Appeal, No. 16, March T., 1955, from judgment of Superior Court, April T., 1954, No. 13, affirming judgment of County Court of Allegheny County, 1952, No. A1711, in case of C. E. Hughes and David M. Ogilvie, trading as Hughes-Ogilvie Company v. School District of Pittsburgh, City of Pittsburgh and David A. Smith. Judgment reversed. Same case in Superior Court: 176 Pa. Super.Ct. 148. Appeal by taxpayers from mercantile tax deficiency claims. Before LENCHER, P.J., without a jury. Order entered finding for plaintiffs and judgment entered for plaintiffs. Defendants appealed to the Superior Court, which affirmed the judgment of the court below. Appeal by defendants to Supreme Court allowed.
Robert Engel, Assistant City Solicitor, with him J. Frank McKenna, City Solicitor, for appellants.
Wallace E. Edgecombe, for appellees.
Before Stern, C.j., Stearne, Jones, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE ALLEN M. STEARNE
The City of Pittsburgh and David A. Smith, City Treasurer, appeal from the judgment of the Superior Court which affirmed the judgment of the County Court of Allegheny County sustaining an appeal and declaring void assessments of the mercantile tax against Hughes-Ogilvie Company, a partnership, as a retailer. The single question is whether or not the sales of merchandise here involved were wholesale sales.
According to the stipulation of counsel, and as stated by the Superior Court in its opinion, "... the disputed categories are the sales made by the Company in large quantities to local municipal authorities, the General State Authority, public schools, private
schools, hospitals, charitable institutions and churches. ..."
The Mercantile Tax Ordinance imposing the tax here in question is No. 488, approved December 1, 1947, authorized by the Act of June 25, 1947, P.L. 1145, 53 PS § 2015.1. Section 4 of the ordinance imposes the tax in the following language:
"Every person engaging in any of the following occupations or businesses in the City shall pay an annual mercantile license tax for the year 1948 and annually thereafter at the rate set forth: ...
"(c) Wholesale and retail vendors or dealers in goods, wares and merchandise at the rate of one (1) mill on each dollar of the volume of the annual gross wholesale business transacted by him, and two (2) mills on each dollar of the ...