payment of taxes, strictly speaking, it is declared to be an additional sum to be added by the collector to the taxes charged in the duplicate, and collected by him. It becomes a part of the tax, with the same effect as if it had been originally charged in the duplicate, and carries the same incidents.'
In Appeal of the City of Titusville, 108 Pa. 600, in construing a similar statute and holding that the additional exaction was entitled to the same prior lien on funds of the taxpayer as the original tax, the court said: 'The increase of the tax thus authorized by the terms of the supplement, is in the nature of interest or damages rather than a penalty, in the strict sense of that word; but, whether it be regarded as damages, for deferred payment, or a penalty, it is very clear that each additional sum of five per cent becomes a part of the tax which the delinquent taxpayer is required to pay. * * * '
However, in Hamilton v. Lawrence, supra (110 Pa.Super. 344, 167 A. 511), a one per cent a month levy on unpaid taxes beginning the first of January of the year following the levy was characterized as a penalty, which could be saved only by an explicit reservation in a repealer act. As to this exaction, the court said: 'It is a true penalty, imposed eo nomine, beginning the 1st of January of the year following the levy. * * * The penalty imposed by the act of 1929, eo nomine, would therefore fall with its repeal * * * unless saved by a clear, unambiguous provision of the repealing act. * * * '
Since the 5% exaction in dispute here is referred to in the Act imposing it and in the 1945 Act as a 'penalty', Reconstruction Finance Corporation claims that under the reasoning of the Hamilton case, it must be construed as such. However, the court feels that the Pennsylvania cases indicate that not the name, but the type, of tax is the proper criterion to be imposed in judging an exaction as a 'tax' or a 'penalty.' Thus, in the Hamilton case itself, the court, in discussing Harrisburg v. Guiles, 192 Pa. 191, 44 A. 48, one of the cases relied upon by it in its decision, said: 'It is true that Judge McPherson used the colloquial term 'penalty,' but the important part of his decision was that the additional 5 per cent. becomes part of the tax.' Cf. also Pennsylvania Co. v. Zussman, 122 Pa.Super. 325, 186 A. 378.
Moreover, in the Hamilton case, the court clearly distinguished between two types of additional exactions. One of them, a 5% exaction coming six months after notice, was characterized as a 'part of the tax' and carrying 'the same incidents.' The other, a repetitive automatic one per cent a month exaction on unpaid taxes beginning the first of January of the year following the levy, was characterized as a penalty. The Act of 1911, imposing the tax in dispute here, contains these two types of additional exactions, see supra. The court feels that the 5% exaction in this case, which is of the former sort and comes, not six, but only two or three months after notice, is, under Pennsylvania law, a 'part of the tax,' saved by a general clause saving 'taxes' heretofore levied but uncollected. This conclusion is reinforced by Pennsylvania Co. v. Zussman, supra, where it was held that an act providing for the abatement of interest and penalties imposed on delinquent taxes did not apply to additions, even though also called penalties, which were imposed by law on current taxes before they became delinquent; i.e., under the applicable statutes, before January 15th following the year of the levy.
The very recent case of Borough of Homestead v. Defense Plant Corporation and Reconstruction Finance Corporation, supra (356 Pa. 500, 52 A.2d 587.), indicates that even a moderate, automatic, repetitive exaction might not be within the repealer doctrine, although the case is not explicit on the point. It was there held that the Defense Plant Corporation was subject to a lien for a local real estate tax and that the tax lien included interest of one half of one percent a month for delinquency in payment, as provided for by statute. 53 P.S. § 13398. Although the additional exaction in the Hamilton case, supra, which was held to bear interest and become part of a tax lien was the straight 5% variety, the court relied upon that case in ruling that: 'The interest for delay in payment of the tax and the attorney's commission for collection are statutorily prescribed incidents in all cases of overdue taxes. When duly impossible, such charges, along with the tax originally assessed, constitute the tax then due. * * * '
The question of repealer was not discussed although, by the force of the same 1945 statute involved in the instant case, the statute imposing the additional exaction expired while the case was in the courts, with section 10 of the 1945 Act, imposing a flat 5% exaction for delay, taking its place. From this and earlier cases, this court concludes that the additional exaction imposed upon defendant in the instant case is not a 'penalty' but a 'tax' which needs no explicit reservation in a repealer act.
Plaintiff School District maintains that if the 1945 Act is construed to repeal taxes already levied and assessed, it would be unconstitutional under Article 3, Section 3 of the Pennsylvania Constitution, P.S., which provides that 'no bill, except general appropriation bills, shall be passed containing more than one subject, which shall be clearly expressed in its title.' The disposition of the main issue makes it unnecessary to deal with this argument. Plaintiff's motion for judgment on the pleadings granted.
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