Commonwealth v. Harrisburg Light & Power Co

• Decision Date: 27 June 1925
• Docket Number: 5
• Citation: 284 Pa. 175,130 A. 412
• Parties: Commonwealth, Appellant, v. Harrisburg Light & Power Co
• Court: Pennsylvania Supreme Court

130 A. 412

Commonwealth, Appellant, v. Harrisburg Light & Power Co

284 Pa. 175

No. 5

Supreme Court of Pennsylvania

June 27, 1925

Argued May 25, 1925

Appeal, No. 5, May T., 1925, by plaintiff, from judgment of C.P. Dauphin Co., Commonwealth Docket 1923, No. 58, for defendant on case tried by the court without a jury, in suit of Commonwealth v. Harrisburg Light & Power Co. Reversed.

Appeal from tax settlement.

Case tried by court without jury. Before Fox, J.

The opinion of the Supreme Court states the facts.

Judgment for defendant: 27 Dauph. R. 64. Plaintiff appealed.

Error assigned was, inter alia, (13) judgment, quoting bill of exceptions.

We are of opinion that the court erred in entering judgment in favor of the defendant, and, therefore, the thirteenth assignment of error is sustained, the judgment is reversed and it is directed that the court below shall enter judgment in favor of the Commonwealth for the amount due.

John Robert Jones, Special Attorney for Commonwealth, with him George W. Woodruff, Attorney General, for appellant. -- Appellant is a retail dealer as far as sale of appliances is concerned: Com. v. Thorne, Neale & Co., 264 Pa. 408.

There was no double taxation involved: Com. v. Semet-Solvay Co., 262 Pa. 234; Com. v. Shenango F. Co., 268 Pa. 283.

The receipts of the business are not taxed. The vendor or dealer is subjected to a fixed annual license tax, together with an additional tax "graduated according to the gross annual volume of business transacted." The subject of the tax is "the business of vending merchandise" Knisely v. Cotterel, 196 Pa. 614; Com. v Bailey, etc., Co., 20 Pa.Super. 210; Com. v. Abbotts Alderney Dairies, 62 Pa.Super. 451; Atlantic Refining Co. v. Van Valkenburg, 265 Pa. 461; Phila., etc., Steamship Co. v. Com., 104 Pa. 109.

Douglass D. Storey, for appellee. -- The Mercantile Tax Act would subject the same gross receipts to an additional state tax of one mill: Com. v. Coal Co., 156 Pa. 488; Com. v. Brewing Co., 146 Pa. 642.

There is no legislative intent expressed in the Mercantile Tax Act to subject appellee's gross receipts to double taxation: Com. v. Lehigh C. & N. Co., 162 Pa. 603; Com. v. Electric Light Co., 204 Pa. 249; Com. v. R.R., 268 Pa. 271.

Appellee is not engaged in a mercantile pursuit: Com. v. Ice Co., 23 Pa.Super. 267; Malone v. Gas Light Co., 182 Pa. 309.

Before MOSCHZISKER, C.J., FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.

OPINION

MR. JUSTICE SCHAFFER:

Is an electric light company which pays the gross receipts tax levied by section 23 of the Act of June 1, 1889, P.L. 420, liable to pay the mercantile license tax levied by the Act of May 2, 1899, P.L. 184, on the gross receipts from its sale of electric appliances?

The defendant has two places of business in the City of Harrisburg, separate and apart from the plant in which it generates electricity, where it sells electric lamps, fans, wire, lighting fixtures, heating and cooking utensils, motors, sweepers or vacuum cleaners and other electric appliances. During the year 1922 it did a gross business in the sale of these articles amounting to $54,910.73, on which a mercantile tax of one mill per dollar was assessed for the year 1923 amounting to $54.91, together with the annual tax of $2. Defendant appealed from the assessment and the court of common pleas (trial by jury having been dispensed with) sustained the appeal and determined it was not liable for the tax and entered judgment in its favor, from which the Commonwealth appeals.

The court below reached the conclusion that appellee is not subject to the tax because "to impose the tax claimed would be double taxation without the clear intent of the Act of 1899 to impose it." The court recognized that the legislature had the power to impose double taxation (Com. v. Lehigh Coal & Navigation Co., 162 Pa. 603), but was of opinion that there was no clear intent disclosed in the Act of 1899 to impose it, and, as "double taxation is never to be implied unless the implication is unavoidable" (Fidelity Co. v. Loughlin, 139 Pa. 612, 621), decided for defendant's nonliability. With this conclusion we cannot agree, because, in the first place, this is not double taxation; the gross receipts tax is a general revenue measure, the mercantile tax a license tax for the privilege of vending merchandise: Knisely v. Cotterel, 196 Pa. 614; Atlantic Refining Co. v. Van Valkenburg, 265 Pa. 456; Com. v. Pocono Mountain Ice Co., 23 Pa.Super. 267; Baer's App., 82 Pa.Super. 414; Com. v. Abbotts Alderney Dairies, 62 Pa.Super. 451. It would be double taxation where one was additionally levied on the same property for the same purpose.

We cannot subscribe to the thought, even should it be considered that the tax in question is a duplicate tax, that there is no clear intent in the act to levy it. The Act of May 2, 1899 P.L. 184, provides that ". . . each retail vendor of or retail dealer in goods, wares and merchandise shall pay an annual mercantile license tax of $2, and all persons so engaged shall pay one mill additional on each dollar of the whole volume,...