacred the privacy of the citizen's dwelling and person against everything but process issued upon a showing of legal cause for invading it.

3. That it violates § 32 of art. 6 of the state Constitution, which declares that no person shall be deprived of his property without due process of law. This is the most serious objection, and in its consideration it will be necessary to have in view the particular provisions of the statute under which the treasurer's warrant was issued.

Under our revenue system the supervisors of townships and cities make an annual assessment of persons and property for the purpose of taxation. The auditor general apportions the state taxes among the counties, and transmits notice of the apportionment to the clerks of the boards of supervisors respectively. Comp. L. § 996. The supervisors determine the amount of county taxes, and apportion state and county taxes among the townships. Ib. § 997. The clerk of the board makes two certificates of the amount apportioned to each township and ward, one of which he delivers to the county treasurer, and the other to the proper supervisor. Ib. § 998. The supervisor proceeds to levy the taxes specified in the certificate; Ib. § 999; and on or before November 15, notifies the township or ward treasurer of the amount, who must, on or before the 25th of November, give bond to the county treasurer and his successors in office, with sureties, conditioned that he shall duly and faithfully perform the duties of his office. Ib. § 1000. For this bond the county treasurer gives a receipt; Ib. § 1001; which is presented to the supervisor, who thereupon delivers to the township treasurer a copy of the assessment roll, with the taxes all extended thereon, including not only the state and county, but also all township, school, highway, and special taxes, and with a warrant attached which shall specify particularly the several amounts, and the purposes for which said taxes are to be paid into the county and township treasuries respectively. Ib. § 1002. This warrant is to be under the hand, of the supervisor, commanding the treasurer to collect from the several persons named

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