Dissenting Opinion by
President Judge Bowman:I dissent. As the majority recognizes, our Supreme Court in Wanamaker v. Philadelphia School District, 441 Pa. 567, 274 A. 2d 524 (1971), declared the tax in question constitutional against an attack on grounds of want of uniformity. In doing so, our Supreme Court characterized the tax as a privilege tax on the use of real estate. The majority of this Court now declare that the formula prescribed “to measure” the tax is unconstitutional for want of uniformity as said measure is applied to the contesting taxpayer.
The enabling ordinance of the City Council of Philadelphia (Bill No. 1786, amending Section 19-800 of The Philadelphia Code adopted June 4, 1970), in pertinent part, provides as follows:
“(2) Imposition of the Tax. The Board of Education of the School District of Philadelphia is authorized to impose a tax for general public school purposes on the use or occupancy of real estate within the School District of Philadelphia during the tax year beginning July 1, 1970, for the purpose of carrying on any business, trade, occupation, profession, vocation, or any other commercial or industrial activity. This tax is imposed on the user or occupier of real estate.
“(4) Rate of Tax. The tax authorized by this section shall be measured by the assessed value of the real estate at a rate not to exceed $1.25 per $100 of the assessed value of real estate as most recently returned by the Board of Revision of Taxes. The tax to be paid by the user or occupier shall be computed as follows:
*565Square feet occupied or used x Assessed value x Bate of Taxation x Days of actual use or occupancy
Total square feet availaable for use or occupancy on the real estate”
360
All property within the County of Philadelphia made taxable by law is to be valued and assessed at actual value. In determining actual value, each parcel shall be separately assessed as to ground and building and other improvements. The supporting record of assessment, in addition to showing in detail the description, character and size of the land and building or other improvements, shall set forth “the basis upon which such assessment was made.” Act of June 27,1939, P. L. 1199, as amended, 72 P.S. §5341.1 et seq.
As the enabling ordinance discloses, and as the Supreme Court held in Wanamalcer, the tax is a privilege tax upon the use of real estate. The rate of tax is not questioned in terms of uniformity, and if the building assessment is constitutionally uniform — likewise not here contested — then both the rate and measure of the tax must necessarily be uniform.
But the majority find a want of uniformity in the measure of the tax predicated upon testimony of an assessor that in determining the assessed value of the building in question, there was a “breakout” into “two building rates,” one for the portion used as a parking area, and the other for the remainder of the building used for office space. I view this testimony as totally irrelevant, not to mention incomprehensible. If I understand its import and if it is relevant, then, indeed, to search out and afford controlling significance to the host of factors that are considered in determining assessed value just as surely produces a total want of mu*566formity of this tax as the majority assigns to the measure of the tax, rather than the tax itself.
Traditionally sanctioned methods of arriving at actual value for tax assessment purposes, such as use of capitalization of income less operation costs, particularly as utilized for multi-use or multi-purpose commercial property, could produce a host of “breakouts” into two or more “building rates,” the most common example of which would be commercial property utilized on the lower floor for retail purposes with the remainder devoted to other purposes. A “breakout” of rental income, if I understand the majority position, would produce an unconstitutional measure of the tax as applied to those who pay less rent in a particular building.
In my view, the measure of the tax — the assessed value of the building — is just that and cannot be any one or more of the factors or elements properly considered by the assessing authorities in determining actual value from which assessed value is derived.
I would reverse the lower court and find the tax and its measure to be uniform as applied to the taxpayer in this case.
Judge Mencer joins in this dissent.