For the reasons which I expressed in my dissenting opinion in the case of Lawrence Township School District Tax Case, 362 Pa. 377, 67 A.2d 372, I must dissent in the present case also. In fact the decision here seems to me even more untenable than in the Lawrence Township case, because, instead of leaving their intention to be inferred from the wording of their resolution, the School Board of the Township of Unity has expressly set forth what their intention was, and it is the intention of the legislative body which, under all the authorities, is the controlling factor in determining the nature of the tax. The enacting clause of the resolution is here preceded by "WHEREAS" *Page 394 clauses, two of which are as follows: "WHEREAS, it has come to the attention of the Board that certain persons are obtaining income or profit from the mining and removal of coal or stone on most of which coal or stone no taxes have ever been paid, as it has been considered unmineable; and, WHEREAS, the Board of Directors is of the opinion that a portion of the tax burden for the operation of the School District should be borne by thepersons deriving the benefit of the mining and removal of coal or stone within the township, or transported into township for processing, NOW, THEREFORE," etc.
The resolution itself provides that the tax is to be paid only by persons engaged in mining the coal, — not by personsowning or possessing it.
What seems to me the obvious fallacy of the majority opinion is that it bases itself solely on the words: "That a tax of ten (10¢) cents per net ton of 2,000 pounds on coal . . . be and it hereby is imposed upon all coal . . . mined," etc.; it wholly ignores all the other language of the resolution as well as the express statement of the intent of the Board hereinbefore quoted and which was evidently designed to prevent any possibility of a construction of the resolution such as the court is now placing upon it. To my mind this tax is clearly an excise and not a property tax, and I would therefore reverse the decree of the Court of Common Pleas of Westmoreland County.