Appeal, No. 247, April T., 1961, from order of Court of Common Pleas of Beaver County, June T., 1961, No. 2, in equity, in case of John Guernsey et al. v. Borough of Midland. Order reversed.
R. Clifton Hood, with him Evans & Hood, for appellants.
Robert J. Masters, with him Suffoletta & Masters, for borough, appellee.
Before Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (rhodes, P.j., absent).
[ 197 Pa. Super. Page 395]
The Borough of Midland in Beaver, county enacted a tax ordinance pursuant to the "Tax Anything" Act of June 25, 1947, P.L. 1145, as amended, 53 P.S. § 6851 et seq.
The ordinance provides in section 3 that "each individual engaged in an occupations, as hereinbefore defined, within the corporate limits of the Borough of Midland shall be required to pay an annual occupational tax of Ten ($10.00) Dollars." Occupation is defined in the ordinance to mean "any trade, profession, business or undertaking of any type or kind carried on or performed within the corporate limits of the Borough ..." The ordinance defines "Occupational Tax" as "a tax of Ten ($10.00) Dollars per year levied on each individual engaged in any occupation as hereinbefore defined, within the corporate limits of the Borough of Midland, during the year 1961 ..."
It appears that of the approximately 7000 persons employed within the corporate limits of the Borough of Midland approximately 80% reside outside of the borough. The plaintiffs in this case, being among those who work in the borough but reside outside of it, brought an action in equity to enjoin the borough from collecting the above tax. The court below concluded that the tax was legally imposed and dismissed the appeal. The plaintiffs appealed.
The answer to this case is found in the recent case of Danyluk v. Bethlehem Steel Company and The City of Johnstown, 406 Pa. 427, 178 A.2d 609 (1962).
[ 197 Pa. Super. Page 396]
The Johnstown ordinance held illegal in that case differs from the Midland ordinance in that it attempted to impose an occupational tax upon only the non-residents who were employed in the city, while the Midland ordinance attempted to impose a tax upon all who were employed in the Borough of Midland regardless of residence. The Johnstown ordinance violates the uniformity clause (Art. IX, § 1) of the Pennsylvania Constitution in a manner which the Midland ordinance does not.
Nevertheless, under the language of Mr. Justice COHEN in the above case, the Midland ordinance cannot be enforced against non-residents of the borough. The Supreme Court held that the Johnstown ordinance which provided for the imposition of a "Ten ($10.00) Dollar per year Occupational Tax upon non-resident individuals who engage in any occupation whatsoever within the corporate limits of the City of ...