“While economically the incidence of the tax is on the property itself, its legal incidence is on the privilege of using, making it a true excise tax.”
How later courts described this case
- “While economically the incidence of the tax is on the property itself, its legal incidence is on the privilege of using, making it a true excise tax.”
- business use occupancy limited to actual square footage and number of days used
- dissenting opinion of Justice Roberts
Written by the judges who cited it.
The opinion
*579 Concurring Opinion by
Mr. Chief Justice Bell:
The province and power of a Court is to determine the validity and Constitutionality of a statute and/or an ordinance. In the light of present-day conditions, I believe this commercial use tax is unfair and unwise, but that is not determinative of its validity or its Constitutionality.
The issues here involved, namely, (1) whether the tax is a property tax or an excise tax, and (2) whether the tax is Constitutional, present close and difficult questions. A property tax, we all agree, must comply with our Constitutional requirement of uniformity, Pennsylvania Constitution, Article VIII, Section 1. Although the distinction between a property tax and a use or privilege or excise tax is often, and is here, because of the poorly worded ordinance, shadowy, I believe that this tax is a privilege or use or excise tax, and not a tax on real estate as such, and is valid and Constitutional.
However, I take this opportunity to state that our Court has made a mistake in the test which we have created for the determination of the Constitutionality or Unconstitutionality of a statute or ordinance. We have too frequently unwisely expressed the test in the language which is quoted in the majority Opinion: “No act or portion thereof should be declared unconstitutional unless ‘it violates the Constitution clearly, palpably, plainly, and in such manner as to leave no doubt or hesitation in our minds’ ” * Realty Corp. v. Philadelphia, 390 Pa. 197, 205 , 134 A. 2d 878 ; Sablosky v. Messner, 372 Pa. 47, 59 , 92 A. 2d 411 ; Kelley v. Baldwin, 319 Pa. 53, 54 , 179 Atl. 736 .
In these troubled times, when doubt, hesitation and confusion are so prevalent throughout Pennsylvania, and indeed throughout our entire Country, as to be a *580 part and parcel of nearly everything we do, think about, or see, or hear or read in our everyday life, the inclusion in the test for Constitutionality “as to leave no doubt or hesitation in our minds” has become a very foolish, very unrealistic, and very unnecessary part of the test for determining the Constitutionality or the Unconstitutionality of an Act and/or an ordinance.
For these reasons, I would change and completely eliminate from the test of Constitutionality, the words “and in such manner as to leave no doubt or hesitation in our minds”.
Italics, ours.