J. Frank McKenna, Jr., City Sol., Robert E. Engel, Asst. City Sol., Pittsburgh, Mortimer B. Lesher, Sol. for School Dist. of Pittsburgh, Oscar G. Peterson, Niles Anderson, Asst. Sols, for School Dist. of Pittsburgh, Pittsburgh, for appellants.
John B. Nicklas, Jr., McCrady & Nicklas, Pittsburgh, for appellee.
Before Hirt, Acting P. J., and Ross, Gunther, Wright, Woodside and Ervin, JJ.
[ 176 Pa. Super. Page 155]
Plaintiff brought a suit in equity to restrain the City of Pittsburgh and James P. Kirk, Treasurer, from claiming and collecting mercantile taxes on gross commissions received by him in his Pittsburgh office, and also appealed from the deficiency claim of the School District of the City of Pittsburgh and James P. Kirk,
[ 176 Pa. Super. Page 156]
Treasurer, for mercantile taxes computed on the same basis. Both actions were consolidated for trial in the lower court which enjoined the City from attempting to collect the assessment and sustained the appeal from the deficiency claim of the School District. The City and School District filed exceptions, which, after argument, were dismissed by the court in banc. These appeals followed.
The fundamental question raised by these appeals is whether the appellee is a 'merchandise broker' within the purview of the Mercantile Tax Ordinance of the City of Pittsburgh and the tax imposed by the School District of the City of Pittsburgh.
Pursuant to the power given in the Act of June 25, 1947, P.L. 1145, 53 P.S. § 2015.1, the City of Pittsburgh enacted its Mercantile Tax Ordinance No. 488, approved December 1, 1947. In accordance with the Act of June 20, 1947, No. 320, P.L. 745, 24 P.S. § 582.1, the School District imposed a similar tax. The provisions of Ordinance No. 488 and Act No. 320 are identical except as to rate. The City ordinance provides for a tax of one mill on gross receipts of wholesale dealers in and vendors of goods, wares and merchandise in the City, and a tax of one mill on gross commissions (as distinguished from gross sales) of certain type of brokers, including merchandise brokers. The rate of the School District Tax is one-half of one mill on gross receipts of wholesale dealers and vendors and one-half of one mill on gross commission of brokers.
'Broker' is defined in the City's Mercantile Tax Ordinance No. 488 of 1947, as amended by Ordinance No. 184 of 1948, as follows: 'Broker' shall mean any merchandise broker, factor or commission merchant, but shall not include any stock broker, bill broker, note broker, exchange broker, real estate broker or
[ 176 Pa. Super. Page 157]
agent, or pawnbroker.' Act No. 320 of June 20, 1947, P.L. 745, 24 P.S. § 582.1(6), defines the term as follows: 'Broker' shall mean any stock broker, bill broker, note broker, exchange broker, merchandise broker, factor, ...