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ROSE TOWNSHIP v. HOLLOBAUGH. (08/03/55)

August 3, 1955

ROSE TOWNSHIP
v.
HOLLOBAUGH.



Appeal, No. 23, April T., 1955, from judgment of Court of Common Pleas of Jefferson County, April T., 1954, No. 8, in case of Rose Township v. J.E. Hollobaugh. Judgment affirmed.

COUNSEL

William J. McKnight, for appellant.

Donald J. Dennison, with him Raymond E. Brown, and Thomas D. Stauffer, for appellee.

Before Rhodes, P.j., Ross, Gunther, Wright, and Woodside, JJ. (hirt and Ervin, JJ., absent).

Author: Woodside

[ 179 Pa. Super. Page 286]

OPINION BY WOODSIDE, J.

This appeal questions the legality of a tax resolution passed by a township of the second class subsequent to the adoption of a budget in which the receipts from the tax were not contemplated.

On March 3, 1952 the Supervisors of the Township of Rose in Jefferson County adopted a budget for the fiscal year beginning on the first Monday of January 1952 and ending on the first Monday of January 1953 as required by section 902 of The Second Class Township Code of May 1, 1933, P.L. 103 as amended and reenacted by the Act of July 10, 1947, P.L. 1481 and further amended in 1949, 53 PS § 19093-902.

By resolution adopted the same day the supervisors levied a tax of nine mills upon the real estate of the township.

On May 26, 1952 the supervisors, after the legally required prior notice by publication of their intention

[ 179 Pa. Super. Page 287]

    so to do, adopted a resolution purporting to levy a tax upon admissions to drive-in theaters to be collected from July 1, 1952 until January 5, 1953.The resolution set forth that the tax was imposed "for general revenue purposes in pursuance of the provisions of the Act of June 25, 1947, P.L. 1145 as amended" by the Act of September 29, 1951, P.L. 1640, and that the tax was "for fiscal township year beginning the first Monday of January 1952 and ending the first Monday of January 1953."

The resolution further provided as follows: "The reason which, in the judgment of the said Township supervisors, necessitates the imposition of the said tax is the repair of the township roads.

"The amount of revenue estimated to be derived from such tax is $2,000.00".

The defendant, who opened a drive-in theater in the township, refused to pay the tax levied under the aforesaid resolution for the year 1952, and the township sued him in assumpsit.

After a second amended complaint, an answer thereto with new matter and a plaintiff's reply were filed, a motion was made by the plaintiff for judgment on the pleadings.

President Judge MORRIS for the court below dismissed the motion and entered judgment for the defendant. This appeal followed.

Two questions are presented to us, both of which the lower court decided against the township.

These questions are stated by the appellant, in substantially the same language as they were stated by the court below, as follows:

"1. Where the Supervisors of a township of the second class adopt a budget, in the manner and within the time prescribed by law, may they, approximately two months later, under the Act of June 25, 1947, P.L.

[ 179 Pa. Super. Page 2881145]

, as amended by the Act of September 29, 1951, P.L. 1640 (53 PS § 2015.1 et seq.), levy a tax upon admissions to drive-in theaters, the estimated revenue from which was not included in such budget as an item of anticipated revenues and was not appropriated therein for highway or other purposes?

"2. Where the Supervisors of a township of the second class, simultaneously with the adoption of their annual budget, and at the time and in the manner provided by law, levy an annual tax of nine (9) mills on each dollar of assessed valuation of taxable property in the said township, for 'road, bridge and general township purposes', which is the maximum millage permitted by law without the approval of the Court of Quarter Sessions, as provided by Section 905 A-1 of the Act of May 1, 1933, P.L. 103, as last amended by the Act of May 24, 1951, P.L. 370 (53 PS 19093-905), which they did not obtain, may they later, in the same year, levy a tax on the admissions to drive-in theaters under the Act of June 25, 1947, P.L. 1145, as amended by the Act of September 29, 1951, P.L. 1640 (53 PS § 2015.1 et seq.)?"

A negative answer to either or both of the foregoing questions of law will necessarily invalidate the tax purported to have been levied by the resolution of May 26, 1952.

The precise questions here presented have never been decided by the appellate courts. The answers will be a matter of importance in the operation of the governments of our political sub-divisions.

A brief review of the legislative history of the relevant statutes may be helpful. As the original sources of income, almost entirely from real estate, proved insufficient to meet the increasing costs of local governments, pressure was brought upon the ...


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