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February 23, 1938


The opinion of the court was delivered by: MCVICAR

The question for determination is whether the salary of plaintiff from 1925 to 1935, inclusive, as general manager of cafeterias in the public schools of the School District of the City of Pittsburgh, is taxable income under the Federal income tax laws.

 The cafeteria service is of physical, moral, and educational benefit or advantage to the student body. It is an advantage physically, in that the students have a well-balanced diet, a sufficient time to eat lunch, and affords protection against the procuring of lunches in the neighborhood of the high schools where the food might not be of a proper character. The service is a moral advantage, in that it keeps the students within the school grounds and away from places where intoxicating liquors are sold, and also from other objectionable places. It is an educational value in that the students have the opportunity of observing a well-balanced diet for lunches; it assists not only as to the food supply but as to the time for eating lunches and otherwise, in keeping the students in mental condition for their work. A modern public high school in a city cannot be administered efficiently without a cafeteria.

 The Commissioner of Internal Revenue assessed the income of the plaintiff as general manager of the cafeterias in the Pittsburgh schools for the years 1925 to 1935, inclusive, which, with interest, amounts to $648.52. This amount she paid under protest and made a claim for refund which was refused. She then brought the action in this case. It is the contention of the plaintiff that this income is exempt from taxation under the federal income tax laws. Defendant contends that it is taxable. In Brush v. Commissioner, 300 U.S. 352, 57 S. Ct. 495, 81 L. Ed. 691, 108 A.L.R. 1428, the question for the court's determination was whether the salary of the chief engineer of the Bureau of Water Supply of the City of New York was taxable income under the federal income tax laws. In the opinion of the court, written by Justice Sutherland, it is stated (300 U.S. page 360, 57 S. Ct. 495): "The answer depends upon whether the water system of the city was created and is conducted in the exercise of the city's governmental functions. If so, its operations are immune from federal taxation and, as a necessary corollary, 'fixed salaries and compensation paid to its officers and employees in their capacity as such are likewise immune.' New York ex rel. Rogers v. Graves, 299 U.S. 401, 408, 57 S. Ct. 269, 81 L. Ed. 306."

 The conclusion of the court was (300 U.S. page 370, 57 S. Ct. 495, 500): "That the acquisition and distribution of a supply of water for the needs of the modern city involve the exercise of essential governmental functions."

 In the opinion it is stated (300 U.S. page 364, 57 S. Ct. 495, 497): "A federal tax in respect of the activities of a state or a state agency is an imposition by one government upon the activities of another, and must accord with the implied federal requirement that state and local governmental functions be not burdened thereby."

 The court further stated (300 U.S. page 362, 57 S. Ct. 495, 496): "In the present case, upon the one side stress is put upon the adjective 'essential', as used in the Flint v. Stone Tracy Case [220 U.S. 107, 31 S. Ct. 342, 55 L. Ed. 389, Ann.Cas.1912B, 1312], while, on the other side, it is contended that this qualifying adjective must be put aside in favor of what is thought to be the greater reach of the word 'usual', as employed in the Powers Case, [ Helvering v. Powers, 293 U.S. 214, 55 S. Ct. 171, 79 L. Ed. 291]. But these differences in phraseology, and the others just referred to, must not be too literally contradistinguished. In neither of the cases cited was the adjective used as an exclusive or rigid delimitation. For present purposes, however, we shall inquire whether the activity here in question constitutes an essential governmental function within the proper meaning of that term; and in that view decide the case."

 The court further stated (300 U.S. pages 372, 373, 57 S. Ct. 495, 501): "And to say that, because the city makes a charge for furnishing water to private consumers, it follows that the operation of the water works is corporate and not governmental, is to beg the question. What the city is engaged in doing in that respect is rather rendering a service than selling a commodity. If that service be governmental, it does not become private because a charge is made for it, or a profit realized. * * * The state or the city may exact a tuition charge for instruction in the public schools."

 The court further stated (300 U.S. page 371, 57 S. Ct. 495, 500):

 "It may be, as it is suggested, that private corporations would be able and willing to undertake to provide a supply of water for all purposes; but if the state and city of New York be of opinion, as they evidently are, that the service should not be intrusted to private hands, but should be rendered by the city itself as an appropriate means of discharging its duty to protect the health, safety, and lives of its inhabitants, we do not doubt that it may do so in the exercise of its essential governmental functions. * * *

 "Governmental functions are not to be regarded as nonexistent because they are held in abeyance, or because they lie dormant, for a time. If they be by their nature governmental, they are none the less so because the use of them has had a recent beginning."

 The reasoning of the Brush Case is applicable to the present case. The education of the children of a state is an essential governmental function. The furnishing of cafeterias which promotes the physical, moral, and educational welfare of the student body is an essential part thereof. This was the judgment of the Commonwealth of Pennsylvania and the School District of the City of Pittsburgh.

 Hoskins et ux. v. Commissioner, 5 Cir., 84 F.2d 627, 628, is a case in which the facts and the questions involved are substantially the same as in this case. Mrs. Hoskins was superintendent of cafeterias for the Fort Worth Public Schools. The Commissioner assessed the income received by ...

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