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June 30, 1971

CONSOLIDATION COAL COMPANY, a corporation, Plaintiff,
Lawrence W. BAILEY et al., Defendants

Dumbauld, District Judge.

The opinion of the court was delivered by: DUMBAULD

This judicial odyssey had its genesis in the attempt of the township of Perry, in Greene County, Pennsylvania, to extract an earned income and occupational privilege tax (collectible through withholding by their employer) from the miners (residents of West Virginia) who extract coal from the bituminous deposits underlying said township.

 On January 27, 1968, Perry Township levied a $5 tax "upon the privilege of engaging in an occupation within Township of Perry in the fiscal year 1968, from the effective date of this ordinance, February 1, 1968." *fn1" On December 20, 1968, a tax of one per cent was imposed, for each calendar year beginning with 1969 "upon the * * * compensation earned for activities or services performed or rendered within the Township by individual non-residents of the Township." *fn2"

 It is thus clear that what is taxed by these ordinances is the performance of activities or services, for pay, within the township, that is to say, engaging in a gainful occupation within the township.

 It is plain (to this Court at least) that such a tax is constitutionally valid, and supported by an adequate "nexus." *fn3" It is settled that non-resident federal employees may be taxed by a municipality where they work; *fn4" a fortiori employees of a private corporation are liable to such a tax.

 It was stipulated on appeal in No. 71-1193 that the miners involved in this case are engaged in extracting coal within the bowels of Perry Township. The same stipulation was made at the hearing before this Court on June 21, 1971, after remand. *fn5"

 Thus it is plain that on the merits of the case the tax is constitutional, and that the money withheld by the employer, Consolidation Coal Company, should be paid without delay to Perry Township.

 How may this be done? How may this Court's conclusion be effectuated or "implemented," to use the current bureaucratic jargon?

 With the goal thus in sight, *fn8" let us examine the tortuous maze of complicating factors thrown up by the respective parties to the case.

 The first temple of justice where the peregrinating proceduralists made obeisance and hung their dank weeds as a trophy *fn9" was the Circuit Court of Monongalia County, West Virginia. In that tribunal on April 30, 1969, one Lawrence W. Bailey, a foreman employed by plaintiff Consolidation Coal Company, (contending that the tax was unconstitutional and void), obtained an injunction restraining the company from paying over any part of the withheld wages to the Pennsylvania taxing bodies or collector. (R. 141a-142a). A similar injunction was entered on May 15, 1969. (R. 142a-143a).

 The next tribunal honored by the peregrinating parties was the United States District Court for the Northern District of West Virginia. In that court (perhaps because the Monongalia County court could not obtain jurisdiction over the Pennsylvania taxing authorities), the coal company on August 29, 1969, brought an action of Interpleader under 28 U.S.C. ยง 1335. (R. 146a-151a). The Pennsylvania tax authorities as well as Bailey (as representing the class of 312 miners residing in West Virginia from whom the company had withheld wages) were made parties. Consolidation Coal Co. v. Bailey, 308 F. Supp. 1251, 1252-1253 (N.D.W. Va. N.D. 1970). Judge Sidney L. Christie, on February 5, 1970, held (very sensibly, in our judgment) that the controversy involved Pennsylvania tax law and might more appropriately be determined by the judiciary of that Commonwealth, wherein there was in fact a pending proceeding in which all parties could participate. He therefore dismissed the interpleader action.

 It is not clear what happened to the proceeding, referred to by Judge Christie, but on March 12, 1970, the Perry Township Supervisors sued Consolidation and Bailey (as representing all employees of Consolidation residing in West Virginia and employed at the mine in Perry Township) at No. 542 in Equity in the Court of Common Pleas of Greene County for an accounting. (R. 159a-168a). *fn10" Eodem die the court ordered notice by publication for three successive weeks in the Democrat Messenger, a newspaper published in Waynesburg and established in 1813. (R. 169a-172a).

 The miners contend that the court should have required that the persons whose wages were withheld should be notified individually (as was done in the case at bar), *fn11" but it seems clear that the litigation was one of considerable notoriety, and that it was probably for tactical reasons *fn12" that no appearance was made on behalf of Bailey or his group, and that judgment was taken by default, insofar as they were concerned, on July 6, 1970. (R. 186a-192a). We adhere to the view previously expressed that Judge Glenn Toothman's opinion (in which he quoted from an opinion of our ...

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