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ISALY DAIRY COMPANY v. PITTSBURGH (11/08/54)

November 8, 1954

ISALY DAIRY COMPANY
v.
PITTSBURGH, APPELLANT.



Appeal, No. 155, March T., 1954, from order of County Court of Allegheny County, 1953, No. A-382, in case of The Isaly Dairy Company of Pittsburgh v. City of Pittsburgh and David A. Smith, Treasurer. Order affirmed. Appeal by taxpayer from deficiency claim for mercantile license taxes. Before LENCHER, P.J. Order entered sustaining appeal. Defendants appealed.

COUNSEL

Robert Engel, Assistant City Solicitor, with him J. Frank McKenna, Jr., City Solicitor, for appellants.

Jerome C. Bachrach, for appellee.

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

Author: Stern

[ 379 Pa. Page 109]

OPINION BY MR. CHIEF JUSTICE HORACE STERN

The question is whether the Act of June 25, 1947, P.L. 1145, as amended by the Act of May 9, 1949, P.L. 898, authorizes the City of Pittsburgh to impose a mercantile license tax on receipts from the sale of ice cream and cottage cheese manufactured in the City but sold by the manufacturing company in its own

[ 379 Pa. Page 110]

    retail stores situated in the City but in locations apart from the place of manufacture.

An ordinance of the City of Pittsburgh of December 1, 1947, as amended, imposed a mercantile license tax of 2 mills on sales by retail dealers. In defining "retail dealer" or "retail vendor" it provided that those terms should 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." It will be noted that it thus failed to exempt sales of manufactured articles made other than at the place of manufacture.

The Isaly Dairy Company, which manufactures ice cream and cottage cheese, conducts some 25 retail stores at various locations in the City of Pittsburgh at which it sells its products either for consumption on the premises or to be taken out in packages. it resists the imposition by the City of a mercantile license tax on its own products thus sold at retail, admitting, of course, its liability for payment of the tax on other goods sold by it in such retail stores. The City having made a deficiency claim for the year 1953 to cover the tax on the Company's manufactured products sold in these stores, the Company appealed from such additional assessment to the County Court of Allegheny County, which sustained the Company's position in regard to the City's deficiency claim for the year 1953 and also ordered the City to refund to the Company the overpayments of similar taxes for the years 1950, 1951 and 1952. From that order the City now appeals.

The Act of June 25, 1947, P.L. 1145, empowered certain political subdivisions, including cities of the second class, to tax persons, transactions, occupations, privileges and personal property within the limits of ...


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