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SCHEDULE H.

OPINIONS.

School law-Uniform text-book act-Construction of certain provisions.

ATTORNEY GENERAL'S OFFICE,

July 14, 1898.

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HON. JOHN F. WIDOE, Hart, Mich:

MY DEAR SIR-Your favor of 12, inst., referring to the Uniform Text-book act, and requesting a construction of certain of its provisions, at hand and contents noted.

In answer thereto, I would say that as I understand the question upon which you desire information, it is this: In voting at a district meeting upon the question of "not to come under" the provisions of Act. No. 198 of the Public Acts of 1897, is a majority of all the votes of the qualified voters of the district required, or is a majority of all those present and voting, sufficient?

The language of the proviso, found in section 8 of that act, seems to settle the question. The Uniform Text-Book Act (198 of 1897) applies to, and the books selected by the commission provided for therein are to be uniformly used in, all of the common and primary schools of the State, except in those districts now furnishing or hereafter voting to furnish free text-books, and those which shall vote not to come thereunder. The vote "not to come thereunder," is taken pursuant to the proviso of section 8 above referred to, which is as follows:

"And provided further, That the provisions of this act shall not be mandatory on any district, which shall at any annual, special or general election during the years eighteen hundred and ninety-seven and eighteen hundred and ninety-eight determine, by a majority vote of the qualified electors of said district voting on the subject, not to come thereunder." The language "a majority vote of the qualified electors of said district voting on the subject," is decisive of the question of whether a majority of all the voters of the district is required, or simply a majority of those present and voting; and, under that language, simply a majority of those present and voting, is required. Thus, if, in the district to which you refer, 180 qualified voters attended at the school meeting, and 100 voted not to come under the law of 1897, and 80 voted to come under that law. the result of the vote would be to place the district outside of the law of 1897, as the votes "not to come thereunder," would be a majority of the votes cast by those "voting on the subject."

Yours respectfully,

FRED A. MAYNARD,
Attorney General. .

State tax lands-Homesteader's title-"More than three years"-Construction of.

On examination of Sec. 127 (Act 206, P. A. 1893), the words "more than three years" should be construed as meaning four years or more, and that sales for the taxes of at least four years are required; and in case any one of the sales is valid, the homesteader acquires a good title.

ATTORNEY GENERAL'S OFFICE,

July 15, 1898. }

HON. WILLIAM A. FRENCH, Commissioner State Land Office, Capitol, Lansing:

MY DEAR SIR-I have before me your communication of recent date, requesting my opinion as to the proper construction to be placed upon the words "more than three years," found in Section 127 of the General Tax law (Act 206, P. A. 1893), and presenting for consideration the question: Can the State give a homesteader a valid title upon a description of land which was bid off to the State at the tax sales in May, 1891; May, 1892; May, 1893, and December, 1893?

In compliance with your request I would say that after a careful examination of the provisions of Section 127, I have reached the conclusion that the words "more than three years," found therein, taken in connection with the rest of the section, should be construed as meaning four years or more. Section 127 provides, in part, as follows:

"Whenever it shall hereafter appear that any lands delinquent for taxes have been bid off to the State for a consecutive period of more than three years, and that no application has been made to redeem or purchase the same," etc.

The question presented by you, as I understand it, has arisen from a contention that three sales to the State were sufficient to bring a description of land within the purview of this section. If the legislature had intended the sales of three years to be sufficient to bring the case within the provisions of Section 127, it would have said so, and have omitted the words "more than," immediately preceding the words "three years." As the case actually stands, the legislature has used the words "more than," and applying the well-known principle of statutory construction that "every word employed in a statute has some force and meaning, and was made use of for some purpose," but one conclusion is possible, and that is, that the words under consideration mean, as above stated, four or more years, and that sales for the taxes of at least four years, are required:

Potter v. Safford, 50 Mich. 46;

Van Cleve v. Van Fosson, 73 Mich. 342.

As to the case stated upon which you desire my opinion, I would say, that the sales of May, 1891, May, 1892, and May, 1893, took effect before Act No. 206 of the Public Acts of 1893 went into effect; and the sale of December, 1893, took place after that act went into effect and pursuant to its provisions. We, therefore, had three sales prior to the taking effect of the act of 1893, and one since, which constitute the sales for the taxes of the four years sufficient to bring the case within the provisions of said Section No. 127. Such being the case, it follows, that all

tax lands in relation to which such a state of facts exist are properly deeded by the Auditor General to the State; and if any one of the four sales is valid, the homesteader acquires a good title.

Yours respectfully,

FRED A. MAYNARD,

Attorney General.

Tax law-Construction of—Delinquent Taxes of 1894-Payment of 1895 and 1896 taxes precedent to Receiving Deed Notice-Kind and How Served.

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MY DEAR SIR-I have before me your communication of recent date, requesting my opinion as to whether: (1) A person purchasing lands for the taxes of 1894 delinquent thereon and required by law to pay the 1895 and 1896 taxes as a condition precedent to receiving a deed, would, under Act 229 of 1897, be entitled to demand 100 per cent upon the full amount paid, i. e., The amount paid for 1895 and 1896 taxes, in addition to the amount paid for the State's interest for the 1894 taxes, from the person in interest desiring a reconveyance of the lands purchased; and also (2) What notice, if any, must be served where there appears of record no mortgage, and the person who holds the last recorded deed cannot be found?

On the first question presented, I would say that the construction to be placed upon any statute depends entirely upon the intent of the legis lature in enacting it, and that intent is to be determined from the words which the legislature has actually used. In this case, I find in the form of notice prescribed in Section 140 of the act referred to the provision that the original owner or mortgagee of lands sold for taxes, is entitled to a reconveyance of the same at any time within six months after service of that notice "upon payment of all sums paid upon such purchase, together with 100 per cent additional thereto, and the fees of the sheriff for the service of this notice, to be computed as upon personal service of a declaration as commencement of suit, and the further sum of five dollars for each description, without other additional costs or charges."

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In Section 141, it is provided that the owner or mortgagee of lands sold for taxes is entitled to a reconveyance of the same at any time within six months after service of the prescribed notice "upon payment to the grantee, under such tax deed, of the amount paid upon such purchase, together with 100 per cent in addition thereto."

Under Section 84 of the General Tax Law, in order for any person to purchase any State tax lands or any State bids, he must pay therefor the amount for which the same were bid off to the State, with interest on the same at the rate of 8 per cent per annum from date of sale, together with the other taxes remaining a lien upon such lands at the time of the purchase so made, with interest thereon. Under the provisions of the section last referred to, a person purchasing the State bid upon

any lands for the taxes of 1894 would be required to pay not only the amount for which the same was bid off to the State, with interest thereon, but also all subsequent taxes remaining a lien upon such lands at the time of the purchase, as a condition precedent to receiving a deed conveying the interest of the State to the purchaser. The law makes no distinction between the amount paid for subsequent taxes and the amount paid for the State bid. Both are placed upon the same footing and required by the same law to be paid: (Hughes v. Jordan, decided July 18, 1898), and it follows, as a necessary conclusion from the language above quoted from said Act No. 229, that the purchaser of tax lands is entitled to the return of the full amount required to be paid by him at the time of purchase, whether the same be for the State bid or for the subsequent taxes remaining a lien on the lands purchased, together with 100 per cent in addition thereto, as a condition precedent to his making reconveyance of the land to the person entitled thereto.

As to the question of how notice can be served where there appears of record no mortgage, and the person who holds the last recorded deed cannot be found, I would say that the statute makes provision for but two kinds of notice. One of those is a personal notice, which must be personally served upon the owner, as appears by the last recorded deed, and upon the mortgagee, if any, as appears by the last recorded mortgage, where such person or persons are residents of the State.

The other kind of notice provided for is a substituted service by registered mail, for cases where the persons required to be served, or either of them, are non-residents of the State. No provision is made for substituted service by publication or otherwise, in cases where the owner or mortgagee cannot be found.

The proceedings and the notices required by Act No. 229 are purely statutory; and the rule of law in such cases is, that a special statutory proceeding cannot be extended to include any cases not clearly within its provisions. It follows, therefore, that notice can be given only in the manner and in the cases which are expressly or by necessary implication, provided for by the statute. No provision being made by the legislature for notice to persons who cannot be found, no such provision can be imported into the statute by construction.

And, as no writ of assistance or other process for the possession of land the title to which has been obtained under and in pursuance of a tax sale, made since the taking effect of said Act 229, can issue until the notice provided for in the statute has been given, it necessarily fol lows that in those cases in which notice cannot be given, no writ of assistance or other process for the possession of the land can issue. The statute, it seems to me, should have made provision for notice, not only for a few specified cases, but in all possible cases which might arise. It has not done so, and the only relief is with the legislature.

Yours respectfully,

FRED A. MAYNARD,
Attorney General.

Insane person-Expense of transporting outside of State audited and allowed by the Board of State Auditors.

ATTORNEY GENERAL'S OFFICE,
July 25, 1898.

HON. BOARD OF STATE AUDITORS, Capitol, Lansing:

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GENTLEMEN-In reply to your communication bearing date June 30, 1898, requesting my opinion as to whether Voucher No. 4536 of J. K. Judd, constitutes a claim against the State under Act No. 178 of the Public Acts of 1897, I would respectfully say, that I am of the opinion that that voucher does constitute a claim against the State under said act, which it is proper for your board to examine and allow if it finds the services to have been rendered and disbursements made as therein stated.

The bill of Mr. Judd is for expenses in transporting from the State, one William Allen Parmeter, who came to Pontiac in this State, from Chicago, Illinois, and after residing there about seven months became violently insane.

Act No. 178 provides, "that any person who is old, sick, infirm, blind, crippled, idiotic, epileptic, insane, or otherwise incompetent to earn a livelihood at the time of such persons' entry into any county, city, village, or township in this State, or any person being otherwise competent who has not maintained himself or herself for one year after such entry, shall not be entitled to admission into any of the State asylums, or county asylums, or alms houses at the expense of the State, or the county, city, village or township aforesaid, or to receive public relief of any nature excepting such temporary care or relief as such person may require pending the return of such persons back to the county where such persons were last contiuously settled for one year," and that where such person comes from without the State, transportation and necessary attendance shall be furnished, the expense of the same to be allowed by the board of State Auditors, and paid by the State. The person transported from the State in this instance, comes within the class of persons who, though competent to earn a livelihood at the time of the entry into the State, has not maintained himself for one year after such entry. The words, "any person being otherwise competent," are intended to refer to the conditiou of the person at the time of entry into the State, and if a person competent to earn a livelihood at the time of entry into the State, subsequently and before the expiration of a year after the time of such entry, becomes incompetent to earn a livelihood, he would not be entitled to admission into any of the State asylums or other benevolent institutions of the State, but would be required to be transported to the place from which he came, the transportation to be at the expense of the State.

As to the proof of insanity required, I would say that the question of insanity is one of fact, and must be established to the satisfaction of your honorable body.

Yours respectfully,

FRED A. MAYNARD,
Attorney General.

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