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BREITINGER v. PHILADELPHIA ET AL. (01/03/50)

January 3, 1950

BREITINGER
v.
PHILADELPHIA ET AL., APPELLANTS



Appeal, No. 188, Jan. T., 1949, from decree of Court of Common Pleas No. 6 of Philadelphia County, Sept. T., 1948, No. 1102, in case of J. Russell Breitinger v. City of Philadelphia et al. Decree affirmed.

COUNSEL

Abraham Wernick, Assistant City Solicitor, with him Frank F. Truscott, City Solicitor, for appellants.

Abraham L. Shapiro, for appellee.

Robert Dechert, with him Francis L. Van Dusen and Barnes, Dechert, Price & Myers, for Corporate Fiduciaries Association of Philadelphia, under Rule 61.

Before Maxey, C.j., Drew, Linn, Stern, Patterson, Stearne and Jones, JJ.

Author: Linn

[ 363 Pa. Page 513]

OPINION BY MR. JUSTICE LINN

The City appeals from an order restraining the collection of taxes claimed under an ordinance of December 13, 1939, as amended.*fn1

[ 363 Pa. Page 514]

The plaintiff is a resident of the city engaged in the practice of law. His contention is that from year to year, as required by the ordinance, he filed returns and paid all taxes due; that the City has changed its prior understanding of the meaning of the ordinance and has demanded additional taxes for past years and on an increased tax base for the current year; that the ordinance does not authorize the collection of additional tax and that the injunction was proper.

The City contends (in the words of its brief) the plaintiff is taxable on "net profits realized... from the purchase, sale, management and supervision of real estate [and] mortgages,..." i.e., that plaintiff so dealt with his real estate and mortgages as to bring himself within the tax on net profits of "businesses, professions or other activities."

Two fundamental principles should be kept in mind in considering the ordinance and its administration. The first measured the City's power to tax; the second prescribes strict construction. We said, in Hillman Coal & Coke Co. v. Jenner Twp. et al., 300 Pa. 108, 112, 150 A. 293 (1930), "'It is a principle universally declared and admitted that municipal corporations can levy no

[ 363 Pa. Page 515]

    taxes, general or special, upon inhabitants, or their property, unless the power be plainly and unmistakably conferred': 4 Dillon on Municipal Corp. 2398. And the grant of such right is to be strictly construed, and not extended by implication: Com. v. P.R.T. Co., 287 Pa. 190 [134 A. 455 (1926)]." See Rieck-McJunkin Dairy Company Mercantile Assessment Case, 156 Pa. Superior Ct. 9, 12, 39 A.2d 259 (1944). The ordinance of 1939 was passed pursuant to power conferred by the Act of August 5, 1932, section 1, special session P.L. 45, 53 PS 4613, sometimes called the Sterling Act. It authorizes City Council "to levy, assess and collect... taxes on persons, transactions, occupations, privileges, subjects and personal property, within the limits of such city... except that ...


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