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H. J. HEINZ CO. v. CITY PITTSBURGH ET AL. (03/18/52)

March 18, 1952

H. J. HEINZ CO.
v.
CITY OF PITTSBURGH ET AL.



COUNSEL

Frank W. Ittel, Carl E. Glock, Jr., and Reed, Smith, Shaw & McClay, Pittsburgh, for appellant.

Anne X. Alpern, City Sol., J. Frank McKenna, Jr., Asst. City Sol., Pittsburgh, for appellees.

Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.

Author: Hirt

[ 170 Pa. Super. Page 436]

HIRT, Judge.

Equity will enjoin taxation for want of power to tax. Jamison Coal & Coke Co. v. Unity Tp. School Dist., 362 Pa. 389, 66 A.2d 759, especially where as here, the provision for an appeal in a city ordinance fails to provide an adequate remedy for contesting the assessment. Alleging lack of authority to tax, the plaintiff in this equity proceeding sought to restrain the collection

[ 170 Pa. Super. Page 437]

    of an additional mercantile license tax over and above an amount admittedly due, under an assessment by the City of Pittsburgh for the year 1950. The lower court sustained preliminary objections raised by the city in its answer and dismissed the bill. The decree will be reversed.

By ordinance No. 488 the city imposed a mercantile license tax for the year 1948 and annually thereafter, on wholesale and retail vendors or dealers in goods, wares and merchandise. Under the ordinance the amount of the tax is based on 'the annual gross * * * business transacted' by the vendor. There is a limitation on the operation of the ordinance, however, by the provisions in § 1(d), that dealers subject to the tax 'shall not include * * * any person vending or disposing of articles of his own growth, production or manufacture for shipment or delivery from the place of growth, production or manufacture thereof.

Plaintiff's bill is not as explicit as might be desired. We take it as conceded however that the appellant paid so much of the tax for 1950 as was assessed on food products and goods manufactured or processed by others, but sold by it in Pittsburgh; and that in making the levy the city did not assess products manufactured or processed by appellant within the city and sold from its Pittsburgh plant. The lower court in dismissing the bill assumed that the goods in question were sold from stores apart from any of appellant's manufacturing plants. We need not decide whether the court was right in concluding that a valid assessment may be based on such sales of goods. That question is not before us. Appellant's printed argument contains this statement: 'The assessment in question is on the receipts from sales from appellant's own manufacturing establishment in Pittsburgh of goods manufactured in appellant's plants elsewhere.' In disposing of this appeal

[ 170 Pa. Super. Page 438]

    we assume that to be a correct statement of fact under the averments of the bill. The statement was not questioned at the argument before us. The amount of the tax in controversy has been stipulated to be $1,650.69.

Under § 1 of art. XV of the Constitution of this State, P.S., the Legislature may delegate to cities the power to levy, assess and collect taxes, for general revenue purposes, subject however 'to such restrictions, limitations, and regulations, as may be imposed by the Legislature.' But as to the raising of revenue by taxation, as in other phases of the exercise of local self-government, cities have only such powers and authority as have been delegated to them by the Legislature, within ...


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