Phillips v. Barnhart

27 Pa. Super. 26 | Pa. Super. Ct. | 1904

Opinion by

Henderson, J.,

The Act of May 8, 1854, P. L. 617 provides a mode by which the several boards of school directors are authorized to assess and collect school tax from year to year. The twenty-ninth section of the act directs “ that for the purpose of enabling the board of directors or controllers to assess and apportion the tax for the ensuing school year the county commissioners shall, when required, furnish the president or secretary of the board with a correct copy of the last adjusted valuation of property, subjects and things made taxable in the same, for state and county purposes; which said property, subjects and things are hereby made taxable for school purposes, according to the provisions of this act.” Among the subjects of taxation at that time were “ All offices and posts of profit, professions, trades, occupations, and all single freemen above the age of twenty-one years, who shall not follow any occupation or callings.”

The several boards of school directors and controllers are required by the thirtieth section of the same act to apportion the school tax pursuant to the act on or before the first Monday in June in each year.

By the 2d section of the Act of May 21, 1857, P. L. 681 it was provided that “ Hereafter the tax imposed by section 30 of the act approved May 8,1854, for the regulation and continuance of a system of education by common schools, on trades, professions and occupations, or on single freemen, shall in no case be less then one dollar.” An Act was passed April 11, 1862, P. L. 471, which provides in its fifth section that “ upon every resident male taxable, of the age of twenty-one years whose name is found entered upon the last adjusted valuation, furnished according to law to any board of directors or controllers; . . . . the proper board of directors or controllers shall assess the minimum occupation tax now allowed by law to be collected with the other school tax of the district, now payable by such person.”

The Act of July 22, 1897, P. L. 305 is entitled “an act to authorize and empower the school directors and controllers of the several school districts within this commonwealth to levy and collect a per capita tax annually for school purposes.” The first section of the act authorizes the several boards of school directors and controllers of the commonwealth “ to levy and collect annually a per capita tax of one dollar for school purposes, from each and every male inhabitant of the age of twenty-one years and upwards, within their respective districts.” The second section directs that the tax authorized by the first section of the act shall be levied and collected at the same time and in the same manner as school taxes are now levied and collected. The third section declares that the per capita tax authorized by the act “ shall be in lieu of the occupation tax for school purposes.” The defendant school board has levied and seeks to collect the tax authorized by the act last recited and also the tax authorized by the 5th section of the act of April 11, 1862, and in so doing contends that the 3d section of the act of 1897 is in violation of the 3d section of article 3 of the constitution. The act of April 15, 1834 •not only provided for the taxing of offices, professions, trades and occupations but also subjected single freemen, above the age of twenty-one years who did not follow any occupation or calling, to liability for tax. Neither that act nor the act of 1857, which fixed the minimum amount to be assessed, described the tax as an occupation tax. In the act of April 11, 1862, however, the tax authorized by the act of May 21, 1857 is described as an “occupation tax ” and every resident male taxable, of the age of twenty-one years whose name appeared upon the last adjusted valuation was subjected to the payment of the minimum occupation tax. It seems apparent from a consideration of the several statutes referred to that the object of the act of July 22, 1897, was to provide for a per capita tax which should be a substitute for the tax described as an occupation tax in the act of April 11, 1862. The act of 1897 declares that the tax thereby authorized is “ in lieu of the occupation tax ” and inasmuch as it provides a tax of the same character as that provided by the act of 1862, in part at least, there can be no doubt of the legislative intention to have the tax provided for by the last statute take the place of that authorized by the preceding statutes. The effect of a different interpretation would be to impose two taxes of the same character on a very large number of taxables. The tax which is described as a “minimum occupation tax” in the act of 1862 was not in fact an occupation tax as to male taxables over twenty-one years of age not engaged in any calling, nor, as we have seen, was it described as an occupation tax in the acts of 1854 and 1857. Inasmuch, then, as a uniform tax was imposed upon all male taxables under the act of 1862, it was to all intents and purposes a per capita tax, and the legislation of the act of 1897 was upon the same general subject.

It is to be kept steadily in mind that an act of the legislature is only to be declared unconstitutional where the prohibition is expressed or necessarily implied. To doubt is to be resolved in favor of the constitutionality of the act: Commonwealth v. Butler, 99 Pa. 535. It was said in Sugar Notch Borough, 192 Pa. 349 : “ It must not be lost sight of that the attitude of the courts is not one of hostility to acts whose constitutionality is attacked. On the contrary all the presumptions are in their favor and courts are not to be astute in finding or sustaining objections.” Tt was held in Commonwealth v. Hospital, 198 Pa. 270, that if a statute seeks to accomplish one general purpose by one general means it will be deemed to contain but one subject, even though the details or the specific Means are multiplied to any extent, provided they are in fact subordinate and germane to the general aim. A subsequent statute revising the whole subject-matter of a former statute, and evidently intended as a substitute for it, although it contains no express words to that effect, operates to repeal the former: Ft. Pitt Bldg. & Loan Association v. Model Plan Bldg. & Loan Association, 159 Pa. 308. The court held in Commonwealth v. Moir, 199 Pa. 534, that the repeal of previous acts on the same general subject is always germane to the title. The general subject of the act in question is the levying and collecting of a per capita tax for school purposes, which was intended to be a substitute for the legislation theretofore existing with reference to the assessment of school tax on male taxables over twenty-one years of age, as authorized by the act of April 11, 1862. The 3d section of the act of 1897 is so germane to the subject of the statute as to be embraced within the title, notwithstanding the fact that the title does not make special reference to the repealing section. The per capita tax imposed upon male taxables over twenty-one years of age not engaged in any callings is so joined with the “ minimum occupation tax ” authorized by the act of 1862 that the whole subject of taxation provided by the latter statute is involved in the act of 1897 and the legislative intent to provide for but one tax is included in the title of that act. An occupation tax is not a tax upon property, but in the language of the statute, upon the calling, in which the taxable is engaged. It was said in Banger’s Appeal, 109 Pa. 79, to be a tax upon the pursuit which a man follows ; nor is it in a legal sense a tax upon income. We are not at liberty to say that the legislature might not treat it as a per capita tax in the enactment of statutes regulating the assessment and collection of school tax. The learned judge of the court below therefore reached a correct conclusion on the question raised by this appeal, and the decree is affirmed.