Appeal from order of Court of Common Pleas, Civil Division, of Allegheny County, April T., 1969, No. 8, in re appeal of Hospital Council of Western Pennsylvania et al.
Frederick A. Boehm, First Assistant City Solicitor, with him Eugene B. Strassburger, III, Assistant City Solicitor, and Ralph Lynch, Jr., City Solicitor, for appellants.
Seymour J. Schafer, with him Markel, Markel, Levenson & Schafer, for appellees.
Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Roberts. Mr. Justice Jones and Mr. Justice Pomeroy concur the result. Dissenting Opinion by Mr. Justice Cohen.
On December 28, 1968, the City of Pittsburgh enacted "The Institution and Service Privilege Tax Ordinance" which, in essence, sought to levy a six mills tax
on the gross receipts*fn1 of any institution*fn2 engaging in any service*fn3 in the City. Twenty-eight institutions performing health-related services then challenged the ordinance in the Court of Common Pleas of Allegheny County, as set forth in The Local Tax Enabling Act, Act of December 31, 1965, P.L. 1257, § 6, 53 P.S. § 6906 (Supp. 1970). In an effort to expedite the proceedings the parties agreed to select Allegheny General Hospital, Shadyside Hospital and the Hospital Council of Western Pennsylvania to proceed to hearing. The court, after hearing testimony and argument, held that the ordinance was invalid and unenforceable as against the three petitioners and all other institutions of purely public charity. The City has appealed and we affirm.*fn4
Article IX, § 1, of the Constitution of 1874, now Article VIII, § 2, provides: "The General Assembly may by law exempt from taxation: . . . (v) Institutions of purely public charity . . ." The Act of May 22, 1933, P.L. 853, art. II, § 204, as amended, 72 P.S. § 5020-204, provides: "The following property shall be exempt from all . . . city . . . tax, to wit: . . . (c) All hospitals . . .
and institutions of . . . charity. . . ." The hearing court found that the petitioning hospitals were institutions of purely public charity, a conclusion the City no longer disputes, and hence were exempt from the tax by virtue of the above provisions. We agree.
In Allegheny County v. Moon Township, 436 Pa. 54, 258 A.2d 630 (1969), we recently construed the above provisions with respect to "public property used for public purposes." See Act of 1933, supra, 72 P.S. § 5020-204(g). We there held that when property is found to be "public property used for public purposes" the Act of 1933 exempts it from all taxes, regardless of their labels: "Neither the constitution, nor the statute, say the exemption will be only for property taxes; the statute, in fact, expressly says 'all tax'. The word 'property' is used merely to describe the locus of what the Legislature was exempting, not the type of tax it was exempting it from. There is no reason to assume that the Legislature did not fully exercise its constitutional power to exempt this property, not only from property taxes, but also from taxes on activities conducted on the property." Moon Township, 436 Pa. at 56, 258 A.2d at 632.
Thus it is clear that under the Act of 1933 the charitable hospitals in the instant case, like the "public property used for public purposes" in Moon Township, are exempt from the tax sought to be imposed. Nevertheless, the City argues that the Legislature has given it the power to tax institutions of purely public charity by virtue of The Local Tax Enabling Act, supra, 53 P.S. §§ 6902, 6903 (Supp. 1970), which provides: "[C]ities of the second class . . . may, in their discretion, . . . levy, assess and collect . . . such taxes as they shall determine on ...