Appeal from the judgment of the Court of Common Pleas for the County of Chester, No. 144, Miscellaneous Term, 1970, in case of In Re: Appeal from enactment of occupation tax resolution by Coatesville Area School District.
A. Bruce Niccolo, with him Arthur A. Moorshead, Moorshead & Niccolo, for appellant.
Franklin L. Gordon, with him Gordon and Ashton and Milton Apfelbaum, for appellee.
President Judge Bowman, and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer and Rogers. Opinion by Judge Mencer.
Appellant, one of a group of 32 taxpayers, sought, in the Court of Common Pleas of Chester County, to have the occupation tax resolution enacted by the Coatesville Area School District declared invalid and unconstitutional. The authority for the School District's action was The Local Tax Enabling Act, Act of December 31, 1965, P.L. 1257, § 1 et seq., 53 P.S. § 6901 et seq. (Supp. 1970). Appellant appealed to the lower court from a reenactment on June 25, 1970 of an occupational tax resolution enacted on May 21, 1968. Since the rate of the tax was to be changed from 250 mills to 290 mills, the School District concluded that it was
necessary to fulfill the advertisement requirements of Section 4 of The Local Tax Enabling Act, supra, 53 P.S. § 6904, prior to the adoption of any resolution imposing the tax at the increased rate. In accordance with the provisions of Section 4, a notice of the intention to adopt a resolution imposing the tax at the 290 mills rate was published in the Coatesville Record, a newspaper of general circulation, on May 28, June 4, and June 11, 1970. This notice stated that it was the intention of the Board of Education of the School District to adopt the resolution at its meeting to be held on June 18, 1970. On June 15, 1970, a news item appeared on the front page of the same newspaper in which the required three notices had appeared, stating that the Board meeting scheduled for June 18, 1970 would be held not on that date but rather on June 25, 1970. The meeting was held on June 25, 1970, and the resolution imposing the tax in question was adopted, to become effective July 1, 1970. Appellant and others filed a timely appeal which after hearing was denied by the lower court by an order filed January 14, 1971. This appeal followed, and we affirm the lower court's order.
The appellant raises three questions on this appeal: (1) Was the meeting of the School Board at which the subject occupation tax resolution was adopted duly advertised and held in accordance with the statutory requirements?; (2) Was the subject tax duly levied upon assessments made in accordance with the mandatory requirements of the fourth to eighth class county assessment law? and (3) Is a tax resolution which differentiates between persons solely on the basis of residence constitutional?
The first contention of appellant is answered by, and we believe controlled by, Wilkes-Barre Appeal, 208 Pa. Superior Ct. 424, 222 A.2d 499 (1966). In Wilkes-Barre Page 513} Appeal the City Clerk of Wilkes-Barre was directed, on December 7, 1965, by the City Council to advertise the City's intention to impose an income tax by ordinance to be enacted on December 31, 1965, under the authority of the Act of June 25, 1947, P.L. 1145, as amended. On December 8, 15, and 22, 1965, such notice was advertised in a newspaper. On December 31, 1965, the Governor signed into law The Local Tax Enabling Act, supra, effective January 1, 1966, which provided, in part, that the Act of June 25, 1947, P.L. 1145, as amended, was repealed. On December 31, 1965, however, City Hall was closed for the New Year holiday. On January 4, 1966, at a regular meeting, the Council passed the proposed tax ordinance on first reading, and on January 10, 1966, the Council enacted the ordinance after a second and third reading. The ordinance recited that it was enacted under the authority of the Act of 1947, as amended. The Superior Court held that the ordinance was valid and that the ordinance was properly advertised in accordance with law. Also, and very important to the present case, it was held that The Local Tax Enabling Act, supra, contains no legislative mandate for a public hearing, but the only requirement relevant here is that the public be notified that the enacting body intends to adopt a tax resolution. Further, it was noted that there is a strong presumption that in exercising municipal powers the municipal governing body has not abused its discretion but has acted with reason and good faith. Bilbar Construction Company v. Easttown Township Board of Adjustment, 393 Pa. 62, 141 A.2d 851 (1958).
Here we must conclude after an examination of the record that the public had ample information and opportunity to express its opposition to the adoption of the ...