Plaintiff sued to recover 1959 personal property taxes paid defendants under protest. From summary judgmеnts against them, defendants appeal.
Tbe personal property involved consisted of machinery and equipment owned by tbe United States, located in plaintiff’s plants in Detroit and used by it, as a defensе contractor, in making goods for tbe United States under contracts between them.
The trial court’s decision was planted on our bolding in
Continental Motors Corporation
v.
Township
*237
of Muskegon,
Defendants stress what they term distinctions on the facts between this case and Continental. These’ may be pertinent to other objections raised by plаintiff to the tax. They are not so as to the controlling'' point in Continental, also raised by plaintiff here,' that no statutоry (here also charter) authority exist-' ed 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 dеcisive 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 рroperty, 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 *238 charter of Detroit, title 6, ch 2, § l, provides for “taxes upon personal property.” The charter does not and could not confеr taxing powers beyond those ■authorized by Constitution and statute. Clearly, the •tax is on the property.
Defendants say Continental is not controlling be‘cause there are distinctions between the governing’ •law involved here and in Continental. These arе said to consist of the following, namely, (1) that this ^assessment is made under a Detroit charter provision that “рersons in possession of any personal ]pr©perty shall pay all taxes assessed thereon,” 5 while the assessment made by a township in Continental wаs made under the State’s general property tax law which did not contain a comparable' рrovision, and (2) that the tax here is not, as was considered in Continental, a tax on possessory or other limited interеsts 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 persоn in possession.
The holding in Continental may not thus be escaped. This Court held therein (p 199) that as of 1959 “our law authorized only an аd 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, whiсh is immune therefrom. See
City of Detroit
v.
Murray Corporation of America,
Either way the tax was improperly assessed.Cases such as
Detroit Shipbuilding Co. v. City of Detroit,
As noted in Continental, the 1959 statutory amendment, applicable to 1961 and subsequent taxes, provides, with respect to facts like those in the instant cаse, 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 possessоry 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 defеndants would not avail to preclude a verdict for plaintiff,. then plaintiff’s motion- for summary judgment, under Court Bule .Nо..30 (1945), then,ip.
*240
effect, should be granted.
Whittenberg
v. Carnegie,
Affirmed. No costs, a public question being involved.
Notes
This amendment provides: “personal prоperty 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 оf 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 RA 1958, No 209 (Stat Anm 1957 Cum Supp § 7.1 et seq., as so amended).
Title 6, ch 4, '§ 1, p 180.