John McCrea and W. H. McCrea, Jr., Newville, for appellant.
Merrill F. Hummel and E. M. Biddle, Jr., Carlisle, for appellee.
Before Rhodes, P. J., and Reno, Ross and Wright, JJ.
[ 173 Pa. Super. Page 255]
This was an action of assumpsit by the Borough of Newville to recover a penalty of $200 from defendant for failure to pay a tax under an ordinance imposing a tax of $25 per year 'on every gasoline, kerosene, oil pump or tank on or under any public Highway of the Borough of Newville, including sidewalks and curbs or adjacent thereto.' Defendant operated during the year 1948 two gasoline pumps on land owned by him and his wife, and he refused to pay any tax under the ordinance. The ordinance was allegedly enacted by the Borough on June 4, 1948, to be effective July 7, 1948, under the authority of the Act of June 25, 1947, P.L. 1145, 53 P.S. § 2015.1 et seq.
The Borough initially brought suit before a justice of the peace to recover the penalty of $200 provided in the ordinance for failure to pay the tax. The Court of Common Pleas of Cumberland County upon petition by the defendant allowed an appeal from the judgment entered by the justice of the peace. Pleadings in the form of complaint and answer were filed in the court below. The parties agreed that the case be heard by the court without a jury under the provisions of the Act of April 22, 1874, P.L. 109, 12 P.S. § 688 et seq.
The principal question of law raised by the parties on the agreed facts before the court below was whether the taxing ordinance had been properly advertised as
[ 173 Pa. Super. Page 256]
provided by section 2 of the Act of June 25, 1947, P.L. 1145,*fn1 and was therefore valid. As the court below stated in its adjudication: 'Counsel for the defendant contends that judgment in this action should be entered in his favor on the ground that the ordinance is invalid because the provisions of the statute relative to advertisement had not been met when the ordinance was passed.' Before the lower court the parties stipulated certain facts relating to passage of the ordinance, particularly the dates on which the ordinance was advertised. Thus it was agreed that the Borough Council gave notice of intention to pass the ordinance by advertisement in a local newspaper in the issues of May 12, 19, 26, and June 2, 1948. Council met on June 4, 1948, and purported to pass the ordinance to be effective on July 7, 1948. The court below ruled that, under the Act of 1947 and the Statutory Construction Act of May 28, 1937, P.L. 1019, § 39, 46 P.S. § 539, at least four successive weeks must elapse between the first publication of notice and the day on which council acted on the ordinance. Accordingly, since the agreed facts showed that a total of four successive weeks had not so elapsed, the court below held that the entire ordinance was invalid for lack of conformity with statutory requirements as to advertising; that on this ground no tax was due under an invalid ordinance. Fierst v. William Penn Memorial Corp., 311 Pa. 263, 266, 166 A. 761; Kline v. City of Harrisburg, 362 Pa. 438,
[ 173 Pa. Super. Page 25768]
A.2d 182. The Borough's exceptions to the trial court's conclusions of law were dismissed, and judgment entered by the court in favor of the defendant taxpayer.
On appeal to this Court, the Borough does not question or allege error in the trial court's ruling that the taxing ordinance was invalid for failure to advertise as directed by statute. Appellant raises only one question, which may be stated as follows: Where the borough sues a defendant to recover a penalty provided for in a tax ordinance, may the defendant set up the invalidity of such ordinance in the suit, or is defendant limited to the statutory right of appeal ...