Lower Dauphin School District v. Kutler , 76 Pa. Commw. 87 ( 1983 )

Opinion by

Judge MacPhail,

Section 2 of The Local Tax Enabling Act (Act), Act of December 31, 1965, P.L. 1257, as amended, 53 P.S. §6902, authorizes certain enumerated political subdivisions to levy taxes on “occupations”. Pursuant to that authorization, the Lower Dauphin School District (School District) enacted a resolution imposing such a tax for the fiscal years 1973-1974 and 1974-1975. Appellees, plaintiffs below,¹ paid the taxes and then commenced an action in assumpsit to recover the taxes which they claimed were unlawfully levied. The gravamen of the action is Appellees’ contention that they have no taxable occupation. The issue presented to the trial court was whether retired persons and housewives have taxable occupations within the meaning of the Act. That court held that they did not. This appeal followed.²

Cases involving the tax on occupations are numerous but there is no appellate authority in Pennsylvania regarding the specific issue now before us. When the issue has been considered by trial courts in Pennsylvania, the results have differed.³

The disposition of the issue before us depends upon the definition of the term “occupation” as it is used in the statute. There is no statutory definition nor is the term defined in the tax resolution now before us. It is true, as School District notes, that the words of a statute are to be construed according to their common and approved usage unless they are technical words or words which have acquired a peculiar and appropriate meaning. Section 1903 of the Statutory Construction Act of 1972, 1 Pa. C. S. §1903. As early as 1885, our Pennsylvania Supreme Court held, ‘ ‘ An ‘ occupation ’ tax is peculiar in its character. It is not a tax upon property, but upon the pursuit which a man foliotes in order to acquire property and support his family.” Banger’s Appeal, 109 Pa. 79, 95 (1885) (emphasis added). This definition was quoted with approval in Crosson v. Downingtown Area School District, 440 Pa. 468, 270 A.2d 377 (1970). While School District would have us use dictionary definitions more to their liking, we believe our Supreme Court has defined the term in positive language and that we may adopt it and, indeed, may be bound by it.

Section 1921 of the Statutory Construction Act of 1972,1 Pa. C. S. §1921 requires us to construe statutes by ascertaining and effectuating the intent of the General Assembly. In this regard, we note that Section 2 of the Act provides in pertinent part that :

Each local taxing authority may, by ordinance or resolution exempt any person whose total income from all sources is less than five thousand dollars ($5,000) per annum from the . . . occupation tax....

The original statute provided for an annual income exemption of $2,000. At the time the case sub judice was at issue before the trial court the exemption was $3,200. The statute was last amended in 1982 to provide for the present $5,000 exemption. Since the law is well settled that the occupation tax is not an income tax, Banger’s Appeal, there must be some connectional link between the income exemption provided in the statute and the occupation tax. We are of the opinion that the connectional link is that only income producing occupations are taxable. Such an interpretation would be fully compatible with the judicial definition that an occupation is the pursuit one⁴ follows to acquire property or support a family. We conclude that unless one has an income producing occupation, such person cannot be subject to the occupation tax here levied.

Evidence was produced by School District at the trial' of this case which would tend to prove that a homemaker has an occupation because it has economic value. No one acquainted at all with the services of a homemaker could deny that such services rendered to a family are of inestimable value and involve a variety of occupational skills; but we are here concerned with subjects of taxation rather than a determination of the economic value of any particular activity. The issue is not whether homemakers or retired persons do something of value for themselves or for others but whether what they do produces a realizable pecuniary benefit which could be used by them to acquire property or support a family. We think the answer to the latter question must be in the negative.

In summary, homemakers and retired persons are not subject to an occupation tax because they have no taxable occupation.

School District argues also that if homemakers and retired persons are exempt, the Act would be rendered unconstitutional because its provisions would then violate Article VIII, Section 1 of the Pennsylvania Constitution which requires that all taxes be uniform upon the same class of subjects. School District contends that exempting some occupations while taxing others clearly is in contravention of the Constitution. In support of its argument, School District cites Saulsbury v. Bethlehem Steel Co., 413 Pa. 316, 196 A.2d 664 (1964) where our Supreme Court held unconstitutional an ordinance which exempted individuals who earned less than $600 per annum from an occupational privilege tax. In that case our Supreme Court said:

While different subjects may be reasonably classified for tax purposes . . . there must be no lack of uniformity within the class, either on the given subject or the tax or the persons affected as payers. ... If a tax is levied on an occupational privilege, it must apply to all who share the privilege. Part of the class may not be excused, regardless of the motive behind the action. (Citation omitted.)

Id. at 319-20, 196 A.2d at 666. In Grosson, our Supreme Court upheld a resolution which taxed occupations but exempted persons under 21 years of age. The Court found such an exemption to be a reasonable classification for tax purposes, holding that a taxing authority may classify subjects based on the existence of differences existing in the business world, want of adaptability of the subjects, well grounded considerations of public policy and the impracticability of applying the same methods of taxation so as to produce uniformity and justice.

In the instant case, we have held that neither retired persons nor homemakers have taxable occupations. As a result, such persons are not proper subjects of the tax. Since they have no taxable occupation, we need not consider whether this is a reasonable classification of persons with occupations. We hold the constitutional issue to be without merit.

Order affirmed.

Order

The amended order of the Court of Common Pleas of Dauphin County dated January 9,1981 is affirmed.

1 William J. Kutler and Willard E. Kidwell commenced this action as a class action. The class was subsequently identified and certified pursuant to the Pennsylvania Buies of Civil Procedure. Prior to the trial of the case, the trial court, permitted the addition of Buth Lucille Gardner as a named plaintiff.

2 This case was argued before a panel of this Court in December of 1981 and reargued before a court en bane in September of 1982. It was assigned to the opinion writer on June 9, 1983.

3 The York County Court of Common Pleas found the subjects taxable. Miller v. York Imperial School District, 23 D. & C.2d 406 (1960) and Lashe v. Northern York County School District, 92 York 127 (C.P. Pa. 1979), rov’d on other grounds, 52 Pa. Commonwealth Ct. 541, 417 A.2d 260 (1980). The Common Pleas Courts of Lancaster County, Centro County, Dauphin County and Perry County are contra. Bigler v. Penn Manor School District, 63 Lanc. Rev. 409 (C.P. Pa. 1972), State College Area School District, 9 Centre Co. L.J. 417 (C.P. Pa. 1974), Peifer v. Central Dauphin School District, 97 Dauph. 199 (C.P. Pa. 1975) and 25 Taxpayers v. School Directors West Perry School District Civil Action No. 80-948, Perry County Court of Common Pleas, filed November 21, 1980.

4 We recognize the gender problem in the judicial definition in masculine terms and in the claimed exemption here for “housewives”. We are of the opinion that the judicial definition is not self-limiting to males nor is the claimed exemption self-limiting to females.