The opinion of the court was delivered by: FOLLMER
This suit is in the nature of a mandamus proceeding brought by the United States of America against Forest L. Knapp, Recorder of Deeds of Crawford County, Pennsylvania, in the United States District Court for the Western District of Pennsylvania, to compel the recording of a deed from John E. Sloan, United States Marshal, to the United States of America.
Pursuant to an order of the District Court, the United States Marshal for the Western District of Pennsylvania, after due advertisement, sold the mortgaged property to the United States of America. The sale was confirmed and upon becoming absolute the court ordered the Marshal to execute and deliver a deed for the said property to the United States of America, which was done. The deed was then forwarded to the defendant with a demand that the same be recorded. The defendant refused to so record prior to the payment of the Pennsylvania Realty Transfer Tax. The original complaint was then filed, when defendant moved to dismiss for the following reasons:
1. Defendant is the statutory agent of the Secretary of Revenue for the Commonwealth of Pennsylvania for the collection of the State Realty Transfer Tax, accordingly the Secretary is a necessary and indispensable party.
2. The complaint is insufficient to show compliance by the plaintiff with the provisions of the Realty Transfer Tax Act of December 27, 1951, P.L. 1742, § 1, as re-enacted and amended by the Act of May 29, 1953, P.L. 257, § 1, 72 Pa.P.S. 3283, and the rules and regulations thereunder.
3. The complaint fails to state a claim upon which relief can be granted.
On motion, Gerald A. Gleason, Secretary of Revenue, was added as an additional party defendant, and plaintiff was permitted to file an affidavit as required under Section 8 of the said Realty Transfer Tax Act, 72 P.S. § 3290.
On motion of the Secretary of Revenue, the case was then transferred to this Court.
Subsequently, to wit: on November 4, 1957, plaintiff, with leave of Court, filed an amended complaint to which was attached copy of affidavit of Edwin M. Kosik, Assistant United States Attorney, filed with the Recorder of Deeds of Crawford County, Pennsylvania, in connection with the recordation of the deed aforesaid. The amended complaint, in addition to the allegations contained in the original complaint, included the Secretary of Revenue as a party defendant; an allegation that the affidavit required by the Pennsylvania Realty Transfer Tax Act and the regulations promulgated thereunder had been tendered together with the said deed for recordation; and a further allegation that on or about February 12, 1957 the defendants refused to accept and record the said deed.
Counsel for defendants at this point advised the Court that the position taken by defendants was in no way affected by the filing of the affidavit, which in their opinion was the substance of the amended complaint.
The sole question presently before the Court is whether or not the imposition of the Pennsylvania Realty Transfer Tax is a tax upon a governmental function of the United States of America and if so, a violation of the Constitution of the United States of America.
The Realty Transfer Tax Act, at all times herein involved, provided in pertinent parts as follows:
'Section 3. Every person who makes, executes, issues, delivers or accepts any document, or in whose behalf any document is made, executed, issued, delivered or accepted, shall be subject to pay for and in respect thereof, or for or in respect of the vellum parchment or paper upon which such document is written or printed, a State tax at the rate of one (1) percentum of the value of the property represented by such document, which State tax shall be payable at the time of making, execution, issuance, delivery or acceptance of such document.
'Section 6. The department is hereby charged with the enforcement of the provisions of this act and is hereby authorized and empowered to prescribe, adopt, promulgate and enforce rules and regulations relating to:
'(a) The method and means to be used in affixing or cancelling of stamps in substitution for or in addition to the method ...