Triangle Land Co. v. Auditor General

Brooke, J.

Relator prays that a writ of prohibition issue against respondent prohibiting him from issuing a certificate of error, and canceling a certain tax deed. The facts set up in the petition are summarized by counsel for relator as follows:

“ At the regular county tax sale the property in question was bid in to the State in May, 1904. Mary F. Wright purchased from the State, and obtained tax deed dated June 1, 1905. Mary F. Wright on December 23, 1905, caused to be personally served the statutory tax notice for reconveyance on John C. Ryan, who was then the grantee in the last recorded deed in regular chain of title, and the notice with return of service thereon was filed with the county clerk December 27, 1905. Mary F. Wright quit-claimed to petitioner November 29,1909; the tax deed and quitclaim deed being recorded February 21, 1910. Petb tioner made demand for possession December 15, 1909, of John O. Ryan and Cora Ryan, who were in possession of the property, and the possession was refused by said parties.

“On March 31,1911, petitioner filed declaration as commencement of suit in ejectment, copies of which were on April 5, 1911, served on the defendants John C. Ryan and Cora Ryan. Said suit in ejectment is awaiting its turn for trial on the present Saginaw circuit court calendar. On March 31, 1911, petitioner had recorded and filed a lis pendens covering said lands. No amount was ever paid or deposited for a reconveyance, nor any action whatever taken to contest the tax sale until May 10,1912.

“ On May 10, 1912, application to the auditor general, *291 Oramel B. Fuller, was made by R. L. Crane for certificate of error and cancellation of said tax sale and tax deed in name of John C. Ryan and Cora Ryan, and a statement of an ex county treasurer was submitted to the auditor general as proof that application to pay the tax had been made to the county treasurer more than 15 years before the date of the statement. On May 16, 1912, petitioner exhibited to auditor general said tax deed, certified copy of tax notice filed, abstract of title and affidavit of demand for possession and refusal, but the auditor general, against request of petitioner, stated his intention to issue the certificate of error and cancellation.”

The only reason urged by relator in its petition why said writ should issue is that:

“If the auditor general carries out his threatened action, your petitioner will be irreparably injured and without a remedy.”

We are of opinion that relator has mistaken its remedy. The writ of prohibition is an extraordinary judicial writ ordinarily directed to an inferior judicial tribunal, or to an inferior ministerial tribunal possessing incidental judicial powers, and known as a “quasi judicial tribunal.” In extreme cases.it is said it may issue against a purely ministerial body, commanding it to cease abusing or usurping judicial functions. The restraining of acts of an administrative or ministerial character is not within the province of the writ. 32 Cyc. p. 598 et seq.

It will not issue where the petitioner has a complete and adequate remedy by some other proceeding. Port Huron Sav. Bank v. St. Clair Circuit Judge, 147 Mich. 551 ( 111 N. W. 202 ). In a contest between the commissioner of the State land office and the auditor general ( 131 Mich. 147 [ 91 N. W. 153 ]) the writ was issued. The question of the propriety of the remedy, however, is not discussed in the opinion. That the validity of the certificate of error, which the respondent proposes to issue, may be questioned in the ejectment proceedings now pending in which relator is plaintiff, is, we think, clear. Vetterly *292 v. McNeal, 129 Mich. 507 ( 89 N. W. 441 ). In our opinion this writ should not issue to control the acts of a purely ministerial officer.

The writ is denied.

Moore, O. J., and Steers, McAlvay, Stone, Ostrander, and Bird, JJ., concurred.