66 A.2d 759 | Pa. | 1949
Lead Opinion
This is an appeal by the defendant, the School District of Unity Township, from a decree enjoining the township from collecting from the plaintiff "a tax of ten (10c) cents per net ton of 2,000 pounds on coal, levied and assessed by the terms of a Resolution of said School District, adopted May 27, 1948, upon coal mined and removed by the plaintiff from land in Unity Township . . ." The plaintiff is Jamison Coal and Coke Company, a Pennsylvania corporation, owner and lessee of coal lands engaged in mining its coal in Unity Township. The defendant township passed the taxing resolution under the enabling Act of June 25, 1947, P. L. 1145, 53 PS 2015.1. While conferring authority to tax, that Act, in section 1 provided that ". . . such local authorities shall not have authority by virtue of this act to levy, assess and collect or provide for the levying, assessment and collection of any tax on a privilege, transaction, subject, occupation or personal property which is now or does hereafter become subject to a State tax or license fee; . . ."
Section 1 of the township's taxing resolution provides, "1. That a tax of ten (10c) cents per net ton of 2,000 pounds on coal and three (3c) cents per net ton of 2,000 pounds on stone, to be paid into the General Funds of the School District, be and it hereby is imposed upon all coal and stone mined and/or removed from the ground in Unity Township or transported into Unity Township for processing on and after the first Monday of July, 1948; . . ." Other provisions provide for the payment of the tax by "persons engaged in mining and removing coal . . . from the ground in Unity Township . . ." and for the collection of the tax.
The plaintiff coal mining company filed its bill for an injunction restraining the township from collecting the tax on the ground of lack of power to levy this tax and, in support of its position, averred in its bill that "The plaintiff, in its corporate capacity, is liable for *392
and now pays to the Commonwealth of Pennsylvania: (a) A capital stock tax levied and assessed annually under the Act of Assembly of the Commonwealth of Pennsylvania, last amended May 14, 1947, P. L. 224 (
"SIXTH: The plaintiff has been advised and avers that the capital stock tax and corporate income tax, which it is obliged to pay as aforesaid, are taxes on its corporate property, and, as a consequence, under the provisions of the Act of June 25, 1947, P. L. 1145, supra, it is not liable for the payment to the School District of the tax levied by said School District under the terms of its resolution adopted May 27, 1948 (Exhibit 'A'), and that the tax so levied and assessed by the School District on the coal mined and removed by this plaintiff from its coal lands situate in the Township of Unity is wholly illegal and void." The township filed a responsive answer. The court in banc heard argument on the bill and answer and entered a decree enjoining the township in accord with the prayer of the bill.
The township on this appeal makes three points. It is first contended that equity has no jurisdiction. It is too well settled for argument that equity will enjoin taxation for want of power to tax: compare Dougherty, Trustee, v. Philadelphia etal.,
Decree affirmed; costs to be paid by appellant.
Dissenting Opinion
For the reasons which I expressed in my dissenting opinion in the case of Lawrence Township School District Tax Case,
The resolution itself provides that the tax is to be paid only by persons engaged in mining the coal, — not by personsowning or possessing it.
What seems to me the obvious fallacy of the majority opinion is that it bases itself solely on the words: "That a tax of ten (10¢) cents per net ton of 2,000 pounds on coal . . . be and it hereby is imposed upon all coal . . . mined," etc.; it wholly ignores all the other language of the resolution as well as the express statement of the intent of the Board hereinbefore quoted and which was evidently designed to prevent any possibility of a construction of the resolution such as the court is now placing upon it. To my mind this tax is clearly an excise and not a property tax, and I would therefore reverse the decree of the Court of Common Pleas of Westmoreland County.
Addendum
We are convinced by the phraseology of the taxing resolution that the intention of the levying school district was to tax all operators whether corporate or unincorporated and that it would not have passed the resolution if it had understood at the time that the tax on the corporate activity was beyond its power: compare Kelley v. Kalodner,
Our previous affirmance of the order of the court below is reaffirmed.