Brief for the Appellee — Reconstruction Finance Corporation v. Beaver County

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a ae . 7 Ie Dee ie const aoe En ong |

i. Supreme Court of the United Stat |

ioe "OCTOBER TERM, 1945 ae

NO. 4000

RECONSTRUCTION F. !'NANCE. ‘CORPORATION,

SUCGESSOR TO DEFENSE PLANT

CORPORATION, Appellant, .

‘|. QeOUNTY.OF BEAVER, PENNSYLVANIA.

Appeal from the Supreme Court of, the Commonweaith

of Pennsylvania.

> ¥ bys Konic) > _ —— - +: bs. — _ -

: ed og te iS daa 4S RANE SS Sage feat egw te nese Shee Eta

ae, EaLesMestggudh ebces. ° spa 2 FR CS Ry ne PANE BY eile 43

BRIEF FOR COUNTY OF BEAVER,

PENNSYLVANIA, APPELLEE: .

a

.

i eilered | JOHN G. MarsuatL, ine ae

a . County Solicitor, Foes

4 Aah Beaver Trust Building,

‘% . : a Beaver, Pa. - ~« Pe A a *

a. . ' | Epwarp G. BoTHWELE, ey

Fay _ 1403 Commonwealth Building,

Pittsburgh, Pa., :

-- Attorneys for Count, y_ of cant ie

< Pa., oe

oa AE NNN EIS SNE ASN EEE AR , se

> : SMITH BROS. CO. INC., LAW PRINTERS, 654-436°BOULEVARD OF ALLIES, PITTSBURGH, PA.

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E INDEX

PAGE

DIN a re ewe at C0 Gk SS 4A ee sk Oe 1

4 Counter-Statement of the Case.........0........ 2

/ ;

Counter-Statement of Questions Presented. ee 8

Summary of Argument to Follow =e maudethvsss

Argument:

Jt Congress intended its permitted nee taxa-

tion of “any real property’: of Defense :

_ Plant Corporation to be governed. by local]

law as to what constitutes such tai

for local tax purposes, .......-006..0.-.. 9

it This appeal fails to present a substantial ‘Fed-

7 ‘éral question ..... Pe ee On ae ees 28

: iff. Conclusion: This appeal should be dismissed |

' or the appeal judgment should be affirmed 29

ee | CITATIONS.

, CASES + ae -

Austin v. The Aldermen, 7 Wall. 694, 699........° 19

2 _. Bernier v. Bernier, 200 UB. Pee, Bis oie ces a 13

a Carpenter v. Shaw, 280 U.S. 363... ..0.... Barre 21

a . Clallam’ County OU. ta Oe dee nda ee |

ig RA WS OR, B28, Be BOO os ln ART

Commissioner v. Tower, No.-317, decided Feb. 25,

FSi erat aaee Pree ees Rew cys iat eee i; ae.

Edward Hines Yellow Pine Trustees v. Martin, 268 -

4 a SS nee ERE sa apa Bee 12, 21

‘Erie R. Co. v. Tompkins, 304 U. S. 64,68... ..12, 13,21.

i Ve / - .

| .

ii Setar . Citations.

PAGE

Federal Housing ‘Admn. v. Burr, 309 U. S. 242

PR MEME CS Saar oP EEN Aen ced icy eee a 19

Guthrie v. _ Pittsburgh Dry Goods Co, 47, Pa.

Super. Gr Me ns i rN ee 30

rcs ie Co. V: paris 308 U.S. 389, 394...... 13

National Labor Relations Board Vv. Hearst Pub-

lications, ae oe

Puerto Rico v. Shell Co., 302 U. S. 253, ; Reo ee ' 13

Seaboard Air tie Ry. v. Horton, 233 U. S. 492,

503 CAAMR ACES 4 Oe eau Spits ee cate ae |

Eta Pees awe da ate oy eee pes 24, 25, 29°

U. s. v. 19.86 Acres of Land, 141 F. 2d 344 (CCA, |

cg Ar scnk REE OAC PO STU aE 12

U. S, v. Pelzer, 312 U. S. 399, M0 0,

ULS. ex rel.T. V. A. v. Powelson, ‘319 U. S. 266,

15g SAO REE EOE Oe AE pew he ig -12, 26

U: eS gE MP a ena we. 12, 21

FEDERAL Seasirese:

Act of June 3, 1864. 13 Stat. 14 (RIS. 5219; 12

Th ieee .C., $948 (3)) ase 3 eVee tier cee 15

I

tn oe oD ere

Citations. lil

? -

rhe: , PAGE

"15 U. S.C. s606b ......:.... eee eet ey eee 2

Historic Sites Act of Aug. 21, 1935, 49 Stat. 666.

[- (16 U.S. C. §$461-467) .. 00. occ. 26

| Joint Resolution of Juné 30, 1945, (Ch. 215, Public.

| a Law 109; 79th | A ares Pee ee een ke

Banke Reconstruction Finance Corporation Act. of ‘Jan.

' 22, 1932, Sec. 10, 47 Stat. 9, as amended by

Act of June 10, 1941, Sec. 3,55 Stat. 248 (15 -

oo os vivo cbs wets 4.

S Tennessee Valley Authority Act of 1933. Sec. 25,

. 48 Stat. 58 (16 U.S. C. $831x),....... ales | 2.

4 | wane

PENNSYLVANIA STATUTE:

General County Assessment. ‘Law of ey 22,.1933,

P. L. 853, as amended; 72 Purdon's Pa. Stat.

-¥ §5020- WS ea ee Be

M ISCELLANEOUS ; |

Restatement, Lonfict of Laws, $208...:...... is, 27

; Treatise on Confliet of Laws (Beale) 1935 ed.,

me "ee triives Ty panels ae

Webster’ s New International Dictionary ....../ 45

,

go.

%

| "In Tre °

| | ‘Supreme Court of ite United States:

e :

Peo OCTOBER TERM, 945

NO. 46

RECONSTRUCTION FINANCE CORPORATION’

SUCCESSOR TO .DEFENSE PLANT’

CORPORATION, Appellant,

ve

COUNTY OF BEAVER, eae SYLVANIA,

Appeal from tiie Supreme Court of the Commonwealth -

| of Pennsylvania. ’

| Pa . . EJ ° , .

/: BRIEF FOR COUNTY OF BEAVER,

PENNSYLVANIA, APPELLEE.

| JURISDICTION. =”

Appellant appears to, misumderstand the basis of.

appellee’s Statement Opps retin and Motion

to Dismiss or Affirm. Appelld does not contend. ap

Section 237/a) of the Judicial Code, as amended, is_

inapplicable to this ‘appeal. It does contend that. the

appealed decision deals, with no question pertaining to

the ordinary immunity from loca] taxation enjoyed by

. ‘appellant by implication from the Constitution of the

United States, that-no decision of any such: question

was or is necessary to a decision of this case, and that,

2... br Counter-Statement of the-Case.

ee ae appellant\s attempt td obtain a review of

the appealed decision aq one in favor of the validity of

the State statute as cehicerns any lepugnancly .to the

Constitution is frivolous,” Appellee’s point ix this re- °°

spect is that Congress leg islated a ‘waiver of the implied

Constitutional immunity,|'\and that the only - questién

dealt with pe, Catena be dealt with in decis-

‘ion of this case, converns the scope of the: Congressional

.waiver. The only. Federal question itrvolved, thereforé, .

is whether. the State statute, as construed and applied;

is repugnant to the Act of Congress defining the waiver.

Upon the ground that the intention of Congress is free °

‘from any reasonable “judicial doubt as. to the scope ‘of.

the waiver, appellee contends that this Federal question |

. is not of the substantial charactef required by Rule 12,

par. 1, of this Court. In consequence of all-of the fore-

_. goinr. appellee’s Motion to Dismiss or Affirm is: based

upon the ground that no substantial Féderal question is

. presented by the record, and appellee presses for‘a

favarable disposition of its motion. — .

‘

COUNTER-STATEMENT OF THE CASE, .

In 1942, Defense Plant Corporation wasa Govern-

ment-owned corporate agency,pr instrumentality of the

United States, created or organized by the Reeonstruc- ~

tion Finance Cotporation under the authority of 15.

. U.S.C. $606b. By-Joint Resolution’ of ‘the Congress, '

approved June 30, 1945, and effective July 11945, (Chap-

ter 215, Public Law 109; 79th Congress), Deférise Plant

Corporation: was dissolved and all of its’ functions,

powers, duties, etc:,-were transferred to Reconstruction

Finance Corporaticn with a direction that the latter,

: \

Counter-Statement of the Case 3

>

corporation “shail assume and ‘be subject to all liabili-!

ties’ whether arising out of contract or otherwise” ‘of

the dissolved corporation. Defense Plant Corporation‘ 7m

‘ was the original party appellant in ‘this appeal. By

appropriate motion granted by this Court pursuant ta,

said Joint Resolution, Reconstruction Finance Corpora: -

tion has been. substitutéd ds party appellant in Succes-

‘sion to e Plant Corporation. For convenience,

the word ™&appeliant’’, as used hereinbefore and here: 1-

‘after, refers indiscriminately to eithef and both of said.

corporations. P

The. décision of ‘the Court saline is one in af-*

‘firmance- of an assessment of ‘a mill or manufactoyy lo- =

cated in appellee County and owned by appellant. The

assessment was made in 1942 by.the proper authority

_ under the provjistons of a Pennsylvania statute (section |

ee of the General ‘County Assessment Law of May 22,

1938,. P..L. 853, as amended; 72 Purdon’s Pa. Stat..

°50Z0-201) designating “mills and manufactories of all

ki nds” as real estate. subject to taxation for loca! pur-

yoses and directing their assessment for application

. thereto. of “the _— rate” of local tax levies.

+

&

Under the waters old decisional. law of Pennsyl-

vania, a mill or manufactory*is an intt gral unit of real”

property. comprised of land, buildings, and #1 machinery

upon the premises essential to jts operation asa miil .

. or manufactory. In its Statentent as to jurisdiction,

-appellantestates (p. 6) that it “has at no time sought - ‘

to contest this construction by Pennsylvania courts of |

the Pennsylvania tax law”. The fact is.that the afore-

said settled decisional law of Pennsylvania not only |

' applies to its tax law but also is a general rule of prop- ©

erty law in Pennsylvania’ (R. 65-69). Pursuant to the -

oo"

ce |

# ——. Counter-Statement of the Case. .

< -

/ .

s

-Pennsylvania statute @hd gaid decisional law, appel-

_ Jant’s machinery upon the premises of its manufactory

and essential to its existence and operation as such Was -

included in the reaij estate assessment of its manufactory, :

_ When the’ issessr-ent of appellant's mil ér manu-

factory was thus. nade, there was in. forte -and effect

the Att of Congress known ag the -Reconstruction.

‘Finance Corporation Act of January 22, 1952, 47 Stat.

9,,as well. as the amendment. of Section 10 thereof

_ effected by Section 3 of the Act of June 10, 1941, 55 Stat.

e

“the preceding sentence with’ respect to taxation ,

“ * "shall be construed to be applicable * * *°

248 (15 U.S: C. £610). The relevant language of said

Actas so amended is as follows: ares,

ERIE eas | Reconstruction Finance} ¢orporation, .

including its franchise, its capital, reserves. and

‘surplus, and _ its income shall be exempt from all

taxation ‘now or hereafter imposed by the United

es States, by any Territory, dependency, or ‘possession

‘thereof, or by any State, county, municipality, or

local taxing authority; except that any real prop-.

. erty of the corporation shall be subject to Staie,

Territorial, county, munitipal, or local taxation to

y P

‘\: the same extent according to its value as other real

property is taxed. The exemptions provided for in

with respect to the. Defense Plant Corporation

7" © .*, Such exemptions shall also be construed -

to be applicable to ‘the loans made, and personal

property owned, by the Reconstruction Finance

Corporation or by {the Defense Plant Corporation ]

* *“ *, but such exemptions shall not be construed.

to be applicable in any State to any buildings which

.

a -

| Counter-Statement on\he — ae -..

are considered by the laws of inal State to be per-

sonal property for taxation purposes.”, ts |

_ The court of -first instance (the Court of Common

Pleas of Beaver County, Pa.) said in its cpinion (R..69) :

“The vital question in connection with the present case

is: what is intended by the Act.of Congress by its refer-.

ence to,real property.” At the beginning of its opinion,’:

the. Court below said: (R. 83): “The question is, what

did Congress mean by the term ‘real property’ in the Act

waiving immunity: from taxation of certain property

‘owned by aoneeeees agencies:” And ag@in, the Court

below said (R. 85): Aw hat did Congress intend by ‘the

term ‘real property’ in the statute which was designed

to waive immunity in aid of the. revenues of-local com-

munities’in which industrial establishments were en-

gaged in manufacturing defense material?”

Throughout this Ntigation, appellant has contended

that the machinery upon the premises of its manufac-

tory 18 immune from lucal taxation under the intend-

ment of Congress ih the enactment of the statute above

quoted and should, therefore, not have been included in-

the agsessment. Despite the finding of the court of first

instance ( finding’ No. 13, R. 55) that said machinery was

necessary and essential to the existence and operation

wof its nianufactory, and to which it has never taken ex-

ception, appellant continues so to contend in this appeal.

The Court below held. iR. 88) that the machinery was

properly included in the assessmgnt as required by Penn-

sylvania law, and‘as intended by the Act of Congress,

permitting “local taxation” of “any real property” of

appellant “to the same extent according to its value as

‘other real property is. taxed”.

6 Summary of Argument to Follow. : ;

‘The foregoing simple Counter-Statement-pf the Case

is deemed. necessary and advisable in order to blow away

the chaff in dppellant’s Statement and to _bring into -

proper relief the only question believed by -us to be

involved in the merits of this appeal. 2 pe

COUNTER-STATEMENT OF QUESTIONS —

PRESENTED.

(1) Did Congress intend its permitted local‘taxa-

tion of.“‘any real property” of Defense Plant Corpora-

tion to be governed by local law as to whit constitutes

such property for/ocal tax purposes? - ;

(2) Does the record in this appeal present a sub-

. Stantial Federal question?

SUMMARY OF ARGUMENT TO FOLLOW. .

As to the merits. ‘The decisive.question is whether _

-- ‘Congress intended its permitted local taxation of “any

real property” owned by appellant to be governed. by

local law as to what constitutes such property for local

tax purposes. We contend that it did so intend: The

problem before Gongress was a local one, The -evil to

. be remedied was the normal immunity of such property

from local taxation. The’. plain. legislative purpose was

to cure that evil. Due to the variety in ‘state law defini-

tions, the evil was not curable by any legislative defini-. |

tion for uniform application throughout the nation. The

failure of Congress to define the term is Significant per se

of its realization of that fact. Had it intended a nation-

= Summary of Argument to Follow. . 7.

”

wide tieiboren: ‘application, Congsess would and should

have defined the term. The very language ‘employed is

“ determinative of the question. No decision upon prior

Federal statutes employing the term “real property”

casts any doubt upon the question. The legislative cir-

cumstances demonstrate an intention to subject appel-

- lant’s réal property to nondiscriminatory local taxation.

Application of local law is necessary to prevent discrimi-

nation in favor of appeilant. The preservation of im-

munity: of personal property relates to personal property

tax laws only. The portion of the Act dealing therewith

emphasizes the legislative intent for state law applica-

tion of the waiver as to‘real property ¢axation contained

earlier in the same Act. This waiver .of immunity 4s

entitled to. a liberal éonstruction. Congress meant the.

full consequences of what it‘said. Decisions involving

‘application of Federal revenue laws and other statutes

solving national prgblems on a national seale prove,.

rather than disprove, the, intention that local law is to.

govern the application of this Act. The inherent power

of this Court to correct an inept characterization by a

state court of the subject matter of a tax has no appli-,

cation to a determination of, the question here. Congress. -

created no Federal right in appellant to require this Act

to be applied uniformly and without regard to State laws.

Appellant itself concedes the decisive character of the

question of intent for application of local law. -The issue,

here pertains not to the prohibition against taxation of

personal property but to the permission for taxation of ;

real property. Taxation of appellant’s plants as units

of locally taxable real property imposes no unfair burden

on the nation. By this Act, Congress has resolved what-

ever conflicts previeusly existed between appellant Gov-

ernmental-instrumentality and,the local industrial com-

Aes

8 - Summary of Argument to Follow.-

~—tmumiities in which its plants are located. Had the United _

States owned the entire plant involved in U. S. v. County

of Allegheny, 322 U. S. 174,.and had an Act similar-to

. this Act been ‘present in that case, the decision there

would have been against the United States. Congress, 7

intended appellant's real property to be subjected to

. local taxation exactly ag any other. real property is taxed

in the several ‘States. And, as a necessary-eorrolary

_to that intention. Congress intended the words “any real

property” to comprehend whatever is real property for

local taxation purposes in the particular. State, where it

is located. Appellant’s plant was so taxed, and its appeal

-here is without merit. ,

- ‘ Ae e -

As to the jurisdiction. The Federal question pre- ©

sented by the record is not a substantiai one. ‘There is

complete unanimity of opinion upon it by both of the

‘courts below. Appellant cites no case from ‘any juris-

. diction expressing any judicial doubt as to the legisla-

tive intent that local law isto govern the application of

the Act df Congress here involved. That intentign. is

crystal clear.. Hence, the question is so free from ju-

' dicial doubt as to deprive it of reviewability under Rule

12, par. 1, of this Court. :

4

Conclusion. This appeal should be dismissed for

want of substantiality in the Federal question presented.

If not so dismissed, the’ appeal is without merit and the

4

judgment below should be affirmed.

ae - . ARGUMENT. -

— La — . Argument. —= ——__—~SOS

I. ace Cian

. Congress intended its permitted local taz-’

ation of “any real property” of Defense Plani

Corporation to be governed by local law. as-to—

what constitutes such tte for local tax

purposes, “sep ‘

oo

(1) Appellant’s argument is so formulated in con-

text as to subordinate this question. However, in intro-

ducing its argument, appellant makes a vital concession

concerning the question. In that introduction (see p. 17

of its Brief), appellant refers to “the question as to

‘ whether Congress intended state law to govern, and if.

not, what ‘real property’ was intended to mean”, *etc.

By this “if not” clause, appellant obviously concedes the

primary character of the question. But, disregarding

_ its basic importance, appellant proceeds’ to indulge at

‘great length in an argument dealing with the other

question posed, —an argument which, of course, is a

‘waste of effort if Congress intended state law to govern.

Our argument on’ the merits of this appeal will deal

solely with this question as the decisive one inthe case.”

\

(2) In nies. United States, 318 U. S. 101, 104,

this Court. said:

“At times it has been inferred from the nature

of the problem vith which Congress was dealing

that thé application of a federal statute should be

dependent on state law. * * * But we must gen-

erally assume, in the absence of a plain indication

10 Argument. )

to the contrary, that Congress when it enacts i

statute is not making the application of the federal

‘act dependent on state law.’ That assumption is

based on the-fact that the application of federal

~~ legislation is nationwide (United States v. Pelzer,

: 312 U. S. 399, 402). and at times on the fact that.’

the federal program would be impaired if state law

were to control. Seaboard Air Line Ry. v. Horton,

233 U. S. 492, 503.” ey, : ame ae

*

‘

It is our contention that the case at bar presents a clear

* instance of a “time’”’ when it is to be “inferred from.

the nature of the problem with which Congress was

dealing that the application of a federal statute Should

be dependent cn state law”. The Act here is not thé

type of act. (a Federal revenue law) construed in United

States v. Pelzer, in which, \upon ‘examination of. the

Senate and House committee \reports, the Court found

a general definition of the phrase there ‘involved and .

came to the conclusion that the act there “plainly is .

not concerned with the varying local definitions of prop-

erty interests’. Nor is it the type of act construed in

Seaboard: Air Line Ky. v. Horton, in which the act (the

Federal Employees’ Liability Act) was “a general law

for establishing and enforcing the responsibility of

common carriers by railroad to their employees in inter-

state commerce”, a plain Federal field. ‘Nor is it the type _

of act involved in the Jerome case itself, as will be here-

inafter fully demonstrated.

Upon thoughtful consideration, the conclusion is in- |

escapable that any such “assumption” as is spoken of in -

the. Jerome case can be derived only from the special

nature of the problem with which Congress was dealing: .

in the particular legislation involved and in which such

—

Argument. hire Lae ee:

an “assumption” is logical in the. circumstances. Ali fed-

eral legislation is for nation-wide application and, in a

sense, éstablishes a nation- wide program... But a nation- ©

wide program does not neck: sarily contemplate a uUni-

form application having. no regard for . state laws.

‘Whether it ddes so or not depends upon the nature of

the particular problem which the program is designed

tosolve. The-relevant i inquiry goes primarily to the pur. *

pose of the curative program and the evil to be remedied

"by it. .If the inquiry develops a logical ba8is for such

an “assumption”, it will of course arise. But not other-

wise. We shall proceed with the necessary inquiry in |

demonstration of the lack of any basis for any such

- “assumption” as concer ns the Act here involved. al

(3). AZ property. of a ik etait ow ned corpora-

tion is wholiy immune from loca! taxation ‘by implication

from the Constitution (Clallam County v. United States,

263 U. S. 341), unless such taxation is permitted by

Congress under the powers delegated to it by Art. IV,

Sec. 3,cl. 2, and Art. I, Sec. 8, cl. 18, of the Constitution. ©

" Thus, the evil to be remedied by the Act here involved

was the normal immunity of appellant’s property from =~

local taxation. That was the problem before the Con-’

gress. It was engaged in a curative program to permit

-local taxation of “any real property” owned by appellant

wheresoever it might be located. Such is the unguestion- *

— purpose of the Act.

(4) The absence of any definition of what Congress

intended “any real property” to méan is significant per

' Had it intended a definition for uniform application

having: no regard for state laws, Congress could and ~

would have formulated sueh a definition.

?

=

4

12 ch Argument.

Congress knew that there is no federal gencral com-

mon law | Erie R. Co... Tompkins, 304 U. S. 64, 681, and,

‘ hence, no federal common daw. definition . of the words

“real property” for any purpose, much less for a tax

purpose. It knew that the laws of the 48 several states

were historicaljy-rooted in.different ideologies,—some in .

the common law of England, some in the ‘canon law, some

in the Napoleonic Code, some:in the civil law, and some

in curicus combinations partly of one.and partly of an-s

other of these various systems of law. It knew.’ there-

fore, that each of the several states had its own luws,

‘Statutory and- decisional: defining “real property” for

the purpose of the “local. taxation” that Congress was

“engaged in permitting. : It knew that there @xists the |

_ law of the ‘conflict of laws. It "knew that, under that —

law, “Whether an interest in a tangible thing is classified

as real or personal property is determined. by the-law of

the State where the thing is”: Restatement, Conflict of

' Laws, $208. It knew that “the question whether a thing

is movable or immovable, or more properly,- whether it

is to be treated as if it were movable-or immovabie, is

governed by the law of the situs”: Professor Beale’s -

Treatise on the Conflict of Laws (1935 Edition), Vol. 2,

a p. 934. It knew that, asa generally accepted rule, the -

federal courts { including this court) adept -the state __

law’s determination as ‘to what constitutes real prop-

erty: Clark v. Clark, 178.U. S. 186: Edward Hines Yel- «

low. Pine Trustees v. Martin, 268 U. S. 458; W: T. Wag-

goner Estate v. Wichita County, 273 U.S. 113; and’see '

"in particular the cases cited by the Court below i R. 86) :

.* viz., U. 8. ex rel T. V.A. v. Powelson, 319 U. S. 266. 279:

U. 8. v. Bechtold Co., 129 F. 2d 473. (0.0. A., 8th, 1942) ;

U.S. v. 19.86 Acres of Land, 141 F. 24 344. (C. C. A. 7th,

1944).i°-., | ;

é

?

Argument. : V Aes | 13.

ere,

| a a ene

Furthermore, Congress knew the canons of stat-

utory construction as.laid down in this Court’s decisions. ©

“It knew, for example, that when a statutory provision

admits of more thai one construction, that one will be

adopted which best serves ‘to-carry out the purposes of.

the act: Bernier v. Berniér, 147.U. S. 242, 246; that ‘a

statute should be construed to effectuate its evident pyr-

pose : Royal Indemnity Co. v. American Bond & Mtge.

Co., 289 U. S$. 165, 169; that all statutes must be con-

strued in the light of their. purpdsc: ~Haggar Co:

Heivering, 308 U. S. 389, 394; and that the meaning “of

the words used in a statute is to be arrived at by acon- ._. |

sideration’ not only of the words themselves, bift bY

‘considering, as well, the context, the purposes of the law,

and the circumstances under which the words were em-

ployed: Puerto Rico v.. Shell Co., — U. © 253, a0, and

cases there cited. — | J .

ieiiicens knew that by the famous Tompkins case,

* supra, this Court had restored to its full intended effect

‘the mandate: of Section 34 of the Federal Judiciary Act

(28 U. S. C. $275)" which reads as 5 follows (emphasis

supplied) : a ree

“The laws of the several states, e cept w here

the constitution, treaties, or statutes of the United » ,

States otherwise require or provide, snail be -re-

garded as rules of decisions in trials at common law, |

-in the courts of the United States, in cases where | |

they “apply.” ae ae eg

. ¢€

ee knew that it, would be the Statg courts

that would be called upon to apply the Act here involved

and that no Statepcourt would presume to devise a

definition of “real property” as a term of federal nomen- —

e: o ° 4 s : ‘ .

14 ote . Argument.

clature. It. knew that the assessment of “real property”,

appeals therefrom, the levying of the tax, and the

procedure for enforcing its collection, are all admin-

istered under local laws and cannot be otherwise admin-

istered. It knew that no necessity exists, as in federal |

revenue Statutes and other nationally administered laws,

.. for any unifornt application of this Act throughout .thé

nation. It knew that any attempt at uniform applica-

tion would destroy ‘the very purpose of the Act to ‘permit

. locai.taxation of such property as other similar property

is taxed. - 2 a an eae

Presumed and bound by I@w to have‘known ail of

. the foregoing, Congress failed to legislate into this Act

a definition of the term “real property” used in the Act.

We repeat that its failure so to do is ‘affirmatively ‘sig- . -

nificant per se ofits intention. Ta intend that the. va-’

rious laws of the-Several ‘states were not to govern the °

application of the Act, it would nave been necessary for

. Congress to’ have defined the term. In no other way

could Congress Rave made certain that when this Court

had this statute before it for construcfiom'as it now has,

_the Court weuld find in it the sine qua. non for a depar="

ture, from “the. laws of the several States” as “rulé& of

decisions” in Federal Courts. In short, to-paraphrase ee

» but ‘not to disturb ‘the sense of .the proverb, this is a

case where Congressional ixaction “speaks louder shan

words”! Fraught with rhedahee its “silence is.golden”!

° . & 7

(5) Congress was not dealing with an evil] curable

by an application ‘of some uniform definition of “real

property”. The real cure for the evi] being dealt vfth

- 1s peculiarly an application dependent upon the laws of ee

the several statés, varied though they pe. The statutory, ©

4 2 ; :

argament. ee ; 15

language itself is indicative that such i ‘cure was what

Congress intended. It ordained that “any real propert y

of the corporatién shall be subject te State, Ferritorial,

founty, municipal, or local taxation to the same extert

ae to its value as other real property is taxed”.

The word “any” has a broadly inclusive significance that:

may not be overlooked. That it bears a relation to the

word “ether” that appears later in the clause is not to

_ be doubted: ‘The-word “same” means: “not differing

’ in kind; like in quality or qualities; indistinguishably

alike”: Webster’s-New Aaferneteomel Dictionary. The.

word. “extent” means: ‘“‘space or amount to which a

thing i is extended; compass; {also, and much to’the point

here], the agsessed ‘valtie, or the record made of the

assessment”: idem. When the primary purpose of the

entire clause .4s one in. waiver of the ordinary immunity

from local taxation is -onsideréd along with the #se of

the words “any”, “same extent”, and “other”, it.is miani-

fest that Congress: was permitting the faxation’ of any

real property of appellant precisely as any real property

of like nature held. locally by others is taxet locally.

Hence, it is ‘only sensible. to conclude that Congress in-

tended local law to determine what particular property.

falls within the locally taxable category of real property.

‘Such an intention i is the only natwral one in the. circum-

stances. 7 i

~

_(6). In an attempt to ascertain the intention of .

. Congress as regards the use of the term “any real prop- —

erty” in the Act now before the Court, appellant reférs

to the language of prior statutes, such as the Act of »

June 3, 1864; 13 Stat. 111 (R. S. 5219; 12 U. S. C. $548,

13) ). and the Federal Reserve Actof 1913 (38 Stat. 258:

12. UV: S. C. £531) and some twelve other laws cited in ,

J

16 ae | Argument.

| note 7 on p. 20/of its Brief. But snnitinns readily con-—

cedes that it has found no decisions in application of any

of these prior statutes that throw ‘any light-on the in-

| tended meaning of ‘‘real property” or “real estate”, as

used in these laws, other than the few cases. referred to

on p. 19 of its Brief. Certainly, nothing in those cited

cases has any bearing Op the basic question involved

here and ncw under argument, i. é., the question as to

whether Congress intended local pam to govern in the

e

application of this oa ; ;

a (Th This Act originated as H. R.°7360 of the 721d

Congress, 1st Session. The Committee report (H. Rept.

- No: 36 of the session) contains. no comment. whatsoever

upon Section 10, the section of the Act ‘here involved.

The amefXting Act of 1941 originated as S. 1438 of the

77th Congress, 1st Session. It made no change in ‘the

language of the original Act pertaining to local taxation

of real property. The Committee report (S. Rept. No.

292 of that session ) commented on the existing law, ‘. €:,

on the provisions of Section 10 of the original Act. The

report contains the following relevant sentence

“The only qualification of these exemptions

. provides-that real property of the Corporation is to

be a: to nondiscriminatory State and local

ta.ces > ' f i ‘ %

After S. 1438 reached the House, its Cotiiaithes reports

CEL Rept. No. 616 and No. 616, Part 2) made substan-.

tially the same comment above quoted from the report

of the Senate Committee. Neither. the subsequent pro-

. ceedings in both House and Senaté relating to ‘the

“buildings” clause nor the conference report ‘all of

which are recited in appellant's s Brief at p. 23) dealt in

a"

. { <

Ra

Argument. : hee *

/

any way> with the “real snaiehany* portion of’ the Act.

- The above quoted cumment, therefore, discloses the in- ,

tention of the Congress as to the point’ we are about

‘to make. ue | :

Q . ot | ae

* Since a tax may discriminate either aggins! or t

favor of, it seems perfectly clear that the intention of.

Congress was to permit such local taxation of.“any real «

property” of appellant corporaticn as is “nondiscrimina-

tory” in both of these senses. That is to say, Congress —

‘intended that appellant’s “real property” “should be :

taxed without any discrimination either againstor in .

__ favor. of appellant. To reliev re appellant from local tax-

“ation according to local law would be to discriminate in

_its favor and would not conform to the’intention of Con-

gress as thus stated in the réports of the Committees of

“both of its branches. Jt would obviously result in a local

tax preference to appellant against alt other local tax

payers owning. precisely similar “real cdl fire.

would thus vidlate. the, maeartaal -of Congress.

(8) We come nov to the addition to Section 10

effected by the os Act. of 1941. ae

Notwithstandiitg its tight and sone to 9 dp So | , «pitt!

_man v. Home Owners’ Loan Corp., 308 U. § 21). it was

wholly unnecessary for Congress tc enact any exemption

of appellant’s personal property from local taxation. It

_. was already exempt therefrom by implication from

the Constitution. Was Congress thus unnecessarily

acting with a superabundance of caution? Or did Con.

gress have some other objective, in mind? .We think it ,

had a special objective and that the nature gf that ob- &

jective appears quite clearly in ‘the language used. |

é at e

-_

18 Argument.

Omitting all but the relevant words in that portion of

_ the amendment that deals with the exémption of “per-

sonal property” and supplying those that must be sup-

plied to arrive at the trué sexs ‘hereof, weeread the

language as follows:

“Such ar [as are specified in thanbes:

‘ing sentence of this Section} shall also be construed

_ to be applicable fo the * *' * personal property

- owned [by y Appellant }, but such. exemptions shall

not be construed to be applicable in any State to

any buildings which tre considered by the laws of

such ‘State to be personal property for {personal

property] taxation purposes”.

‘Thus, Congress was here dealing with a type of local

taxation with which it had not previously. dealt in ‘the -

earlier portion of the Act by which it waived the normal

immunity of appellant's “real property” from local taxa-

tion. It was here: dealing with local personal ‘ property

taxation. And what it was doing was waiving the normal

immunity of appellant's “buildings” from local’ personal

_ property taxation. It. was thus accomplishing a neces- ("|

sary, objective that it’had in mind. But, it was not de-

claring “buildings” to be personal property in. states

where they are real property. .Nor was it indicating that

either they or any other. objects. that are part of real

property for iocal real property taxation purposes are

to be exempt from ‘Jocal taxation. And by the solicitous

regard it demonstrated for state laws in its formulation

of this amendment, Congress certainly emphasized its

intention that they, state laics, are to govern the scope -

af the waiver. of. immunity of appellant's “real. prop-

erty” enacted earlier in the very same-Act.

i

1

e

y Argument. ; ~ 19

_° (9) . Appellant quotes’ from Austin v. The Alder-

men, 7 Wall. 694, 699, to the effect that a waiver of tax

immunity of the United States “must be clear, and every

- well-grounded doubt upon the subject should be resolved

| in favor of the exemption” (p. 53 of appellant's Brief).

' But a mere glance at the cited case shows' the quoted :

language to be mere obiter dicta of the opinion, writer

not necessary to the decision, because the ‘facts of the

case were concededly within the precise language of the

Act of Congress there involved. .On the other hand,

when obliged by the facts before it to-rulé upon the point

as a matter of law necessary to a decision of the case,

this Court held in Federal Housing Admingstration v.

Burr, 309 U. 5. 242 (1940) that a waiver by Congress of

a governmental immunity in the case of corporations.

created as federal instrumentalities should be liberally

construed. And while th® particular immunity there

_. involved was the immunity from suit, the reasoning of

the Court is equally applicable here. Said the Court *(p. | .

249) : |

_ “In our view, however, the bridge was.crossed

when Congress abrogated the immunity by this ‘sue

and be sued’ clause. And no such grave interfer-

ence with the federal function has been shown to

lead us to imply that Congress did not*intend the

full consequence of what it said”. _ .

Here, the waiver is as to “any real property * * -* to

the’same extent * ” * as other ceal property is

taxed”. Such words spéak for themsélves. Here, like-

_ wise, the bridge has been crossed, and, po grave inter-

- ference with.the federal function having been shown,

- Congress must have intended “the full consequence of

what it said”. =)

i.

nn Argument.

(10) Appellant, relies heavily upon the “assump-

tion” spoken of in the Jerome case, supra, and quoted

hereinbefore at’ p. 9. But, illogically enough, appél-

lant utterly disregards the only true. basis upon which

any such “assumption” must rest, as pointed out above _

in our discussion of it... The cases cited by appellant on |

- p. 51 of its Brief prove our point. They lend,no support

whatsoever to appellant’s attempt to: apply. any such

“assumption” to the Act here involved. Lyeth v. Hoey, |

U. 8. v. Pelzer, Morgan v. Commissioner, and Coimmis-

_ sioner v. Tower are all cases involving federal revenue

acts “‘to be construed. in the light of their general pur-

pose to est2blish a nation- Wide scheme of [federal] taxa-

tion uniform in application” : U. 8. v. Pelzer, 312 U.S

399, 402-3. ° National ‘Labor Relations Boaz v. Mourat

- Pubiications deals wit® the Wagner Act, in which Con-

‘gress was engaged in solving a “national problem on a

national scale” and not at all with such a local’ problem

‘as it was engaged in solving by the Act here, .In the

Wagner Act, Congress created a “national agency” for

administration of the Act there, a thing that it certainly.

did aot ag in the Act here. . : ;

The Jérome case involved an Act of Congress which |

provides punishment for one who enters a bank with

intent to. commit “any felony or larceny”. The question

_ there was whether the Act was broad ‘enough to include

a bank entry with an intent to commit what: was a

“felony” under State law but was not:a “felony” under

any federal statute. The eomernon reached was that -

the Act before the Court “i¢’not deprived of vitality if

it is interpreted to exclude state felonies and to in¢lude

only those federal felonies which affect, the banks pro- .

_ tected by the Act”. such a conclusion was pring d

\

20

Argument. ie 21

logical .in the circumstances. * But it lends no support

to any “assumption” that, in “enacting the: Act involved

in this appeal, Congress was not making its application

dependent on state law. Indeed, the very contrary is

true as to this Aet, for it would be deprived of vitality

unless its application is — on state law.

- (i1) Apparently under the errotieous impression

' that we dispute the point, appellant argues that F deral

courts have the power to construe federal statutes in ce

so far as the meaning of terms used in “them ar eon*

cerned. Of course, they have. And, of . course, they

have the power to disagree with any State court's in-

terpretation of the meaning of a term used in a Federal |

Statute. ‘And, as exemplified in Carpenter v. Shaw, 280

U.S. 363 (cited by appellant), they have the power to

correct a state court’s characterization of an ineptly’

characterized tax whosg¢ real nature is to tax a subject

matter that Congress has forbidden to be taxed. But, .

-what has all this to do with ascertaining the intention

of Congress as regards ‘the application’ ‘of the Act in-

‘ valved in the case at bar?. ,And, in particular, what has |

it to do with the question as to whether Congress in-

tended the application of this Act to depend upon local’

law.as concerns the scope of the waiver of immunity

here involved? .

-

(12) Appellant entirely jisieinderukands our pur-

pose in citing such cases as Waggoner Estate.v. Wichita

County ysupra,. Edward Hines, etc. v. Martin, supra, and

Erie R. Co. v. Tom pkins, supra. They are not relied upon

as authorities for any such proposition as an. absutd

contention that state: itataine! Jaw 1s controlling regard-

a

Ae _22___ —— Argument.

less of. its infringement. upon a Federal right. But they

_ are relied upon, as our argument above, shows, to prove

‘that, when Congress enacted the Act here involved,

. Congress knew the general rule that state property law

governs in Federal courts, and that Congress did noth-

ing in framing this Act to create a Federal’ right in

appellant requiring .or providing otherwise, which Con-

gress could easily have done by defining the term “real. .

property” had it intended that term to be given a uni-

_ form application throughout the nation,

@

«

(13) An argument that attempts to hide the

_ decisive question in a case under a mass of chaff, albeit

-scholarly threshed chaff, cannot succeed. Appellant

wastes laborious effort to prove error in the conclusion

of the Court below that the prevailing view among the

states does not support ‘appellant’ s contention as ‘to “a

universally accepted meaning of ‘real property’ ".- Like-

wise wasted is appellant’s. criticism of Pennsylvania

-law. It is also futile for appellant to argue in this Court

such irrelevancies, - under settled Pennsylvania law, as . °

any. inter- -party contractual characterization of the

nature of particular property and any contractually per-

missive removahfity of such property, ‘ We resist the

temptation to argue in support of the conclusion of the

Court below above mentioned. We.content ourselves

with an assertion that examination of the cases cited

by that Court assuredly proves the rectitude of its con-

_ Clusion. By its “if not” clause on p. 17 of its Brief, as

particularly pointed out in Subsection (1) above, appel- -

ant concedes that the. question of first importance is

whether _Congress intended state law t govern. We

return now to that question as the decifive one in this

case.

Argument. . ss. 28

(14) Appellant leans upon a weak reed when it

depends’ so heavily upon the express prohibition against

the taxation of personal property added to the original

Act. by the amendment thereto. As we have herein- -

. before pointed out, such an express prohibition was en-

tirely unnecessary. The long settled im:aunity by impli-

cation from the Constitution itself ‘ook care of that.

But, appellant feels that it must have something to sup-

_port its position in the case. So it reaches out for a

“straweand contends for an immunity of “machinery”

as personal property within this express prohibition of

the amendment. If this case involved a Pennsylvania

statute Imposing a personal property tax on machinery,

appellant would have some’basis for its cunterition. But

the Pennsylvania statute here. involved, as quoted by

appellafit itself on p. 5 of its Brief, is a real estate tax

statute, and the issue in this case is: whether that stat-

ute,-as construed and applied in Pennsylvania, is repug-

nant not to the Congressional prohibition against taxa-

tion of personal property but to the Congre ssional per-

mission for taxation of “any real property”.

(15) We are bound to take particular exception

to appellant's preposterous suggestion (see p. 26 of its

_ Brief) that to construe this Act of Congress so as to

permit local taxation of appettant’ s manufacturing

plants as all other local manufacturing plants are taxed

‘ would be’to allow tocal ‘industrial communities to profit

-at the expense of the nation. Who should know better

than appellant the tremendous increase in necessary

_ municipal expense required to protect and serve its

plants and the influx of industrial workers and their- «,

families consequent upon the. establishment ‘and ‘opera-

tion of its plants? . What matters it that’ four- sevenths

JS

4

*

24 ‘ ; Argument. ..

of the money spent. by Defense Plant Cofporation was

invested in machinery? Mere land with a building upon

. it does not constitute a manufacturing plant. It re--

quires the machinery to make it such. It is the instal- ©

lation of the machinery and the operation of the result-.

_ ant plant that causes the real increase in the required

municipal servicing of the plant and-its workers. Where

are appellant’s figures to prove. profit to any local in-

dustrial community by the inclusion, in an assessment,

of the machinery essential to the establishment and

operation of a Defense Plant Corporation's plant located

’ therein? Are not the people of such communities part

‘pf the people vA the natiof itself? And do not such —

people heag their

share of the national expense,—inelud-

ing whatever taxes are imposed upon appellant threugh-

out the nation? How, then, does the concept of a manu. .

facturing plant as a single entity composed of land, -

building,. and machinery essential to its operation enable.

either the local community where it is located or the.

people who inhabit the community to “take advantage”.

of a national erney:

(16: Appellant concedes ‘p. 16 of its Brief) that

United States v. County of Allegheny, 322 ULS. 174, “did

‘not present the issue now before the Court”. We take

oecasion, however, to quote ‘an excerpt frota the ma-

jority opinion there that is of vital importance rere. At

p. 199, the Court said: ,

“The equities in this unfortunate conflict between the

United States and-one of its most important indus-

trial communities are not capable of judicial. as cer-

tainment or equaliaafion. Whether a county loses

more than it gains by such federal activity, and

y Se Argument. a : =

= other federal benefits ought to be considered —

if a balance were to be struck between advantages

and disadvantages, we cannot say. The ddjust-.

ment.of benefits and burdens is for other. depart-_

ments, and studies to-that end have been under-

_ taken. We can only say that our. constitutional

‘system | as judicially interpreted from, the beginning

leaves no room for the: localities to impose ,cither

compensatory or retaliatory taxation on Govern- -_

ment property interests.» Their remedy lies in

petition - the Federal Congress, which also is — se

— ess.’

The relevancy of that _ language to this case is: clear.

Here we have the response of Congress to just such a

‘petition by “the localities”. Here, Congress itself re-

solved the coriflict between thé interests of Defense

Plant Corporation. ( whosé very name signifies ‘its own

industrial character) and those of local “industrial com-.

munities”. Viewed in the light of the language of this

Court, the re il question higré becomes this: —

Did Congress. intend this plant of appellant to

be taxed ‘in the same manner 4s all other plants in

/ the same industrial community are taxed?

: We submit that this question must be answered in the

affirmative. Had the United States been the owner of

the entire manufactory. involved in United States v.

County of Allegheny and had such a statute been present

in that,case as is present in this case, who can doubt”

how this Court would have decided that case?

I .

(17) In the saiinton of the Court below ‘R. 86},

reference is made to certain language of this Court ger-

_ Mane to the ai heat under argument and which |

.

“

RNs a Argument,

will. bear repetition. In: U.S. ex rel: T. V. A. v. Powelson,

319 U. S., 266, 279, this Court said:

““Though the meaning of ‘property’ as used in

Section 25 of the Act [involved in that case} and in |

_ the Fifth Amendment is‘a federal question, it will

ee normally obtain its content by reference .to the

“local law.” ;

The Act. nivolved in that case was’ the “Tennessee ©

Valley Authority Act of 1933” 48 Stat. 58. Section 25.

of the Act is set forth in 16 U.S. C. $831x. If the con-

tent of the word “property”, as there used, is normally

to be obtained by reference to the local law, how much © |

more so is the term “real property” , as used in the Act

here involved, when a comparison of th® contexts and .

tributed no legislative intention for uniformity in defi-

nitior§ to the general word “property” in the Act there

before it. In deciding the case, it left the application of

the Act to the law of the State where the property was

located. Can the Court do otherwise in the legislative

circumstances here?

Another case cited by the Court- Aaa TR. 80) is

especially pertinent, —- -U. S. v. Bechtold Company, 129

>

a

F. 2d, 472 (C. C. A. 8, 1942). It well deserves the atten-..

tion of this Court in its*consideration of this appeal.

The issue and its decision were as follows. The Historic

roger Act of August 21, 1935, 49 Stat..666 (16 U. S. C.

<3461-467), gave the Secretary of the Interior the power

to ‘acquire in the name of the United States by gift, pur-

‘chase, or ‘otherwise, any property, personal or real”.

Acting under this Act, the United\ States proceeded to

condemn certain property described in the petition as

“real estate” located in St. Louis, Missouri. The Govern- |

, the purposes oft the two Acts is made! This Court a

Argument. nal ee Aa 27

“» €

'ment contended that it was liable to compensate the:

_- owner only for the land and the building thereon erected.

“The owner cantended that the ‘real estate” being con-

demned was “a completely integrated plant, including

land, building, equipmeyt and machinery”, and that, ae-

cordingly, the Government was liable under the Act for

the value of the entire plant. The Court held in ‘favor

of the owner. It said (p. 477):

. “Whether or not these fixtures and machinery

under the fdcts disclosed constituted a part of the

realty was dependent upon the law of the State of

Missouri, the lex loci rei sitae. This was ‘a question

- of real estate which must always be determined by .

the law of the state in which the realty is located. .

Clark v. Clark, 178 U. S. 186; Restatement, Conflict _

of Laws, Sec. 208. This is true regardles 3s of how ©

the court may have acquired jursidiction. or where

the court may be located. The same princip! ie «is

~ applicable in the determination of the question as -

to what law -governs. in. the ascertainment of

. whether certain articles are or are not fixtures. The

' law of the state where the property is situate also

controls in deciding whether annexation of, a chattel

_ toa freehold makes it 4 part of the realty.. Triumph

Electric Co. v. Patterson, 8 Cir., 211 F..244; Manu- -

, facturers Bank & Trust Co. v. Ixauchli, 8 Cir. 118 F.

. 2d 607; Bergh v, Safe Co., 2 Cir., 136 F. 368. |

We therefore look to. the sae of Missouri. It is

well established by controlling decisions of Missouri

that where machinery i is placed in a building amd the

land, building and machinery are used together as a

factory or plant, the machinery is a part of the

realty.”

o~

28 » Argument.

Appellant attempts to treat these cases lightly by

referring to them as “condemnation cases” (pp- 53+54-

of its Brief). But a ruling principle of law loses. noné

of its force by its application to a particular type of case.

The fact that local law governs the application.of federal ©

condemnation acts is strong evidence that it’governs the

sadliection ‘of the Act.in the case at bar; whose ‘plain

purpose is to permit “local taxation” of “any' real prop-

erty” of this appellant corp®fation. , .

(18) We conclude this argument on-the merits of 5

the decisive question in this case, therefore, by submit-

ting that Congress intended appellant’s real property to

be subjected to local taxation exactly as other real prop- i

erty is taxed in the several States, and, as a necessary —

corollary to that intention, that Congress intended the

words “any real property” to include and compréhend

_ whatever is real propetty for taxation purposes in the

.. particular State where it is located.

il.

This appeal fails to peeneet a substantial

. Federal question.

(1) As Wve-view this appeal, it presents but one

Federal question, i.e., whether Congress. intended the

application of the Act thee involved to depend upon local.

faw. There is complete unanimity of opinion upon the

question by both of the courts below, and we contend it

to be so entirely free from reasonable judicial doubt as

to deprive it of reviewability under Rule 12, par. 1, of °

this Court. It is not a substantial ‘queation.

Argument. . - 29

© (2) The Act of Congress here’ involved has been

z the Jaw since 1932, and the amendment bringing De‘ense

Plant Corporation’s real property within it has been in °

force since 1941. But the exhaustive Brief for appellant,

» .which. hag apparently been in preparation since this

Court noted probable jurisdiction on March 26, 1945,

(R.'100), fails to cite a single case wherein any judici

doubt has ever been expressed as to the legislative in-

‘tent that local law should govern. If.any such case

‘exists,” appellant’s extraordinarily extensive research

"surely would have uncovered it. We-know of none.

(3) As tothe clarity of the inte... ‘ion! of Congress,

we rely on the argument hereinbefore made upor ‘the

question. Resting upen'that argument, we respect-_

fully submit that this Court itself will find the question’ -

to be free/from any doubt. If so, appellee’s motion. for -

dismissal, not yet a a will receive an appropri-

ate disposition: ; :

ets

: Conelusion: This appeal should> be dlis-

missed. or. the appealed judgment _ should be

“affirmed.

(1) .As shown by: Paragraph Tw enty of the agree-

ment of lease from appellant to-Curtiss-Wright Cor- -

poration (R. 19), the economie burden of the tax is im-

- posed on the lessee. Thus, the’ situation here in that

respect is just the reverse of that in U. 8. v. County of

—

a)

- 30 ; ; "Argument.

»

‘

Allegheny, supra, where its ultimate burden was upon

the Goversment..

(2) “Said paragraph of.the lease specifically covers

all taxes “with respect to ar upon the site, the buildings,

or ‘the.machinery, or any part thereof”... The lease is

dated Mareh 5, 1947 (R: 11). The ‘amendment’ to the

Act of vongrens granting permission for local taxation

+ - Of appellant’ s “real property” » was enact ted on June 10,

1941. (R. 9). Thus, while the: amentiment. was pending

_ and. undoubtedly in anticipation of -its* enactment, appel-

lant “evidence d its expectation that its “real property”*

would be made sQbject to local taxation and tha® such

taxation would include its machinery as part of its plant,

pursuant. to Pennsylvania law. Now, ‘when its plant

_ is so assessed, ‘appellant inconsistently objects, . even

—— it does not have to aed the resultant tax.

.

- ; é :

e (3) The act of, the seiounion in fixing the value

3s

of the machinery is not to be eonstrued as cohstituting

a separate assessment of it:: Under settled Pennsylvania

. law, this is mere clerical procedure for thé information

of | the land owner. “While the proper cty might have

_ been valued in-one item, the integrity of the assessment

- was'not affected by. the sact that the assessor enumer- -

ated the eiements entering into the aggregate of the

valuation on each”: Guthrie ‘v. Pittsburgh Dry Goods

Co., 47 Pa. Superior Ceurt 384; 400. Thus, the form

of the assessment of appellait’s pliant here involved

, (R._83, note 1) has no material significance. :

+)

% 5 a xX

(44, In conclusion, appellee ’ respectfully inlet

that, Yo this appeal is not dismisséd_ ‘for: ‘want of sub-

oa

G

«

» . e

.

rain ee ace 31 - &

stantialityin the Fedenal question it presenta, the appeal

is without merit and the ongimictl below should be

.. affirmed. fone :

. ' a ae

* JOHN G. MARSHALL, 3

County Solicitor | ree

¢ ° > z ' .

3 * ‘

‘ Ls Epwarp G. .BoTHWELL, .

'. Attorneys for Beaver County, Pa..

. p Appellee tees anh re ae

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