Appeal, No. 317, Jan. T., 1953, from decree of Court of Common Pleas No. 3 of Philadelphia County, June T., 1951, No. 2165, in case of City Stores Company, Joseph Seltzer and Land Title Bank & Trust Company v. City of Philadelphia. Decree affirmed.
Abraham Wernick, Deputy City Solicitor, with him Abraham L. Freedman, City Solicitor, for appellant.
Stanley Folz, with him Robert John Brecker, Knox Henderson and Folz, Bard, Kamsler, Goodis & Greenfield, for appellees.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. CHIEF JUSTICE HORACE STERN
Plaintiff, City Stores Company, successfully maintained a bill in equity against defendant, the City of Philadelphia, to restrain it from assessing against plaintiff certain documentary stamp taxes. Defendant appeals from the decree of the court below granting the injunction prayed for.
An ordinance of the City of September 7, 1937,*fn1 entitled "To provide revenue by imposing a stamp tax upon certain transactions relating to documents and obligations;..." provided that "Every person who makes, executes, issues, or delivers any document...
shall be subject to pay for, and in respect to such document, or for and in respect of the vellum, parchment or paper upon which such document is written or printed, a tax at the rate of five (5) cents for each one hundred (100) dollars, or fraction thereof, of the value represented by such document, payable at the time of the making, execution, issuance or delivery of such document." It further provided that "It shall be unlawful for any person to: 1. Make, execute, issue, deliver, or accept, or cause to be made, executed, issued, delivered, or accepted, any document without the full amount of tax thereon being duly paid,...". Any person violating any of the provisions of the ordinance was to be liable to a penalty of twice the amount of the tax, and, upon default in the payment thereof, to imprisonment.
Lit Brothers, a corporation which was subsequently merged into the plaintiff company, was the owner of the Widener Building on the northwest corner of Juniper & Chestnut Streets in Philadelphia. By written contract dated November 15, 1950, Lit Brothers agreed to sell and convey this property to one Lawrence D. Mayer, a resident of New York City, for the price of $4,000,000, payable $100,000 upon execution of the agreement, $100,000 within seven days thereafter, (which payments were made in New York at the times specified) $800,000 at the time of settlement, and the balance of $3,000,000 by a purchase money mortgage to be created at the settlement, which was fixed for January 30, 1951. This agreement was signed by the officers of Lit Brothers in Philadelphia and then by the purchaser in New York, and was delivered there to a representative of the real estate agent for Lit Brothers.
The purchaser, through his attorney, applied to the Land Title Bank and Trust Company for insurance covering the title ...