In determining the valuation of coal land for taxation, where other real estate in the county has been assessed below its actual value, the average ratio of assessed to actual value should be ascertained as the basis for valuation

of the coal land.

[Ed. Note. For other cases, see Taxation, Cent. Dig. § 585; Dec. Dig. § 348.*]

Appeal from Court of Common Pleas, Luzerne County.

3. TAXATION (§ 348*) - VALUATION OF REAL | he is required to bear more than his proporESTATE-UNIFORMITY. tionate share of the public burdens. Most of the controversies arise in this class of cases because this simple and effective remedy has not been applied. When the attempt is made, as it too frequently is made, to assess one kind of real estate at full value, another at half value, and another at third value, or even less in some instances, the cry of unjust discrimination is raised, and resistance or protest surely follows. Such a method of valuation is repugnant to the constitutional provision requiring uniformity. A uniform standard of valuation must be adopted, and a uniform tax rate must be applied. This is what the framers of the Constitution meant, and in aid of this principle the Legislature in 1889 (Act April 19, 1889 [P. L. have due regard for the valuation of other 37]) provided that the courts on appeal shall real estate in the same district. Actual market value is the proper standard to ascertain

The Lehigh & Wilkes-Barre Coal Company appealed to the common pleas from the tax assessed against it by Luzerne County, and from the order of the court on such appeal, the company appeals. Reversed.

Argued before MITCHELL, C. J., and FELL, BROWN, POTTER, and ELKIN, JJ. A. H. McClintock, F. W. Wheaton, G. R. Bedford, and A. L. Williams, for appellant. S. J. Strauss, Wm. C. Price, and Edmund E. Tones, for appellee.

ELKIN, J. The two assignments of error in this case raise the question of whether the learned court below, having found as a fact that other real estate in the county had been assessed below its actual value, should have ascertained the average ratio of assessed to actual value as the basis for ascertaining the valuation of the coal lands in question for the purpose of taxation. In a recent case from Lackawanna county (Delaware, L. & W. R. Co.'s Tax Assessment, 73 Atl. 429), it was held that in determining the proper valuation of a particular tract of land for taxable purposes due regard must be had for the valuation of other real estate in the same district. We think that case rules this one on the question of uniformity here raised. The Constitution provides that all taxes shall be uniform upon the same class of subjects within the territorial limits of the authority levying the

Real estate is the taxable subject with which we have to deal in the present case, and the county of Luzerne is the district within the territorial limits of which the authorities levying the tax are prescribed. The mandate of the Constitution speaks to all authorities having to deal with the subject of taxation. The principle of uniformity is the guidepost pointing the way for the local assessor who makes the assessment in the first instance; for the county commissioners when the returns are made and considered; for the board of revision when at the triennial assessment valuations are revised, corrected, and equalized; and for the courts in making such orders and decrees as may seem equitable and just on appeal.

It is within the power of the local authorities to correct many of the evils complained of by requiring all real estate to be assessed at its full market value, and if this be done, no taxpayer could then justly complain that

assessable value, and the Acts of April 5, 1834 (P. L. 511) and July 27, 1842 (P. L. 441), fixed the standard of valuation for real estate at the price it would bring at a bona fide sale after public notice. In other words, market value at public sale is the proper basis of valuation for the purpose of taxation. This is still the law, but in practical application it is scarcely ever enforced. The framers of the Constitution no doubt had this thought in mind when the principle of uniformity was written into the fundamental law. All real estate should be assessed at its actual market value, but it must be assessed at a uniform standard of valuation throughout the district, even if that valuation is below market value.

It is the duty of the courts acting under the authority of the act of 1889 to enforce a uniform valuation of all real estate in the district when this question is properly raised on appeal. We, therefore, agree with the contention made by the learned counsel for appellant in this case. The difficulty of determining the ratio of actual to assessed value was adverted to by the learned court below, but it is not a sufficient reason for denying appellant the right to have its land assessed upon the same basis of valuation as other lands in the same district are assessed. These are difficulties with which courts are frequently confronted, and must be met and solved with an eye single to the legal rights of the parties. When the record is remitted, the court below must determine whether the evidence already offered is sufficient for the purpose of ascertaining this ratio. If it is, and this is largely and primarily a question to be determined there, the average ratio can be ascertained from the facts already established. If, however, the court below shall be of opinion that the evidence is not sufficient for this purpose, the case can be opened up and more evidence introduced.

[Ed. Note. For other cases, see Taxation, Cent. Dig. §§ 1457-1461; Dec. Dig. § 728.*] Appeal from Court of Common Pleas, Ly-dence of an assessment in fact, and the act coming County.

ble by law. Act July 27, 1842 (P. L. 445); | ed their title under which the appellees Act April 29, 1844 (P. L. 501). It would be claim, and the latter are now estopped from no violent presumption, if it were necessary asserting it. This is based upon the alleged to resort to it, that the valuation upon which fact that, after the county commissioners had the assessment was made was settled by purchased the 400 acres of land in Lewis them in their capacity as a board of re- township, they continued to assess and collect vision. But it is not necessary. In Hubley taxes upon the same from the appellants. If v. Keyser, 2 Pen. & W. 502, Mr. Justice the evidence disclosed this, the second conHuston, speaking of the act of 1815, says: tention of the appellants might require con"The object was to make the sale and deed sideration from us, but there is no evidence confer a title without proof of any one showing that the county commissioners ever prerequisite, except that the land was un- collected taxes from any one on the 400 acres seated, and that a tax was charged by the of land situated in Lewis township after commissioners, regularly or irregularly; that they purchased the same at the treasurer's this tax was unpaid, and the land sold and sale in December, 1894. The taxes assessed not redeemed within two years.' In that and collected by them from the tract in Lewis case the objection to the sale was that there township after their purchase in 1894 were was proof that the assessors had not valued upon 700 acres. It is true taxes were asor returned the land as unseated for assess- sessed and collected from 400 acres in Cogai It was argued there, as here, that House township, but there is nothing to show the valuation by the commissioners was un- that the county commissioners in assessing authorized, and the assessment a nuility: and collecting taxes from this tract, which but it was held otherwise by the court. In- had been returned by the Cogan House towndeed, in citing this case afterwards, in Fager ship assessor, knew that the same was, a v. Campbell, 5 Watts, 288, Chief Justice part of the 1,100 acres in the Strawbridge Gibson said: "The tax book was an official warrant, situated in Lewis township. As document, and, according to Hubley v. Key- long as the assessor of Cogan House townser, it was both competent and sufficient to ship returned 400 acres of land as taxable in show that the land had been assessed.' Both that township, the county commissioners these cases were prior to the act of 1842. simply discharged their duty in regularly It was indeed expressly decided in Devinney assessing it and collecting the taxes on it. v. Reynolds, 1 Watts & S. 328, that a tract They were not called upon to satisfy themof unseated land may be sold by the treas- selves as to the accuracy of this return. urer for the nonpayment of taxes upon an Brown v. Hays, G6 Pa. 229. The Elk Tanning assessment made by the commissioners with- Company at all times knew that it was payout the intervention of the assessors. ing taxes upon but 700 acres of land in assessors,' said Mr. Justice Rogers, 'value the Lewis township, and that, without any oblands, but the commissioners make the as- jection from it, the county was collecting sessment; from which it follows that you from a regular return taxes on 400 acres cannot avoid a sale for taxes merely be- owned by it in Cogan House township. Uncause you are unable to prove that the asses- der these facts, there is no basis for the claim sors had performed this ministerial duty.'" of the appellants that the county of Lycoming There was some question, growing out of or its successors are estopped from asserting apparent alteration of figures in the assess- title, for it did nothing after December, 1894, ment book, as to the identity of the tract as to the 400 acres of land situated in Lewis that had been assessed by the county com- township. But, aside from all this, Good missioners, whether it was 5,665 or 5,666, was a bona fide purchaser, and, when he but the jury were definitely instructed that, purchased from the county commissioners, unless they were satisfied by evidence "clear, the records showed a valid sale of the 400 precise, and indubitable that tract 5.666 had acres to them and nothing subsequently done been assessed for the taxes for the year by them in impairment or abandonment of 1893," the plaintiffs could not recover. This their title, and his vendees, the appellees, is all the defendants could have asked for on have succeeded to all his rights, which, bethe question of the identity of the tract. ing legal, cannot be disturbed because of Whether the taxes that were assessed for hardship that the appellants may suffer. 1893 against this tract had been paid by The law in this proceeding can have no conthe appellants or Proctor, their grantor, was cern with their equities. Titles by tax sales a pure question of fact, depending upon tes- would often become as unstable as water, if timony to which we need not here refer. It equities should be permitted be permitted to prevail is sufficient to say that, though the jury could against them after having been legally achave found from that of B. S. Bentley that quired. the county of Lycoming had no claim for taxes upon the land that was sold, they were not required to so find in view of the testimony of Updegraff, the deputy county treas

rer.

The

The next contention of the appellants is

Taxes were paid upon but 700 acres of the 1,100 acres which the county commissioners assessed for the year 1393. The land was all unseated, and it could not, and did not, appear what part of the 1,100 acres was included in the 700 acres; and so of the 400

TEMPT.

a court of record by a newspaper publication in It is contempt at common law to scandalize respect to its decision in a case no longer pend

[Ed. Note.-For other cases, see Contempt, Cent. Dig. 14; Dec. Dig. § 8.*]

Proceeding by the State, on the information of the Attorney General on his own motion, against David W. Hildreth to punish defendant for contempt of court. Heard on demurrer to complaint and on answer, and defendant adjudged guilty of contempt.

any 400 acres of the tract of 1,100, and the | 4. CONTEMPT (§ 8*)-ACT CONSTITUTING CONright of the purchaser was to locate the 400 acres wherever he pleased. In Everhart v. Dolph, 133 Pa. 628, 19 Atl. 431, the owner of a tract of 276 acres of unseated land, return-ing. ed and taxed as such as a whole, paid the taxes upon 210 acres thereof only; the same not having been designated as any specific part of the 276 acres. He allowed the remaining 66 acres to be sold for the balance of the taxes assessed, and it was held that the purchaser of the tax title had the right to locate his purchase upon such part of the whole tract as he might choose. The right to so locate was the right acquired by the county commissioners when they became purchasers of the tract in controversy. They acquired everything that an individual purchaser could have acquired, and whatever they acquired passed to their vendee and through him to the appellees. Sales for unpaid taxes are purely statutory, and no act of assembly makes any distinction in the rights of purchasers, whether they be individuals. corporations, or the representatives of the county compelling the sale.

Whether the right of election had been exhausted by a prior location different from the one claimed by the appellees was a question for the jury, and was properly submitted to them as such.

All of the assignments of error are overruled, and the judgment is affirmed.

Argued before ROWELL, C. J., and MUNSON, WATSON, HASELTON, and POWERS, JJ.

John G. Sargent, Atty. Gen., for the State. Young & Young, for respondent.

ROWELL, C. J. This is an information presented to this court by the Attorney General ex mero motu, asking that the respondent be cited to show cause why he should not be punished for contempt for defaming the court in an article that he wrote and published in his own newspaper of and con cerning a certain decision that the court had recently announced that finally determined the case in which it was rendered. The respondent was cited and appeared.

The article entirely misconceived and misstated the ground and reason of the decision, and the respondent did not claim that it was not defamatory, as it most clearly was, and highly so, for it impugned the motives of the

STATE ex Inf. ATTORNEY GENERAL v. court and charged it with corruption; but

HILDRETH.

(Supreme Court of Vermont. General Term. Oct. 6, 1909.)

he objected by demurrer that, as the case was not pending when the article was published, but had been finally determined, the court had no jurisdiction to proceed against him for contempt, but that he could be pro

1. CONTEMPT (§ 5*)-STATUTES. P. S. 5898, providing that a person who defames a court of justice or a sentence or proceeded against only by indictment or inceeding thereof, or defames the magistrate. judge, or justice of such court as to an act or sentence therein passed, shall be fined no more than a specified sum, does not change the common law governing contempt, and, in the absence of any other statutory provision or constitutional provision, the common law governing contempt is in force in Vermont.

[Ed. Note. For other cases, see Contempt, Dec. Dig. § 5.*]

formation. This objection was not sustained, the demurrer was overruled, and the respondent adjudged guilty of contempt and fined. There are undoubtedly many cases in this country that support the respondent's contention. But it will be found, we think, that, though a few of them rest upon constitutional provisions, the more part rest upon statutory provisions that expressly or im

2. STATUTES (§ 222*) - MODIFICATION-STAT-pliedly undertake to limit the jurisdiction of

UTES.

The rules of the common law are not to be changed by doubtful implication in statutes nor overturned except by clear and unambiguous language in the statute.

[Ed. Note. For other cases, see Statutes. Cent. Dig. § 301; Dec. Dig. § 222.*]

3. CRIMINAL LAW (§ 13*)-MODIFICATION OF COMMON LAW-CUMULATIVE REMEDY.

courts to punish for contempt, and to confine it to pending cases; and, although it is very generally held that Legislatures cannot thus limit and confine the power of the courts, yet many courts, it would seem, have been content to follow those provisions without questioning the power of the Legislature

Generally a statute which fixes a penalty to make them. But whatever may be true for an offense does not expressly or impliedly of those cases the common law governs here, cut off the common-law prosecution or punish- for we have no constitutional provision on ment for the same offense, but gives a cumula- the subject, and no statutory provision save tive remedy only.

[Ed. Note. For other cases, see Criminal that which enacts that a person who deLaw, Cent. Dig. §§ 13, 14; Dec. Dig. § 13.*] fames a court of justice, or a sentence or