11 Pa. Commw. 507 | Pa. Commw. Ct. | 1974
Opinion by
We are again confronted with issues arising out of the City of Pittsburgh’s effort to obtain public revenue from persons who must find places to park motor vehicles or from persons who, for a price, would provide such accommodations-or on account of the transaction whereby the one obtains and the other supplies that tiny sanctuary from the hated parking ticket and the dreaded municipal tow truck.
After our decision in Alco Parking Corporation v. Pittsburgh, 6 Pa. Commonwealth Ct. 433, 291 A. 2d 556 (1972), upholding but questioning the reasonableness of Ordinance No. 704 which imposed a tax of 20
“No tax leAded for the first time by any political subdivision to which this act applies shall go into effect until thirty days from the time of the adoption of the ordinance or resolution levying the tax. Within said thirty days, taxpayers representing tiventy-five percent or more of the total valuation of real estate in the political subdivision as assessed for taxation purposes, or taxpayers of the political subdivision not less than twenty-five in number aggrieved by the ordinance or resolution shall have the right to appeal therefrom to the court of quarter sessions of the county upon giving bond Avith sufficient security in the amount of five hundred dollars ($500), approved by the court, to prosecute the appeal with effect and for the payment of costs. The petition shall set forth the objections to the tax and the facts in support of such objections, and shall be accompanied by the affidavit of at least five of the petitioners that the averments of the petition*510 are true and the petition is not filed for the purpose of delay.
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“It shall be the duty of the court to declare the ordinance and the tax imposed thereby to be valid unless it concludes that the ordinance is unlawful or finds that the tax imposed is excessive or unreasonable; but the court shall not interfere with the reasonable discretion of the legislative body in selecting the subjects or fixing the rates of the tax. The court may declare invalid all or any portion of the ordinance or of the tax imposed or may reduce the rates of tax.”
The petitioners’ objections are that the tax imposed by Ordinance No. 30 is confiscatory because it prevents the operator-petitioners from making a profit, that it discriminates against the operator-petitioners in favor of the Public Parking Authority of Pittsburgh
The city filed preliminary objections which included a demurrer on the ground that “the complaint relies for a relief on an unconstitutional delegation of taxing power to the judiciary.” The court below sustained the demurrer and dismissed the appellants’ petition without evidentiary hearing or leave to amend. We are required to reverse.
(1) That none of the petitioners appear by their pleading to be taxpayers aggrieved by the ordinance and therefore lack standing; the operators, because the new tax is not imposed on them and because their complaint that the tax will cause them to lose patronage is speculative and remote; the individual petitioners because, even if they complain as patrons of parking facilities required to pay the tax, their interest is no different from that of any other member of the general public and “no one has a right not to be taxed.”
(2) That the Legislature has by Section 6 of The Local Tax Enabling Act unconstitutionally delegated legislative power to the judiciary.
We have concluded that the lower court’s action in dismissing the petition was error.
The Local Tax Enabling Act was enacted in 1947. Act of June 25, 1947, P. L. 1145.
The court below held that neither parking lot operators who may suffer loss of business nor individual persons who will have to pay the tax are aggrieved taxpayers given the right to appeal by Section 6. We disagree. We must, in determining who the Legislature meant should have the right to complain in this kind of case, “look at the Act as well as the facts.” Committee to Preserve Mill Creek v. Secretary of Health, 3 Pa. Commonwealth Ct. 200, 206, 281 A. 2d 468, 472 (1971). While, as we have noted, The Local Tax Enabling Act gives municipalities wide discretion to tax, it also prescribes notice and other procedural requirements to the passage of the authorized taxing measures and it imposes limitations on certain specific levies and the general requirement that they must be the product of the exercise of a reasonable discretion and not excessive. Surely the Legislature intended to afford ready access to judicial determination of the regularity of these enactments. If operators of lots are taxpayers of the municipality and if they can prove, as they allege, that the tax, although imposed on their patrons, will cause them loss of income, it seems to us that they have standing to complain by the plain wording of the Section. If the individual petitioners, subjected to the tax, are not taxpayers aggrieved, we cannot conceive of who may be. Finally, the thing ap
The lower court, as noted, held Section 6 unconstitutional as a delegation to the judiciary of legislative power, that is, the power to tax. It discerned this most clearly apparently in the phrase empowering the court “to reduce the rates of tax” upon a finding that a tax is excessive or unreasonable.
The first duty of a Pennsylvania court faced with deciding whether the Act of the General Assembly transgresses constitutional limitations, is to apply fundamental standards to its own deliberations. Some of these are:
(1) “An Act of Assembly will not be declared unconstitutional unless it clearly, palpably and plainly violates the Constitution.” Daly v. Hemphill, 411 Pa. 263, 271, 191 A. 2d 835 (1963). (Emphasis original.)
(2) “. . . [Ejvery presumption is in favor of the constitutionality of acts of the legislative body. . . .” Glancey v. Casey, 447 Pa. 77, 88, 288 A. 2d 812 (1972).
(3) “It is a long recognized doctrine that whenever an act of assembly is susceptible of different interpretations ... it is the duty of a court of justice to give to the act that construction which harmonizes with the constitution, for such is presumed to be the legislative
(4) “It is axiomatic that he who asks to have a law declared unconstitutional takes upon himself the burden of proving beyond all doubt that it is so.” Hadley’s Case, 336 Pa. 100, 104, 6 A. 2d 874 (1939). Section 6, read in the light of these principles and of the history of the legislation of which it is a part, does not offend Article 2, Section 1 of the Pennsylvania Constitution.
It should be borne in mind that the Legislature has not here empowered the judiciary to review the reason
“It is further alleged that by this act the legislature has attempted to delegate legislative power to the courts. A study of the act clearly enough shows, we think, that the court, in entering the decree contemplated by the act, in no sense exercises legislative power. It merely ascertains and defines the boundary line which separates the reasonable from the unreasonable. The legislature, whose creature the appellant is, has declared that in the exercise of the police powers delegated to it, it must keep within that boundary line. With that limitation defined, the municipality, keeping within it, has the exclusive right as before to determine the exact amount of license fees which the corporations mentioned in the act must pay. The municipality is but an agency created by the legislature to do its part in maintaining the public policy of the state and accomplishing the ends for which the state itself exists.”
Finally, the power to reduce the rates of taxes, does not, in our view, confer upon the court the power to tax. The intendment of the phrase, construed as required with the purpose of upholding the constitutionality of Section 6, is that the court may express its judgment as to what rate is not excessive (as was done by Judge Woodside in Moon Township Schools v. Tiglio, supra), or unreasonable. The ordinance or resolution remains that of the political subdivision which may continue the enforcement of its taxing measure at the reduced rate found to be reasonable by the court or repeal it and look for other sources of revenue. The determination of what is a reasonable rate of tax would be made judicially on the basis of the record. The process might be more complex perhaps, but substantively not more difficult than that employed in deciding, for example, whether a Zoning Hearing Board has abused
We find no inconsistency in our holding in Aleo that there is no constitutional limitation of the amount of a tax (to which holding our Supreme Court has provided an exception for the circumstance in that case of municipal competition) and our holding here that the Legislature may limit the delegation of its taxing power by the provision of judicial review of the discretion exercised by subdivisions in fixing rates.
As we have earlier noted, the statement in the appeal of the individuals’ interest is deficient. The court below believed that an averment of the appeal that the City did not comply with notice requirements was insufficient. These matters are proper subjects for amendment which should be allowed.
Order reversed; the record is remanded for proceedings not inconsistent herewith.
The Supreme Court majority wrote in Aleo Parking: “It must be concluded that the unreasonably burdensome 20 per cent gross receipts tax, causing a majority of private operators to operate their businesses at a loss, in the special circumstances of this case, constitutes an unconstitutional taking of private property without due process of law in violation of the Fourteenth Amendment of the United States Constitution.” 453 Fa. at 269, 307 A. 2d at 864.
It is recognized that first and second class cities were given wide powers to tax by the so-called Sterling Act. Act of August 5, 1932, [Spec. Sess.] P. L. 45, 53 P.S. §15971. If appellate litigation is an indicator, it seems that Philadelphia made more extensive use of this authority than Pittsburgh. Second Class cities (Pittsburgh only) were included in the 1947 Act and in each of its reenactments including the present Act of 1965. They were n’ot excluded from the Sterling Act until 1961 by the Act of July 26, 1961, P. L. 904, 53 P.S. §15971. There is no provision for taxpayer appeal in the Sterling Act.
Providing that “[t]he legislative power . . . shall be vested in a General Assembly.”
Section 3 of the 1947 Act as originally enacted and Section 6 of the 1965 Act are identical except that by the latter the court is given the power to “reduce the rates of tax.” This phrase was added by the amendatory Act of May 9, 1949, P. L. 898, obviously for the purpose of providing, for the municipal subdivision’s convenience, an alternative to outright invalidation.