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GOLDSTEIN v. PITTSBURGH SCHOOL DISTRICT (12/09/52)

December 9, 1952

GOLDSTEIN, APPELLANT,
v.
PITTSBURGH SCHOOL DISTRICT



Appeals, Nos. 187 and 188, March T., 1952, from orders of Superior Court, April T., 1951, Nos. 153 and 154, affirming the orders of the Court of Common Pleas of Allegheny County, Jan. T., 1951, Nos. 1520 and 1521, in cases of H. W. Goldstein, trading as Anchor Distributing Company v. School District of Pittsburgh and James P. Kirk, Treasurer, and Same v. City of Pittsburgh and James P. Kirk, Treasurer. Orders affirmed; reargument refused January 6, 1953.

COUNSEL

Leonard M. S. Morris, with him Philip Baskin and Sachs & Caplan, for appellant.

Oscar G. Peterson, Assistant Solicitor, with him Mortimer B. Lesher, Solicitor, and Niles Anderson, Assistant Solicitor, for School District and Treasurer, appellees.

J. Frank McKenna, First Assistant City Solicitor, with him Anne X. Alpern, City Solicitor, for City and Treasurer, appellees.

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

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

Author: Bell

[ 372 Pa. Page 191]

OPINION BY MR. JUSTICE BELL

The most important question in this case is the constitutionality of an Act and of an Ordinance levying mercantile license taxes. The Act and the Ordinance are so similar and the questions involved are so closely related that they will be considered together.

The School District of Pittsburgh is authorized by the Act of June 20, 1947, P.L. 745, 24 PS 582.1-582.13 to impose a mercantile license tax upon wholesale vendors at the rate of one-half (1/2) mill on each dollar of the annual gross business transacted by the vendor. The classifications of vendors, the formulae for computing the tax, the details of administration, penalties, etc., are specifically set forth in the Act. The School District adopted a Resolution, dated November 28, 1947, making effective as of December 23, 1947, the provisions of the Act and incorporating them by reference. The tax involved is a self-assessing pay in advance type of tax.

The City is authorized by the enabling Act of June 25, 1947, popularly known as the "Tax Anything Act", P.L. 1145, 53 PS 2015.1-2015.8, to levy a similar mercantile license tax at a rate not to exceed one mill upon the gross volume of business transacted by a wholesale vendor. The Act permits certain cities to levy such a tax but City Councils are unrestricted and therefore possess wide discretion as to classifications and computation of volume of business and taxes thereon with certain specific limitations hereinafter discussed. By Ordinance No. 488 approved December 1, 1947, and effective January 1, 1948, the City levied a detailed mercantile license tax.

[ 372 Pa. Page 192]

The Ordinance, pursuant to the enabling Act, makes detailed classifications and provides detailed formulae and computation of volume of business and tax. The School District and the City use a joint return form, use the same treasurer, and compute assessments for deficiencies and penalties on a joint form and on the same basis.

Appellant contends that both the School District Act and the City Ordinance are unconstitutional because the classifications set up and the formulae used to compute the volume of business are arbitrary, unreasonable and discriminatory. The comparable sections of the City Ordinance and of the School District Mercantile License Tax Act are so similar or identical, that it will be necessary to receite only one of them. Section 5 of the School District Act reads:

"Section 5. Computation of Volume of Business. --

(a) Every person, subject to the payment of the tax hereby imposed who has commenced his business at least one (1) full year prior to the beginning of any license year shall compute his annual gross volume of business upon the actual gross amount ...


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