
    Supreme Court of Pennsylvania.
    GREENOUGH v. THE FULTON COAL CO. et al.
    
    Courts are not required to refrain from expressions Of opinion upon subjects of contest before it, nor is it error when a court clearly puts the case to the jury on its tiue ■question.
    By virtue of the act of I2lh April, 1842, commissioners’ books are evidence of assessment without other evidence of action on the part of township assessors.
    Fixing a rate is not charging the land with a tax, though the rate is essential to the •charge.
    Error to the court of Common Pleas of Northumberland, county.
   Opinion delivered February 9, 1874, by

Agnew, C. J.

If we read together the entire charge in this case, including the answers to the points, we find it not contradictory or erroneous. In the main, it was a fair exposition of the law applicable to the facts. The statement that the valuations are to be made and returned by the township assessors, and that these returns, with their valuations, and the rates affixed, constitute a legal assessment, was made in answer to a point, and repeated in the charge evidently in consequence of a contest upon the question, what constitutes a true assessment ? It cannot be expected that the court shall refrain from any expression of opinion upon subjects of contest before it, nor is it error when the court clearly puts the case to the jury on its true question. The following cases show that the court did not mistake the character of a regular assessment. Walls v. Smyth, 5 P. F. Smith 159, where the cases are collected. Lyman v. City of Philadelphia, 6 P. F. Smith 501; McReynolds v. Longenberger, 7 P. F. Smith 13. But the court did not charge that the plaintiff was bound to prove such an assessment in order to support a rate fortaxes ; and, on the contrary, referring to the act of 12th April, 1842, making all the records of the county commissioners charging lands as unseated with arrears •of taxes evidence of assessment, the judge expressly instructed the jury that there was evidence of an assessment upon the tracts of land mentioned .and described in the commissioners’ books, and that those books were evidence of an assessment, by virtue of the act, without other evidence of action on the part of township assessors. The same instruction is conveyed in the answers to the third and fourth points, and is repeated and enlarged upon in the last part of the charge. It is in vain fo contend that the jury must have(been constrained by the definition of a regular assessment to consider it as binding on them in their finding. . They were clearly and often informed that under the act of 1842,. the commissioners’ book containing the charges against this body of lands, and for which they were-sold, was sufficient to support the sale. The judge took fairly the distinction, arising upon the act of 1842, which-is taken by our brother Sharswood in the case of Hess v. Herrington, 30 Legal Intel. 241, holding that when such evidence exists, the irregularity in the actual assessment,, if any, is aided by the fourth section of the act of 13th March, 1815, declaring that “no alleged irregularity in the assessment or in the process- or otherwise, shall be construed or taken to affect the title of the purchaser, but the same shall be declared to be good and legal.” There was but one particular in which the judge deemed the book deficient, and this he properly submitted to the jur.y, to wit: the time when the assessment in the commissioners’ book was made. There was no evidence whatever on the face of the book of the precise time of making the assessment or of making the entry in the book, and none appeared in the minutes of the commissioners. The fact was, therefore, necessarily submitted to the jury on the-evidence, and with the distinct instruction of the court, that presumptively the assessment was made in the year 1864, a presumption most favorable to the plaintiff; otherwise the evidence itself left the jury pretty-much at sea, without star or compass.

The plaintiff contends that this entry in the minutes of February 3, .1864, — “ the board of commissioners agree to fix the rate of county tax at two mills on the dollar, the same as 1863,” determines the time of the assessment. But this entry does not stand alone, and is followed by subsequent entries on the minutes, tending to show that the assessment was not complete on the third of February, 1864, and that the sum stated was only the intended rate for all county taxes, on seated as well as unseated lands. The entry on the minutes, March 25, 1864, that a full board of commissioners met and signed the assessment books, shows that the general assessment was not then complete. “Books” here is in the plural, and evidently refers to the assessment books for the several townships, commonly called duplicates, which is strengthened by the entry on the 20th of April following that “the board of commissioners fix the rate of county tax at two mills on the dollar for the year 1864.” This minute of. the final fixing of the rate wears a final aspect not belonging to the minute of 3d Febru-r ary preceding, which looks more like a prospective intent. It seems to be very, evident that the general assessment of county tax for all purposes was-not complete until at least the 20th of April, 1864, while as to the unseated lands there is strong evidence of incompleteness even then. This uncertainty of time makes it evident that the subsequent minutes of November 20, 1865, November 30, 1865, and December 13, 1865, were not irrelevant. Taking them in connection with the mode of keeping the commissioners’ book by biennial periods, it look:-, very much as if the commissioners of Northümberland county were very irregular in their mode of dealing with the unseated lands, and as if they thought it quite sufficient to have the unseated land list completed in time for the treasurer to advertise the list for sale every second year. Undoubtedly they had no authority thus to link together the years 1864 and 1865, and to change the rate for 1864, after they had duly assessed the unseated lands for that, year; but such being their irregular action, we cannot say that the court erred in receiving these minutes as evidence upon the question of fact, when they actually completed the assessment for 1864. It cannot be truly said that these entries on the minutes throw no light on the question of fact, and, therefore, we cannot pronounce them so irrelevant as to make their admission erroneous. The time of the actual and final' assessment was important to the defendants’ case, for, if the land was seated, as the evidence tends to show, early in March, 1864, before final assessment, or if the assessment was, in point of fact, not made until within a year before the time of sale, the treasurer’s sale conveyed no title.

The argument is fallacious that the rate of February 3, 1864, assuming it to be the fixed determination of the rate, is to be referred to the preceding triennial assessment in 1862, and thus to constitute a complete assessment in 1864. Fixing a rate is not charging the land with a-tax, though the rate is essential to the charge. The property to be taxed in the unseated list must be ascertained and individuated before it can become the subject of a charge. "While the triennial assessment is the basis of the subsequent annual assessment, and the valuation then fixed will remain, unless changed by reason of alterations in the property, it does not per se constitute the annual assessment of the property with taxes; The charging of lands with taxes is an annual process, for the reason that neither the property itself, nor its ownership, necessarily continues for triennial periods. The commissioners would have no right ro reject the annual returns, and, falling back upon, the last triennial return, make their charges upon it. The six tracts, the subject of the return in 1862,' in one body, might have been disconnected by sales, or changed by improvements, part might, under different owners,' become seated and not subject to sale, leaving others unseated and liable to be charged as unseated. Of necessity, the charging of the lands as unseated for any year, must be the act of that year, having relation to individual properties as then existing, and*1 cannot be made good by reference t® the state of the property in the preceding triennial period’. It is true in this case, the-property remained without change, but this did not affect the duty of the commissioners to charge it specially with the taxes of 1864. We are, therefore, brought back to the commissioners’ book and the assessment of 1864 contained in it, as the only evidence of the assessment for that year, and as there was nothing in it to exhibit the time of the assessment, there' must be a resort to independent or outside facts' to determine the true time. This brought in, necessarily, all the acts of the commissioners' found in the minutes of their proceedings relating to the unseated lands, which could throw any light on the main question, when did they complete their assessment of unseated lands for the year 1864.

These are the only questions we deem it necessary to notice, as their decision rules the case. The verdict of the jury on the facts is not the subject of our inquiry.

Judgment affirmed.  