Commonwealth v. American Ice Co.

Dissenting Opinion by

Mr. Justice Cohen :

In holding that the making of artificial ice does not fall within the “manufacturing” exemption of the Pennsylvania Franchise Tax, Act of 1889, June 1, P. L. *333 420, as amended by Act of March 15, 1956, P. L. (1955), 1285, 72 P.S. §1871, the majority does violence to the reasonable interpretation of the word “manufacturing.”

The description of the operations contained in the stipulation of facts clearly reveal a complicated technical production in which a raw material is transformed into a distinct and definite finished product.

Artificial ice is the result of conducting a prescribed series of steps, performed in a fixed sequence, on a body of water, in special apparatus designed and connected for ice-maldng purposes only.

The artificial ice is frozen in an ice making tank Which is a steel tank approximately forty-five inches (45") deep extending from wall to wall of the tank-room which is partially filled with brine (salt water) with a salinity sufficient to withstand freezing to below 10 degrees Fahrenheit. Ammonia freezing coils are installed in the ice making tank at various spacings, through which ammonia vapor is forced by the ammonia compressors for the purpose of extracting the heat from the brine and cooling it to approximately 15° F.

The ammonia compressors not only serve to force the ammonia vapor through the coils in the ice making tank for cooling the brine but also serve to cool the water in the precooler tank to approximately 35° F. and to refrigerate the storage room to 28° F., all of. which is controlled by adjusting the various expansion valves throughout the system. The temperature of the brine in the ice making tank will vary slightly above or below the 15° temperature, depending upon the type of plant and type of water used for making the ice. After the proper temperature has been established for the particular ice making plant involved, it must be watched very closely by the engineer in charge to assure that no change takes place for if the temperature *334 of the brine is allowed to fall, the ice will be brittle and shatter during handling or if the brine temperature is allowed to rise, the ice will be soft and porous.

The ammonia condenser is used to liquify the ammonia gas as it is discharged from the coils through which it has been forced by the ammonia compressors and the liquified ammonia is then deposited into the liquid receiver so that liquid refrigerant is available at all times for expansion to the brine cooling units and other refrigeration pipes throughout the system. The brine agitator, a pump, is used to keep the brine in constant circulation around the ammonia coils in the ice making tank to insure an even temperature of the brine throughout the ice making tank. This tank is insulated on all sides and bottom to help retain the low temperature of the brine. Also included among the necessary equipment for ice making is a precooler tank. This is an insulated steel tank large enough to hold sufficient clear filtered water to refill the number of ice cans emptied to each pulling of ice. Ammonia coils are installed in this tank to bring the temperature of the water to approximately 35° F. which will shorten the freezing when the ice cans containing this water are placed in the brine tank for freezing. The can filling tank is a steel tank divided into compartments, each of which holds sufficient clear filtered water to make a 300-pound cake of ice. Ice cans supported in steel frames are filled with the clear filtered water which comes by gravity through pipes from the precooler tank to the can filling tank. After the cans have been filled with this clear filtered water they are placed into the 15° brine in the ice making tank for freezing, at which time air tubes are placed in the cans to agitate the water and produce crystal clear ice.

Ait- under pressure is supplied to these tubes by the air blower, from which a pipe (approximately one inch in diameter) extends over and rests on top of the ice *335 cans. The air tubes are hung from this pipe and are spaced so as to be located in the center and in the water of each of the ice cans. The air, under pressure, introduced through these air tubes, operates to keep the water in the ice can in motion and to wash the suspended solids and entrapped air from the freezing ice. The suspended solids and entrapped air become concentrated in a core at the unfrozen center of the block. At this step in the operation, the filtered water in the can is freezing from the outer edges inwardly, so that a partially frozen cake of ice, with an unfrozen core containing entrapped air and suspended solids of impurities results. When this core is reduced to about five gallons in volume, the air to the air tubes is shut off and the pipe is disconnected at the header.

The placing and removal of the air tubes in the ice making can is a manual operation and it is one of the most important steps in the making of marketable artificial ice. The air tubes must be watched very carefully at all times because the producing of crystal clear ice is entirely dependent upon the proper manual timing, functioning and withdrawal of these air tubes. If the air tubes are not properly manipulated, the resulting product is snowy or white ice which is non-sale-able.

After the core has been reduced to about five gallons in volume and the air tubes have been removed, the water comprising the core, which contains the suspended solids and the entrapped air, must then be sucked from the partially frozen cake in the ice can. This is accomplished by the use of a vacuum hose. A suction pump is provided having a suitable hose which is manually immersed in the core for the complete evacuation of the liquids and solids constituting the core. The vacuum hose is then withdrawn from the core space. After this core sucking has been completed, the empty space then remaining in the center of the *336 partially frozen ice cake is filled with, clear filtered water by the use of a hose. The water which is thus used to refill the core cannot be agitated because the cake freezes from all four sides of the can toward the center and the air tubes cannot be allowed to remain or they would be frozen into the solid cake of ice. It is common knowledge that every cake of commercial ice has a streak of white ice through its core (longitudinal axis). This is due to the fact that the water replaced in the core, as aforesaid, cannot be agitated during the final phase of the freezing process. The entire cake would consist of such white ice if it were not for the agitation hereinbefore described.

After approximately forty-five hours in the ice making tank, the water in the ice cans has frozen solid and the cans are then hoisted from the ice making tank by means of a crane and lowered into the dip tank to loosen the ice from the cans and the ice slides from the cans through the ice door chute into the 28° storage room and held there until sold to the various purchasers.

To view the complicated technical process described above, which is necessary to transform water into commercially useable artificial ice, as anything other than manufacturing flies in the face of reason.

The majority cites Armour and Company v. Pitts burgh, 363 Pa. 109 , 69 A. 2d 405 (1949), to support its decision. In Armour the court stated (at p. 118) that “[T]he mere freezing of water and converting it into ice cannot be said to be manufacturing.” Such a description is a vast over-simplification of the intricate procedure involved. In part this is due to the fact that the ice-making process was but sketchily described in the argument of Armour. The interpretation of manufacturing given in that case should not be regarded as binding here.

*337 Moreover, there is older authority in this Commonwealth that the artificial production of ice is manufacturing. In Commonwealth v. Northern Electric L. & P. Co., 145 Pa. 105, 117 , 22 Atl. 839 (1891), we stated that “. . . The collection, storage, preparation for market, and transportation of ice is not manufacture, but the production of ice by artificial means is.”

Although the majority minimizes the significance of administrative determinations exempting the commercial production of ice from application of the Selective Sales and Use Act, the fact remains that where the process has been examined in detail by the taxing authorities to determine its true nature, it has been designated “manufacturing.” These interpretations are much more convincing than that given by the majority which pictures the process involved merely as a freezing of water into a solid mass, and concludes, that at any given moment, the ice could be retransformed into its original state — water—and, consequently, it is not manufactured.

Recently, we held that the refining of oil, Atlantic Refining Company Case, 398 Pa. 30 , 156 A. 2d 855 (1959), and the making of ice cream, Rieck-McJunkin Dairy Company v. Pittsburgh School District, 362 Pa. 13 , 66 A. 2d 295 (1949), constitute manufacturing. Logic would dictate that the production of artificial ice similarly should be designated manufacturing.

Mr. Justice Benjamin R. Jones joins in this dissent.