Banger's Appeal , 1885 Pa. LEXIS 485 ( 1885 )

Mr. Justice Paxson

delivered the opinion of the Court,

Had there been any serious dispute as to the facts of this case we might, and probably would, have sent it back, or referred it to a Master to find the facts. There was no Master below, and there is no distinct finding of facts by the court. But inasmuch as a careful examination of the testimony as taken by the Examiner discloses no conflict, we have concluded to consider and dispose of the case as presented.

The plaintiff is a citizen and taxpayer of the city of Williamsport. He complains that the city has assessed his “ occupation ” at $2,000, and that in doing so the said city has “ clearly violated the provisions of the Constitution of Pennsylvania, wherein it provides that all taxes shall be uniform upon the same class of subjects, in that assessing him with an occupation valued at $2,000 the said committee discriminated between him and the large majority of the taxpayers of the city of Williamsport by assessing him with an occupation based upon his alleged income, which rule or basis of assessment the said committee adopted neither as to the assessment made upon themselves, nor upon the large majority of the taxpayers. of the city of Williamsport, thereby levying a tax upon him far beyond the tax levied upon other individuals upon the same subject matter.”

The principal questions presented for our consideration are : 1st. Has the city of Williamsport power to assess and levy a tax upon “ occupations? ” and 2d. If it possesses such power, was the power exercised in accordance with the mandate of the Constitution ? We will consider these propositions in the order in which they are stated.

It was conceded that the city comes under the general Act of May 23d, 1874, P. L., 230, entitled “An Act dividing the cities of this State into three classes,” &c., clause 1 of § 20 of which authorizes cities of the third class “ To levy and collect taxes for general revenue purposes, not to exceed ten mills on the dollar, in anyone year, on all the real,personal and mixed property within the limits of said cities, taxable according to the laws of the State of Pennsylvania,” &c.

It is very certain that an “ occupation” is not real, personal or mixed property within the meaning of this Act. We must therefore look further for authority to levy this tax. It is said to be found in the supplement to said Act passed on March 18th, 1875, P. L., 15, the first section of which enacts : “That it shall be lawful for cities of the third class, in their corporate capacities, to provide by ordinance or ordinances for the assessment and collection of taxes not exceeding one per centum upon the assessed valuation, in any year, on all persons, real and personal property, and all other matters and things within said respective cities, taxable for state and county purposes,” &c.

The terms of this Act appear sufficiently broad. It was contended, however, that as there is no state tax on “ occupalions,” it is not enough to show that they are made by law taxable for county purposes. In other words, before the city can show that she can tax any species of property it must appear that such property is taxable both for state and county purposes. We regard this as a narrow view of the Act of 1875. It was evidently intended to authorize cities of the third class to levy a tax upon any species of property which is at the same time taxable for either state or county purposes. The state limits its taxation to few subjects. Real Estate is entirely exempt. If we sustain the contention of the appellants the city could not tax the real estate within its limits, and upon the same principle many other prolific sources of revenue would escape taxation altogether by the municipality. It could not raise revenue to light its streets or pay its policemen.

We are in no doubt as to the first proposition. The second presents a more serious question. Before I proceed to its discussion it is proper to dispose of the preliminary question of jurisdiction. It was urged that a court of equity will not interfere to restrain the collection of taxes, but will leave the party aggrieved to his remedy at, law. This is true where the tax is lawfully assessed, or where the matters complained of are mere irregularities in the valuation or assessment; but where there is either a want of power to tax, or a disregard of the Constitution in the mode of assessment, we have no doubt of the power and the duty of a court of equity to interfere : St. Clair School Board’s Appeal, 24 P. F. S., 256; Wheeler v. The City of Philadelphia, 27 Id., 338; Kitty Roup’s Case, 32 Id., 211.

In view of the importance of this question it is essential to have a thorough understanding of the facts. They will be stated with greater detail than would have been necessary had there been a finding by a Master.

The bill avers and the answer of the city admits that the tax upon “occupations” was based upon the income from said occupations. The tax committee of councils in their circular addressed to the assessors enjoined them “ to assess all offices and posts of profit, professions, trades and occupations at what you shall believe to be the actual yearly income arising therefrom.”

The tax appears to have been levied under that portion of the city ordinance which provides that a tax shall be assessed on “ all personal property, and all objects and things assessed as unclassified.” Under this general provision the assessors were directed, as before stated, “ to assess all offices and posts of profit, professions, trades and occupations,” according to the income derived from them. There appears to have been no attempt to divide these several subjects of taxation, but all were included under the general term of “ occupation.” Nor was there any attempt at classification. Just how it was done fully’ appears in the testimony taken by the Examiner. William Norris, one of the assessors, was examined and said :—

“Where I knew what a man’s salary was I assessed him eighty per cent, of it. That was done by authority of the tax committee, who instructed me to assess salaries at eighty per cent, of their amount, and not in any case to assess an income, whether derived from dividends, money at interest or mortgages. In the case of persons not receiving salaries, merchants, manufacturers, and the like, I assessed them, with the exception of professional men, such as attorneys and physicians, at a sum equal to what they could employ a person to do their work for them. I did not assess merchants, manufacturers and the like upon the basis of their incomes in any case ; I was positively directed not to do so. Laboring men I assessed at not less than $100. I was obliged to assess them that much ; none less than $100. If not that, nothing at all. I did not observe the same rule in assessing laboring men that I did in assessing salaried men, to wit, at eighty per cent, of their salaries. Laboring men averaged from $100 to $200. .....I made a distinction between income and occupation. I considered as income the result of some investment in real or personal property the principal of which paid tax. I considered as occupation what a man received as salary or earnings during the year.”

William Tallman, assessor, said :—

“ In making my assessment on occupations I considered that laboring men would be able to work 100 days in the year at $1 a day; so I assessed them at $100......Mechanics, and those who I considered earned more than $1 a day’, I assessed at $200. I did not assess laborers and mechanics at eighty per cent, of what I considered they earned. I observed no such basis with them. In the ease of men who received monthly’ or yearly salaries, if I knew what they’got, I assessed them at eighty per cent, of such amount. Those persons who received no salary or wages I also assessed with an occupation. Such persons I assessed upon no basis at all...... If a man had $50,000 in business, which I knew brought him a return of $10,000 a year, I would assess him at $8,000. .....I assessed John H. Burrows, hatter, $500 ; I assessed him at that amount as being what I thought he could earn, and what his occupation would be worth; D. H. Troxell, grocer, $200 ; I thought he could make that amount in his business, so I assessed him with an occupation of $200; John Kurtz, shoe merchant, $200; E. M. D. Levan, stoves, $500 ; Hie committee reduced it to $800 : I guess lie was on the committee ; Thomas Polleys, wholesale grocer, $300; I put him at $300 and the committee raised it to 8600 ; I thought $300 was about what he was worth ; he was old and could not do much.”

Frederick Graeff, another assessor, said:—

“ 1 have men in here from $25 up to $1,200 ,or $1,400, and some men I did not assess at all. I will explain it. Old men or crippled, and not able to work, I did not assess at all. Men who earned $100 I assessed at $25, and so on. Laborers who earned from $300 to $400, I assessed at $100. Mechanics I generally assessed at $150 to $200. Merchants, and those who had stores, I ascertained as nearly as possible how mucb, after paying all expenses of their business, not including family expenses, their profit would be, and I then assessed them accordingly, deducting a certain percentage, so as to equalize them with salaried men. I deducted their living expenses from their profits. In the case of salaried men I ascertained the amount of salary they received, and then deducted as near as possible their living expenses for themselves and tlieir families. Suppose a man received a salary of $1,000. I deducted say $200 or $300 for living expenses. I made no difference in cases where the family was larger than in others.”

It is needless to multiply these extracts from the testimony. A number of other assessors were examined, with like result. Each appears to have had his own crude notions of bis dutjp and to have made Ms assessments iiecording to bis ideas of equity. So fixed rule seems to have prevailed among them. The assessment upon “occupations” is hopelessly, incurably vicious. The plain mandate of the Constitution has been wholly ignored. It is in direct violation of § 1, Article IX., which requires that “ All taxes shall be uniform, upon the same class of subjects, within the territorial limits of the authority levying the tax,” &c.

The learned Judge of the court below failed to see in the evidence anything like want of uniformity in the assessment of this tax. This, however, is more in the nature of a conclusion of law upon the testimony than as a finding of fact. He says : “ It has not been shown that any occupations have

been exempted from the assessment of a tax under the Act of March 18th, 1875, nor that there has been any discrimination in the mode of assessment. If the tax had been restricted to only certain kinds of occupations, or to a particular class, and others had been exempted therefrom, the inequality and want of uniformity would be manifest. But nothing of tlic kind appears in the evidence.”

These views of the learned court are well enough as far as they go, but they So not come to the proper standard of uniformity. However they might have been regarded prior to the adoption of the present Constitution, they do not conform to the requirements of the organic law as it exists at the present time. That requires not merely that there shall be no exemption of persons or classes, but that upon persons and classes the tax shall be uniform. Thus in levying a tax upon “ occupations,” a tax of $100 upon every person having a known occupation would be uniform. But what uniformity is there in laying an “ occupation ” tax of $100 upon A. and a like levy of $200 upon B., the occupation of each being similar ? The answer, and the-only one that can be urged is, that B. earns double the amount that A. does. This brings us at once to a vice underlying the whole case. Under the guise of an “ occupation ” tax, the city of Williamsport has levied, and is seeking to collect, an income tax. Of all forms of taxation this is the most odious to the American people. It was submitted to during the war from a feeling of patriotism in view of the great financial strain to which the country was subjected. But when no such cause exists there is little excuse for imposing such an obnoxious burden; still less ought it to be permitted without authority of law, and under the cloak of a tax upon occupations.

The tax we are considering is especially odious from the fact that it assumes to tax the income derived from labor and exempts the income derived from capital. This will be understood by a reference to the testimony which I have cited, from which it appears that in assessing the value of a laboring man, a. clerk, a lawyer, a physician, or a clergyman, the value of his occupation was fixed by reference solely to the income he derived, or was supposed to derive, from it; while upon the banker, the merchant, or the manufacturer, no such rule was adopted; he was assessed at what it would cost to hire a clerk to perform his duties. Yet so crudely was the matter done, that there appears to have been no uniformity even in the want of uniformity. This will appear by an examination of Mr. Graeff’s testimony.

The power to levy an occupation tax gave the city no right to levy an income tax. It gave the assessor no authority to inquire into the income of any one, nor to base anything upon a refusal to answer such questions. The inquiry itself was impertinent and unlawful.

It maj'- be asked how an occupation is to be assessed,, and how is the constitutional mandate to be complied with ? The answer is not difficult. A tax of $100 upon all occupations would be uniform. We are.at once confronted with the objection that it would be unjust to tax the occupation of a laborer the same amount as a merchant, a physician, or a lawyer. The injustice of sucli an exercise of the taxing power may be conceded, without in any degree impairing the force of the argument. The objection is one that appeals more to the legislative than to tbe judicial department of the government. The proper result may possibly be reached by classification. Tims, it may be that physicians, lawyers, clergymen, merchants, bankers, manufacturers, mechanics, &c., may be classified, and a uniform occupation tax assessed upon eacli class. But it will not do to tax one member of a class @100 and another member of the same class @1,000, upon the supposition, or even upon the fact, that the one earns more than the other. An “ occupation ” tax is peculiar in its character. It is not a tax upon property, but upon the pursuit which a man follows in order to acquire property and support bis family. It is a tax upon income in the sense only that every other tax is a tax upon income ; that is to say, it reduces a man’s clear income by the precise amount of the tax. But it is an income tax in no sense. It will be time enough to assess an income tax when the legislature authorizes it; at present no such authority exists.

The decree is reversed, and it is ordered that the record be remitted to the court below with instructions to issue an injunction as prayed for in the bill; the costs in this court and in the court below to be paid by the city of Williamsport, appellee.