Opinion
Calendar Nos. 121, 122, Docket Nos. 50,260, 50,261.
Decided February 3, 1964. Certiorari denied by the supreme court of the United States June 15, 1964.
Appeal from Wayne; Moynihan, Jr. (Joseph A.), J. Submitted December 5, 1963. (Calendar Nos. 121, 122, Docket Nos. 50,260, 50,261.) Decided February 3, 1964. Certiorari denied by the supreme court of the United States June 15, 1964.
Action by General Motors Corporation, a Delaware corporation, against the City of Detroit, a municipal corporation, and its treasurer, to recover sums paid under protest for tax assessed against it as user of personal property belonging to the Federal government. Similar action against the County of Wayne and its treasurer. Causes consolidated in circuit court and on appeal. Summary judgments for plaintiff. Defendants appeal. Affirmed.
Dickinson, Wright, McKean Cudlip ( Patrick J. Ledwidge, Aloysius F. Power and Donald K. Barnes, of counsel), for plaintiff.
Robert Reese, Corporation Counsel, John H. Witherspoon, Julius C. Pliskow, and Robert D. McClear, Assistant Corporation Counsel, for defendants City of Detroit and its treasurer.
Samuel H. Olsen, Prosecuting Attorney, Aloysius J. Suchy and William F. Koney, Assistant Prosecuting Attorneys, for defendants County of Wayne and its treasurer.
Amicus Curiae: Miller, Canfield, Paddock Stone ( Frederic B. Besimer, George E. Bushnell, Jr., and Richard A. Jones, of counsel), for the Board of Education of the School District of the City of Detroit.
Plaintiff sued to recover 1959 personal property taxes paid defendants under protest. From summary judgments against them, defendants appeal.
The personal property involved consisted of machinery and equipment owned by the United States, located in plaintiff's plants in Detroit and used by it, as a defense contractor, in making goods for the United States under contracts between them.
The trial court's decision was planted on our holding in Continental Motors Corporation v. Township of Muskegon, 365 Mich. 191, that prior to the amendment contained in PA 1959, No 266 (not applicable to 1959 taxes), Michigan's general property tax act did not authorize taxation of possessory interests held by individuals in personal property owned by the United States.
This amendment provides: "personal property not otherwise taxed under this act which is in the possession of any person, firm or corporation using same in connection with a business conducted for profit shall be deemed the property of such person for taxation and assessed to him accordingly." CL 1948, § 211.14, as amended (Stat Ann 1960 Rev § 7.14).
CL 1948, § 211.1 et seq. as then last amended by PA 1958, No 209 (Stat Ann 1957 Cum Supp § 7.1 et seq., as so amended).
Defendants stress what they term distinctions on the facts between this case and Continental. These may be pertinent to other objections raised by plaintiff to the tax. They are not so as to the controlling point in Continental, also raised by plaintiff here, that no statutory (here also charter) authority existed for collection of the 1959 tax in question.
Defendants' discussions of where the legal incidence, as distinguished from economic burden, of the tax falls, and whether it represents an assessment in personam or in rem, while of possible value in a consideration of the question of implied constitutional immunity from State taxation of the Federal government, its agencies and property, are not decisive of the applicability of Continental. Michigan Constitution 1908, art 10, § 3, provides for a personal property tax to "be levied on such property" and that it shall be "taxation for such property" and "taxation on such property." The mentioned general property, tax act implements this by providing "that all property, real and personal * * * shall be subject to taxation." In Continental this Court said (p 199) that our law authorized an ad valorem tax "on the personal property itself." The city charter of Detroit, title 6, ch 2, § 1, provides for "taxes upon personal property." The charter does not and could not confer taxing powers beyond those authorized by Constitution and statute. Clearly, the tax is on the property.
See CL 1948, § 211.1 (Stat Ann § 7.1). — REPORTER.
City of Detroit, Municipal Code, 1954, charter section, p 170. — REPORTER.
Defendants say Continental is not controlling because there are distinctions between the governing law involved here and in Continental. These are said to consist of the following, namely, (1) that this assessment is made under a Detroit charter provision that "persons in possession of any personal property shall pay all taxes assessed thereon," while the assessment made by a township in Continental was made under the State's general property tax law which did not contain a comparable provision, and (2) that the tax here is not, as was considered in Continental, a tax on possessory or other limited interests in personal property separate and distinct from the property itself, but is actually a tax on the whole interest in the personal property, made, by ordinance, payable by the person in possession.
Title 6, ch 4, § 1, p 180.
The holding in Continental may not thus be escaped. This Court held therein (p 199) that as of 1959 "our law authorized only an ad valorem tax on the personal property itself without providing for taxation of possessory interests". If the tax is on a possessory interest, it is invalid under Continental.
On the other hand, if, as defendants urge, the tax is on the entire interest in the personal property, it is a tax on personal property of the United States, which is immune therefrom. See City of Detroit v. Murray Corporation of America, 355 U.S. 489
( 78 S Ct 458 and 486; 2 L ed 2d 441 and 460), and cases therein cited beginning with McCulloch v. Maryland, 17 US (4 Wheat) 316, 376 ( 4 L ed 579), and including such as United States v. Allegheny County, 322 U.S. 174 ( 64 S Ct 908, 88 L ed 1209).
Either way the tax was improperly assessed. Cases such as Detroit Shipbuilding Co. v. City of Detroit, 228 Mich. 145, and City of Detroit v. Gray, 314 Mich. 516, interpreting the charter provision here pressed by defendants, are of no help to them because those cases involved personal property owned by one person and in the possession of another, not, as here, property of the United States immune from taxation.
As noted in Continental, the 1959 statutory amendment, applicable to 1961 and subsequent taxes, provides, with respect to facts like those in the instant case, that the property shall be deemed to be the property of the user (here the plaintiff) for taxation. Under City of Detroit v. Murray Corporation, supra, the imposition of the tax thereunder would encounter no Federal constitutional barrier because the Court said that it would amount to a tax on the user's possessory interest, not on United States property. Detroit's charter provision does not, in terms, undertake to tax the user's possessory interest, as does the 1959 statutory amendment, but, instead, imposes the tax on the property and makes it chargeable against the possessor.
Defendants say this case should not have been decided on a motion for summary judgment because the pleadings and their affidavit of merits gave rise to issues of fact. However, despite the existence of disputes of fact, when resolving all of them in favor of defendants would not avail to preclude a verdict for plaintiff, then plaintiff's motion for summary judgment, under Court Rule No 30 (1945), then in effect, should be granted. Whittenberg v. Carnegie, 328 Mich. 125.
Affirmed. No costs, a public question being involved.
KAVANAGH, C.J., and KELLY, BLACK, and O'HARA, JJ., concurred.
SOURIS and SMITH, JJ., did not sit.
ADAMS, J., took no part in the decision of this case.