Commonwealth for county, city and school purposes." 72 P.S. § 5020-202 abolishes county tax on trades, occupations, and professions in counties of the second class.
Most important however are the provisions of 72 P.S. § 5020-404 which declare that it shall be the duty of the assessors in counties of the second class "to prepare a list of all residents and inhabitants in such counties over the age of twenty-one years, and return the same to the proper county authorities with other taxable property as provided by law." In like vein is 72 P.S. § 5505 which authorizes the taxing authorities of any political subdivision, except cities of the first and second class and school districts of the first class and first class A, to "provide for an annual preparation of a list of residents or inhabitants of such political subdivisions over twenty-one years of age, by employees to be appointed and paid by such taxing authority, to be used in the assessment and levy of its occupation, per capita or other head tax." A copy of such authorization is to be given to the regular tax assessor, who shall thereafter be relieved of furnishing to such taxing district a list of the residents or inhabitants thereof.
From the foregoing survey of legislation relating to assessment for the purpose of county taxation, it appears, especially from 72 P.S. § 5020-404, that there is statutory authorization for the compilation of a list of all residents in Allegheny County, whether property owners or not, for the purpose of assessment for county taxation. Such a comprehensive "list of taxables" in the hands of the appropriate county officers would constitute a list of "names of all persons assessed for the purpose of taxation" as contemplated in 17 P.S. § 1276 as the source from which the names of jurors are to be obtained by the jury commission.
From this it follows that if in fact the jury commission uses lists containing the names of all residents (and not merely property owners) the use of such lists is authorized by Pennsylvania law, and that the jury commission is not acting ultra vires or in excess of its statutory authority. It also follows that the procedure does not violate any requirements of federal constitutional law.
And from the record in this case we are warranted in finding as a fact, on the basis of the proof submitted, that the jury commission actually does select juries by using lists containing the names of all residents, not merely of property owners.
Defendants' affidavit squarely states that "The Commission selects jurors from an alphabetical list of citizens of Allegheny County. This list is made up from two sources: 1) all owners of real estate as appear on the Tax Books; 2) all other citizens over Twenty-one years of age." Plaintiff's affidavit does not establish the existence of any exclusionary or discriminatory policy or practice, but merely calls attention to practical difficulties; for example it is said that the lists are not perfect and complete, since some residents can not be located, and the staff is not large enough to enable sufficiently diligent efforts to be made to track down those who can not be found. Plaintiff also questions the sufficiency of the excuses put forward by prospective jurors in order to be excused from jury service; and supplies information regarding the incidence of unemployment, home ownership, and other data which do not bear directly upon the question whether a bona fide effort to list all residents is made. From the affidavits of both parties we are warranted in finding that the jury list is, in principle, composed of all residents, whether property owners or not, and that incidental incompleteness, due to practical difficulties, does not amount to an exclusionary or discriminatory policy or practice such as is constitutionally forbidden by the Ballard, Fouche, and other cases. As Justice Holmes would say, "it is no more than the imperfection of man, not a denial of constitutional rights." Chicago Life Ins. Co. v. Cherry, 244 U.S. 25, 30, 37 S. Ct. 492, 493, 61 L. Ed. 966 (1917).
Consequently, in view of the absence of any indication of a classical case of invidious discrimination, as has previously been mentioned, we conclude that the method of jury selection now being employed in Allegheny County is valid and constitutional. There is therefore no ground for interference by the federal judiciary, and plaintiff's action should be dismissed.
We are glad to note that a similar conclusion was reached, in a case involving the composition of grand juries in Allegheny County, by Judge van der Voort in his opinion of September 4, 1970, in Commonwealth v. David Houston and Edmund L. Fuller, Misc. No. 250, Feb. Session, 1970, and Commonwealth v. Jan N. Carlson, et al., Misc. No. 223, Feb. Session, 1970, in the Criminal Division of the Court of Common Pleas of Allegheny County.
Accordingly, the action will be dismissed.