*1 Pittsburgh School Equitable Company Gas Appellant. District, March Argued 16, 1961. Before Bell, Musmanno, Bok Jones, Cohen, JJ. Eagen, *2 Jr., Solicitor, Edmund W. Assistant School Ridall, School for appel- him Niles Anderson, Solicitor, with lant. John him James B. Sayers,
William U. Eckert, M. Edward Jacob, I. Robert T. Donald Brown, Moritz, appel- for Gherin, Seamans & J. Greene, Eckert, lees. 1961: June 26, Mr. Justice Bell, corporation organized is a appellees
Each PS 15 L. 29, P. Gas Act of the Natural under trans production, in the is et seq., §1981 the public. to of natural distribution portation place office principal maintains Each appellee ap Each of Pittsburgh. City of business within Pub the Pennsylvania to subject regulation pellee for assessment deficiency A lic Commission. Utility through years for the taxes Mercantile License appellee by each against made 1958 or 1959 was Court lower The District. School of the Treasurer Mercantile and held these assessments voided while sell appellees to not applicable Tax License was gas.* in natural ing dealing appellees * ob- years During each mentioned above a Mercantile appellant and filed License from Mercantile tained paid re- due on that the tax shown to be Tax return License been raised questions While subsidiary several the basic will be hereinafter discussed, which companies involved is whether natural on re- gross to of the Mercantile License Tax payment In ceipts words, sale natural gas. or dealers included “vendors, within the wares, merchandise” Mercantile License Tax Act. “An revenue provide title the Act is act mer a temporary school by imposing districts ... oc certain*
cantile tax persons engaging license on pertinently Act .” The cupations and . . . businesses provides: ‘Wholesale dealer’ or
“Section 1: ‘Wholesale (2) in, to dealers who sells person mean any shall vendor’ *3 no and to wares and merchandise or vendors of, goods, persons. other mean shall or ‘Retail vendor’ dealer’
“(3) ‘Retail goods, of, or vendor is dealer in, who person any dealer not a wholesale merchandise who wares or vendor. Every Rate of Imposition
“Section Tax. — following occupations in any engaging person class district of the first shall school any in businesses tax at rate set mercantile license an annual pay or dealers in wares goods, vendors Wholesale forth: (1) of ... brokers, (2) at rate . merchandise in wares and merchan- or dealers goods, vendors, Retail in conducting restaurants persons all dise; drink or refreshments sold, places food, where places of amusement at the persons conducting and all of . . rate . .” gross volume, re- included in the
turn. The aforesaid return appliances. ceipts from sales of stoves and other * throughout, Italics ours. body it
We believe is clear tbe of tbe Act, n wellas from its title that the Mercantile License tax imposed persons engaged not on all was in business, only goods, vendors or wares and mer- persons specifically chandise and certain other enumer- places ated therein who conduct restaurants and analysis amusement. The in the last is we repeat gas company whether a natural its sale of natural is a vendor or dealer in wares and meaning merchandise within the of the Act. parties agree The an invisible, ephemeral fugacious commodity. volatile, is in- subject capable visible and to touch; but it is being possessed, weight has and volume and is precise measurement and sale in metered amounts. appellee’s argument The essence of is that usage and merchandise common refers something tangible, inseparably to and is and is con- merchandising. appel- nected with merchants and gives par- lant a broader construction to Act and ticularly “goods, to the words wares and merchandise”, legislature , and contends that the intended to include exempt expressly all and dealers were not vendors who by the Act. approach
We construction the Act accord principle taxing ance with well settled that a stat strictly any ute must construed and if there rea *4 interpretation doubt as to its sonable that doubt must taxpayer against be in favor resolved Paper taxing Pittsburgh, v. authorities: Products Co. Heights Ownership 137 A. 391 Pa. 2d Glendale 87, 253; Asso. v. School 393 Pa. 143 A. District, 485, Glenolden Building v. Allied 2d Commonwealth 385 386; Credits, Statutory 2d of Pa. 123 A. Construction Act 686; 370, May §58(3), §558(3). P. L. 46 P.S. 1937, 28, 1019, “goods,
We believe that the terms wares and mer- chandise” were not legal intended to have a technical
325
example,
meaning
“malice”
as are the terms
for
such,
legis
intended
but were
“reasonable doubt,”
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given
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to
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Pittsburgh
Dairy
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362 Pa.
District,
v.Co.
Junhin
Rosenberg,
District v.
Phila. School
Appellant gas companies further contends that the proving they have the burden that fall within the exemptions provided disagree in the Act. We with this accurately question contention. More stated, whether clearly vendors and natural included the Mercantile License Act as vendors and dealers in and merchandise, the bur- proof they den of to show that are so included is on the School District. We are convinced that the sellers of natural do not fall or come within the Mercantile intangible License Tax Act in their sales of this commodity. invisible arguments by party contentions and made each quite naturally
have range, analogies, taken a wide similarities and dissimilarities have been advanced to justify position appellant or buttress appellees, may as the case be. We deem it un- necessary analogies any to discuss these or of the al- cognate legedly by party. authorities cited each parties subsidiarily argued (a) All the appellant legally of whether could collect this Pittsburgh, tax on business outside of transacted particular part appellee’s if so what business was particular part conducted within and what was con- Pittsburgh, (b) ducted without if the Act whether, applies gas produced applies, it from the wells of a wholly subsidiary. say owned It will suffice to it unnécessary questions any to answer those questions party. raised either
Order affirmed. part Mr. Chief Justice Jones took no in the con- case. sideration decision this Concurring Mr. Justice Bok: agree Majority’s opinion I with the result of moving wrong. think that its reason is The sale of Mercantile License to the *6 and invisible. intangible is because not but Tax, local but the water and visible, tangible is both Water or dealer a vendor on that account is not company The real reason merchandise. wares, to con- has decided that government is distinction on what sales, taxation by than otherwise trol, and elec- oil, water, utilities: gas, the public as known a public body are fixed by for which the rates tricity, and welfare. rights public’s to the regard with ac- an conception different regulating an altogether minimal. competition the factor in which tivity by Dissenting Me. Justice Cohen: con- opinion’s I the concurring agree While I find at myself majority’s of the reasoning, demnation opinions. of those odds with both sold no doubt that both water There can be to the containers would glass in metal of Pitts- the School District imposed tax by mercantile delivered means of and water are That gas burgh. not change in containers does rather than pipeline a remove thereby characteristics fundamental their of this tax. purview from supplier or reason pre- of no law which would know I also the mercantile license tax upon imposition vent The Act of June P. L. 20, utility. 1947, 745, public a the Act of May 1949, and re-enacted 12, amended imposes upon a mercantile tax §582.1, 24 PS L. 1238, P. in the business of a wholesale entity engaged every or dealer merchandise retail vendor district. first class school This act does nob a within imposition. utilities On the exempt public “tax act” anything the so-called of June hand, 25, after approved PS five §6851, days P. L. 1145, 1947, exempted specifically the act herein under consideration, public Similarly, May the Act of utilities. 23, 1949, expressly exempted public P. L. 24 PS §584.1, payment Temporary on utilities from the Tax Receipts. readily recognized im- it should be that the
Thus, public munity regulated payment utilities from the privilege of mercantile and business taxation does immunity majority and con- rest which the curring opinions solely conjure, founded seek exclusively upon legislative mandate is not which present Tax district Mercantile the first class school regulatory nor is it Act. The tax is neither a device, *7 unique simply an ordi- in the field of taxation —it is nary measure. a tax all vendors revenue As be it should merchandise, wares and including imposed upon all vendors and dealers, such exempted by legis- specifically they are unless utilities, might to ex- that the failure lative enactment. empt oversight. cor- If it should be so, utilities was an acting legislature rected the court such. —not I dissent. Inc., Norway
Bujniewicz Cleaners, Service Appellant.
Argued April Before C. J., BELL, JONES, Bok JJ. Musmanno, Jones, Cohen, Eagen,