Lawrence Township School District Tax Case , 362 Pa. 377 ( 1949 )

I cannot agree that the resolution of the Lawrence Township School District of September 15, 1947, imposed a tax on property. It is true that the levy is one of five cents a tonon all coal mined from property in the Township, but in determining the real character of a tax all the authorities agree that there must be taken into consideration the language of the statute, ordinance or resolution as a whole in order to ascertain the intent of the legislative body, for it is thatintent which constitutes the controlling factor. A reading of the present resolution with that objective in mind leads me to the irresistible conclusion that the tax was intended to be imposed, not upon coal as such, but upon the business or activity of the companies and individuals who mine it. This becomes plain by merely transposing the order of the paragraphs, whereupon it will appear that the tax is to be collected "from all individuals . . . corporations, or any other groups who mine coal from property located in Lawrence Township"; it is to "become due on the last day of each monthfor all coal mined during the preceding month," the amount of coal so mined to be furnished the Tax Collector by the companies or individuals mining it, and the tax is to be at the rate of five cents per ton on all coal mined in the Township. It is thus evident that the tax is not imposed on anyone because of ownership or possession of coal, as, for example, on dealers or others who are such owners or possessors, but isconfined to those who mine the coal, showing clearly that it is not a property tax. Of course the Board of Directors of the School District might easily have removed the question from the field of controversy had they expressly said in the resolution that they were imposing the tax on the privilege, business or occupation of mining, but, failing that, and even if it were to be conceded that the present phrasing is at all ambiguous and susceptible of two different interpretations under one of which it would be valid and under the other null and void, certainly there must be given the interpretation which makes for validity: — (1) because that would unquestionably represent the Board's intention; and (2) because it is an elementary rule of statutory construction, that, if there be any ambiguity, the construction chosen must be the one which renders the statute, ordinance or resolution valid rather than invalid.

The cases cited in the majority opinion, Commonwealth v. PureOil Co., 303 Pa. 112, 154 A. 307, and Peoples Natural Gas Co.v. Pittsburgh, 317 Pa. 1, 175 A. 691, are clearly distinguishable. In the former of those cases a tax on gasoline was held to be a property, not an excise, tax, because it was payable, not by those who sold the gasoline but by those who purchased it, thus showing that it could not have been the legislative intention to assess the tax upon the vendors for the privilege of carrying on their business. In the PeoplesNatural Gas Co. case the tax was levied on certain public utilities "in respect to the ownership or use by said companies or individuals of meters or other devices . . ."; these companies and individuals were not manufacturers or vendors of the meters but merely owned and used them, and the court properly held that the tax was a property tax, adopting a quotation from Dawson v. Kentucky Distilleries Company,255 U.S. 288, 294, that "To levy a tax by reason of ownership ofproperty is to tax the property."

Since, then, in my opinion, the tax here under discussion is not a property tax, another objection to it raised by appellants, namely, that it is imposed on a quantity and not an ad valorem basis, likewise fails, because it is only a property tax that must be levied on a basis of values: Commonwealth exrel. Department of Justice v. A. Overholt Co., Inc., 331 Pa. 182,

200 A. 849. Here there is no violation of the constitutional requirement of uniformity since the tax is on the privilege of mining and therefore the value of such privilege is properly measured by the extent to which it is exercised, that is, by the amount of coal mined each month; the rate of the tax is the same as to all engaged in the occupation of mining within the territorial limits of the district in which the tax is imposed: cf. Kittanning Coal Co. v. Commonwealth, 79 Pa. 100.

I would therefore affirm the order of the Court of Quarter Sessions of Clearfield County.

Mr. Justice JONES joins in this dissent.