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WILKINSBURG BOROUGH v. WILKINSBURG BOROUGH SCHOOL DISTRICT ET AL. (06/26/50)

June 26, 1950

WILKINSBURG BOROUGH
v.
WILKINSBURG BOROUGH SCHOOL DISTRICT ET AL., APPELLANTS



Appeal, No. 46, March T., 1950, from order of Court of Common Pleas of Allegheny County, Jan. T., 1949, No. 2197, in case of The Borough of Wilkinsburg v. School District of Borough of Wilkinsburg et al. Order reversed.

COUNSEL

James E. Hindman, for appellants.

Herbert Patterson, for appellee.

Before Drew, C.j., Stern, Stearne, Jones and Bell, JJ.

Author: Stern

[ 365 Pa. Page 255]

OPINION BY MR. JUSTICE HORACE STERN

A borough is here seeking to compel a school district to collect a tax imposed by the borough on admissions to entertainments, including athletic events, conducted by the school district. We are not in agreement with the court below that the borough has any such statutory or other authority.

The Act of June 25, 1947, P.L. 1145, authorized boroughs and certain other political subdivisions to levy and collect, or provide for the levying and collection of, taxes on persons, transactions, occupations, privileges, subjects and personal property within their limits, provided that the object taxed was not then, nor thereafter became, subject to a state tax. Pursuant to that Act the Borough of Wilkinsburg passed an ordinance imposing

[ 365 Pa. Page 256]

    a tax upon the admission fee or privilege to attend any amusement at the rate of one cent on each ten cents or fraction thereof charged to the public by any producer, the tax to be paid by the person acquiring such privilege. The word "amusement" was defined by the ordinance to cover all forms of entertainment; the word "producer" was defined as meaning any person, co-partnership, association or corporation conducting a place of amusement. The ordinance required that a permit be obtained by the producer, that the producer should collect the tax and be liable to the borough as an agent thereof for its payment to the borough, and that the producer should make a report of the tax collected and pay the sum due into the borough treasury. There was a provision that any person, co-partnership, association or corporation failing, neglecting or refusing to comply with any of the terms or provisions of the ordinance should, upon conviction thereof, be sentenced to pay a fine of $100, and, in default of payment of said fine, be imprisoned for a period not exceeding 30 days.

The School District of the Borough of Wilkinsburg conducted a number of football games where admission fees were charged, but it refused to obtain a permit therefor or to collect the tax or to file a report to the borough of the amount collected. The borough brought an action in mandamus against the school district and the school directors to compel their compliance with the ordinance. Defendants filed an answer denying the authority of the borough to force them to perform the duties demanded. The court granted a motion of the borough for judgment on the pleadings and directed defendants to obtain the required permit, collect the tax, and report to the borough the amount of tax collected and due.

There is no question as to the legality, under the authority granted by the Act of ...


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