Appeal, No. 35, Jan. T., 1954, from decree of Court of Common Pleas of Carbon County, Oct. T., 1951, in Equity, No. 1, in case of Panther Valley Television Co., Inc. v. The Borough of Summit Hill. Decree affirmed; reargument refused March 2, 1954.
Frank D. Llewellyn, for appellant.
William Z. Scott, for appellee.
Before Stern, C.j., Stearne, Jones, Bell, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE ARNOLD
Defendant-borough appeals from a decree declaring certain tax levies invalid and enjoining enforcement thereof.
By authority of the Act of 1947, P.L. 1145, 53 PS § 2015.1 et seq., the defendant ordained that: "Every corporation... or person engaged in the business of capturing television signals within the borough by tower or other structure, and transmitting the same for sale, shall pay a fee of $100.00 for each tower or structure erected and, where transmission of signals is for sale to persons residing outside the limits of the borough, shall pay... annually... a franchise tax equal to five (5) per centum of its gross receipts from business done everywhere,... [and if] for sale to persons residing within the Borough... the rate of tax... shall be four (4) per centum." The ordinance further provided that if the taxpayer should refuse or neglect to pay the tax, or to file a report, a penalty of 50 per cent. Would be added.
Plaintiff is a corporation engaged in the business of receiving television signals which it distributes by cable to others who reside solely outside the borough. Its tower is erected within the borough on land leased from another. The cable crosses and extends along streets of the borough for a distance of 900 feet and is attached to poles of the electric and telephone companies, both of which are public utilities.
Prior to the enactment of the ordinance plaintiff and defendant-borough entered into an agreement whereby plaintiff was granted permission to erect its tower and to string its wires across streets for the transmission of television signals, and promised to pay therefor a fee of $100 and "to pay an annual tax equal to 20% of the revenue derived from its business," all of which was "conditioned upon the legality of said payments."
The Act of 1947, P.L. 1145, as amended by the Act of 1949, P.L. 898, 53 PS § 2015.1 et seq., provides, inter alia, that the political subdivisions "may... for general revenue purposes, levy... taxes on persons, transactions, occupations, privileges, subjects and personal property... except [those which now are or hereafter]... become subject to a State tax or license fee..."
The court below declared that the tower tax of $100 was invalid because a tax on property already subject to tax through the corporate net income tax and the capital stock tax of the Commonwealth, and therefore within the prohibition of the enabling Act; and the tax on gross receipts was invalid because the ordinance was vague and indefinite as to what it intended to ...