Guthrie v. Pittsburg Dry Goods Co. , 47 Pa. Super. 384 ( 1911 )

Opinion by

Henderson, J.,

The tax which is the subject of the pending controversy was assessed pursuant to the provisions of the thirty-second section of the Act of April 29, 1844, P. L. 486, which so far as relates to the taxation of real estate is as follows: “From and after the passage of this act all real estate, to-wit: Houses, lands, lots of ground, and ground rents, mills and manufactories of all kinds, furnaces, forges, bloomeries, distilleries, sugar houses, malt houses, breweries, tan-yards, fisheries and ferries, wharves and all other real estate not exempt by law from taxation shall be valued and assessed and subject to taxation for the purposes in this act mentioned and for all state and county purposes whatsoever.” A subsequent portion of the act describes the classes of personal property which are subject to assessment. That the property owned by the defendant was real estate is not open to question. It consisted of land and a building. Whether it contained any machinery belonging to the defendant is not disclosed in the affidavit of defense the averment being that the improvements and machinery enumerated as part of the property in the return of the assessor belonged to the tenant and was therefore improperly included in the valuation of the real estate. That the assessment is and was intended to be the assessment of real estate is obvious. While the property might have been valued in one item the integrity of the assessment was not affected by the fact that the assessor enumerated the elements entering into the aggregate of the valuation and placed a separate value on each. If the assessment had been of land and a building alone with a valuation on each, no one would pretend that the assessment was not against real estate, for the total of the items returned by the assessor and the inclusion of the machinery in the building as a part of that which composed the real estate and contributed to its value must be regarded as bringing it within the category of realty for purposes of taxation. From the point of view of the taxing authorities the property assessed constituted a manufactory. It had all the features and qualities of that kind of real estate and it was evidently the intention of the legislature when providing for the assessment of such property that it should be regarded as an entirety. Mills and manufactories of all kinds are expressly enumerated among the things to be taxed as real estate and these necessarily include the machinery essential to the existence and operation of such establishments. When it became the duty of the assessor of the district to value and return the defendant’s property he saw land, a building and the machinery and appliances therein necessary to constitute a mill or factory. There was nothing to put him on notice that there was a division of ownership, and the presumption would be that the owner of the land and building was also the owner of the machinery therein, for the machinery was a constituent of the property to be taxed. That the establishment was a woolen factory is not denied and the machinery was as much a part of the factory as the building which inclosed it. The duty of the assessor was plain, therefore. He found the defendant to be the owner of a plot of land on which a building used for the manufacturing of woolen goods was located and in operation. Such manufactories are declared by the law to be real estate and hable to taxation. It was but the performance of the ordinary duty of the assessor, therefore, to make the assessment and return the same to the county commissioners. It cannot be pretended that if the defendant had been the owner of the machinery the whole property would not be hable to taxation. Does the private arrangement between the tenant and the landlord which permitted the former to remove the machinery at the end of the term change the character of the property as affected by the taxing statutes? We think not. The thing assessed was a factory and the machinery is a part of it. As was said in Gray v. Holdship, 17 S. & R. 413: “The machinery, the wheels, stones and even the bolting cloths are a part of the mill.” This is so in a literal as well as in a popular sense. If the machinery is not to be included there is no manufactory to be taxed and the land and building would be liable not as a factory but as “other real estate” as provided in the same section of the statute. The, property is either a manufactory or it is not. If a manufactory it is clearly subject to taxation under the specification of that class of property. It is conceded to be a factory in the affidavit of defense and is therefore liable to the taxation imposed on that land of property. If not so liable we would have the inequality forbidden by sec-. 1 of art. IX, of the constitution, for the owner of an adjoining factory engaged in the same business who owned the machinery as well as the land and building would be subject to an assessment and compelled to pay tax on the whole plant while the factory of which the defendant’s building composes a part would be assessed on substantially half of the property value. Such a result was not intended by the legislature. The object aimed at was the subjecting of all property of the same class to the same public burden. The ownership of the property is a subordinate matter. There is the further consideration that the law provides a remedy in the case of an unfair or illegal assessment. The real complaint here is that the valuation returned by the assessor is too high. The remedy to correct such an error was an appeal. The assessment clearly established the prima facie liability of the defendant for the amount of the tax and if a wrong was done by the assessor in this respect the county commissioners ao;e the tribunal to rectify the error in the first instance: Wharton v. Birmingham, Boro., 37 Pa. 371; Van Nort’s Appeal, 121 Pa. 118; Clinton School Dist.’s Appeal, 56 Pa. 315. But the defendant says it had no notice of any assessment or opportunity to protest the same. If by this is meant that personal notice was not served on it the objection is answered by the fact that it is not averred to be a “taxable inhabitant” of the township in which the property is situated and therefore is not entitled to the notice of the time and place for the hearing of appeals provided for in sec. 9 of the Act of April 15, 1834, P. L. 509. The published notice of the time and place for such hearings provided for in the tenth section was presumably given and no denial is made that such notice was published. So far as appears from the affidavit there was no default on the part of the commissioners in affording the defendant an opportunity to appeal. Moreover, provision is made in the sixteenth section of the act for the hearing of appeals by the commissioners at any time when they may be in session previous to the payment of the tax and for the making of such alterations as they might have made on the regular day of appeal. The defendant did not avail itself of this opportunity after it had notice of the amount of the tax and the form of the assessment. Generally speaking it is not a good defense to an action at law for the recovery of tax that it was improperly assessed: Stewart v. Maple, 70 Pa. 221; and when the defendant permitted the collector or his administrators to pay the tax for the collection of which he was bound to the commonwealth it is too late to interpose the objection that the assessment was too high or that there was included in the enumeration of property which constituted the manufactory against which the assessment was made machinery not belonging to the defendant. The careful and comprehensive opinion of the learned judge of the court below renders a fuller discussion of the case unnecessary.

The judgment is affirmed.