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F. J. BUSSE COMPANY ET AL. v. PITTSBURGH (06/28/71)

decided: June 28, 1971.

F. J. BUSSE COMPANY ET AL., APPELLANTS,
v.
PITTSBURGH



Appeal from decree of Court of Common Pleas, Civil Division, of Allegheny County, July T., 1969, No. 1307, in case of F. J. Busse Company, a corporation et al. v. City of Pittsburgh, a municipal corporation et al.

COUNSEL

John G. Kish, with him T. Robert Brennan and Brennan and Brennan, for appellants.

Frederick A. Boehm, First Assistant City Solicitor, with him Eugene B. Strassburger, III and Marion K. Finkelhor, Assistant City Solicitors, and Ralph Lynch, Jr., City Solicitor, for appellees.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Pomeroy. Mr. Chief Justice Bell concurs in the result. Mr. Justice Cohen took no part in the decision of this case.

Author: Pomeroy

[ 443 Pa. Page 352]

The City of Pittsburgh, as a municipal corporation and a city of the second class, acting under the authority of the Local Tax Enabling Act of December 31, 1965, P. L. 1257, as amended, 53 P.S. § 6901 et seq. (Supp. 1971) (hereinafter "the Act" or "the Enabling Act") enacted Ordinance No. 675 of 1968, known as the Business Privilege Tax Ordinance, imposing a tax upon the privilege of engaging in business in the City of Pittsburgh. This tax is measured by the gross receipts of a business and is assessed at the rate of six mills per dollar of volume of gross annual receipts. The appellants, a group of domestic and foreign corporations engaged in the contracting and construction industry, filed a complaint in equity attacking the validity of the ordinance and seeking to have the City and its officials enjoined from collecting the tax. The chancellor found the tax ordinance to be valid and applicable to the appellants; after exceptions his decree was affirmed and made final by the court en banc. This appeal followed.

The appellants assert that the ordinance should be invalidated for a variety of reasons, to wit: (1) the City had no authority to enact such an ordinance by virtue of the provisions of the Act; (2) the tax imposed by the ordinance duplicates already existing state taxes on the same property or subject matter; (3) the tax imposed by the ordinance violates the uniformity clause of the Pennsylvania Constitution (Art. VIII, Sec. 1); (4) the ordinance contains an unlawful delegation of legislative authority to the treasurer of the City of Pittsburgh; and (5) the tax imposed by the ordinance exceeds the maximum rate which under the Act is allowed for a mercantile tax. We find none of these

[ 443 Pa. Page 353]

    arguments persuasive and affirm the order of the lower court.*fn1

(1) The Act is a substantial re-enactment of the so-called "Tax Anything Act" of June 25, 1947, P. L. 1145, as amended, 53 P.S. § 6851 et seq. See University Club v. Pittsburgh, 440 Pa. 562, 271 A.2d 221 (1970); Wilkes-Barre Appeal, 208 Pa. Superior Ct. 424, 222 A.2d 499 (1966). See also Crawford v. Southern Fulton School District, 431 Pa. 324, 246 A.2d 332 (1968); Lynch v. O. J. Roberts Sch. Dist., 430 Pa. 461, 244 A.2d 1 (1968). The 1947 Act represented a legislative grant of power to the municipalities to tax anything except in those areas specifically forbidden by statute. See Rose Twp. v. Hollobaugh, 179 Pa. Superior Ct. 284, 288-89, 116 A.2d 323 (1955). Clearly, the 1965 reenactment represents a similar grant of power, for Section 3 of the 1965 Act declares, in the same language as the 1947 Act, that: "It is the intention of this section to confer upon such political subdivision the power to levy, assess and collect taxes upon any and all subjects of taxation, except as above restricted and limited, which the Commonwealth has power to tax but which it does not tax or license, . . ." Despite the above quoted language, appellants assert that a municipality may not provide for a business privilege tax because that particular tax is nowhere mentioned in the Enabling Act. We cannot accept such a narrow interpretation. Section 2 of the Act generally states that municipalities may provide for taxes on "persons, transactions, occupations, privileges, subjects and personal property."

[ 443 Pa. Page 354]

It then carves out certain exclusions from the broad grant. Nowhere is it stated that business privilege taxes are outside the range of the taxing powers granted. We find, accordingly, that the City of Pittsburgh did have the power to enact the contested ordinance.*fn2 See University Club v. Pittsburgh, supra; McGillick v. Pittsburgh, 415 Pa. 581, 203 A.2d 480 (1964); O. H. Martin Co. v. Sharpsburg Borough, 376 Pa. 242, 102 A.2d 125 (1954); Federal Drug Co. v. Pittsburgh, 358 Pa. 454, 57 A.2d 849 (1948).

(2) Appellants next assert that even if the City did have the power to enact a business privilege tax, this tax is invalid as applied to them because, in contravention of Section 2(3) of the Act, the ordinance imposes a tax on the privilege of employing tangible property which is presently the subject of state taxation.*fn3 Section 2(3) of ...


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