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June 28, 1954


Appeal, No. 120, Jan. T., 1954, from decree of Court of Common Pleas No. 2 of Philadelphia County, March T., 1953, No. 2722, in case of Philip Sterling, acting for Philadelphia Bar Association etc., v. City of Philadelphia et al. Decree reversed; reargument refused August 16, 1954. Bill in equity to restrain enforcement of mercantile license tax ordinance as to lawyers. Before LEWIS, P.J. and CARROLL, J. Adjudication filed finding ordinance unenforceable as to lawyers, opinion by CARROLL, J. Defendants appealed.


Abraham L. Freedman, City Solicitor, with him Richard D. Solo and Murray L. Schwartz, Assistant City Solicitors, Abraham L. Wernick, Deputy City Solicitor, and Jerome J. Shestack, First Deputy City Solicitor, for appellants.

William Clarke Mason, with him Sydney S. Stern, for appellees.

Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.

Author: Stern

[ 378 Pa. Page 540]


There are two questions involved in this appeal: (1) Does the ordinance of the City of Philadelphia of December 9, 1952, imposing a so-called mercantile license tax, include in its coverage members of the bar engaged in the practice of their profession? (2) If so, is the ordinance unconstitutional as an interference with the judicial branch of government?

The ordinance in question is entitled, "AN ORDINANCE To provide revenue by imposing a mercantile license tax on persons engaging in certain businesses, including manufacturing, professions, occupations, trades, vocations, and commercial activities in the City of Philadelphia;..." "Business" is defined as meaning "the carrying on or exercising for gain or profit within the City of Philadelphia of any trade, business, profession, vocation,... or of any manufacturing, commercial or financial activity, service or business,...." It is provided that "... every person desiring to engage in or to continue to engage in any business shall,... in each license year,... procure a mercantile license for each of his places of business in the City, from the Department of Licenses and Inspections which shall issue the same upon payment of a fee of three (3) dollars for each place of business in the City." The ordinance, after establishing the rates of the annual tax to be paid by wholesale dealers, dealers who sell both at wholesale and retail, and manufacturers, fixes three (3) mills on each dollar of the annual gross volume of business transacted as the rate to be paid by "all other persons engaged in business." For failure or refusal to procure a mercantile license required under the ordinance there is provided a penalty of fine and of imprisonment in case of default in the payment of the fine.

[ 378 Pa. Page 541]

Plaintiff's complaint sought an injunction against the City and its officials from enforcing against attorneys at law the license and tax provisions of the ordinance. The court below granted the injunction and defendant appeals from its decree.

1. Did the ordinance intend to include in its coverage members of the bar engaged in the practice of their profession?

There are words in the title*fn1 and in the definitions section of the ordinance that compel an affirmative answer to that question. The title states that the tax is imposed on "certain businesses" but including, inter alia, professions, occupations and vocations. Then, in Section 1, "business" is defined as the carrying on of "any... profession, vocation,... service or business." It would seem plain, therefore, that the intention of the ordinance was to impose the tax, notwithstanding its designation as a "mercantile license tax," on professions, occupations and vocations as well as on mercantile establishments, an intention given strong emphasis by the fact that "business" is defined as carrying on or exercising for gain or profit of any " service or business." It is a familiar canon of construction of statutes and ordinances, as indeed of contracts, wills, and other written instruments, that presumably every word, sentence or provision therein is intended for some purpose, and accordingly must be given effect.

It is argued that a so-called "mercantile license tax," merely because of such designation, can be applied only to those engaged in trade or business, but we have frequently held that the name given to a tax

[ 378 Pa. Page 542]

    is far from conclusive in determining its real nature. It is the substance of the law or ordinance, rather than the designation or name given it by the legislative body, that is controlling in that regard: Flynn v. Horst, 356 Pa. 20, 27, 29, 51 A.2d 54, 58; Armour & Co. v. Pittsburgh, 363 Pa. 109, 112, 69 A.2d 405, 407; National Biscuit Co. v. Philadelphia, 374 Pa. 604, 615, 98 A.2d 182, 187, 188.A legislative body may, in a statute or ordinance, furnish its own definitions of words and phrases used therein in order to guide and direct judicial determination of the intendments of the legislation although such definitions may be different from ordinary usage; it may create its own dictionary to be applied to the particular law or ordinance in question. It was entirely competent, therefore, for the ordinance to include professions in its definition of "businesses" in order to explain the coverage it intended by its use of the latter term. In National Biscuit Co. v. Philadelphia, 374 Pa. 604, 609, 98 A.2d 182, 185, it was stated, concerning this same ordinance, that while, ordinarily, mercantile license taxes have been imposed only upon merchants, there was neither law nor reason why a tax, even though so designated, could not be extended to persons otherwise engaged, and it was pointed out that the Acts of May 23, 1949, P.L. 1669, and May 10, 1951, P.L. 265, were in fact almost as broad as this ordinance and defined the word "business" in nearly the same language; also that the Pittsburgh Mercantile License Tax which was the subject of discussion in Federal Drug Co. v. Pittsburgh, 358 Pa. 454, 57 A.2d 849, imposed liability upon persons engaged in many non-mercantile operations. In fact, the appellants in the National Biscuit Co. case included insurance agents and brokers, and we held that they were liable for the tax under this ordinance, Nor may it be amiss to add that, in a

[ 378 Pa. Page 543]

    broader sense, a professional man "sells"*fn2 his services for a financial consideration just as a business man sells his merchandise, although his activities are attended, in the case of the lawyer or doctor, with a certain measure of idealistic and altruistic motivations which do not necessarily pertain to the market place.

Plaintiff suggests that what the ordinance contemplated in regard to those engaged in professional activities was that the tax should apply, not to income derived from services rendered, but merely to receipts from sales transactions, if any, incidental to the practice of their professions, -- in other words, not to their professional but to their non-professional activities. In support of that proposition plaintiff points to such cases as Commonwealth v. Lutz, 284 Pa. 184, 130 A. 410; Biser's Appeal, 317 Pa. 190, 176 A. 200; Commonwealth v. Dinnien, 320 Pa. 257, 182 A. 542; Commonwealth v. Pennsylvania Heat & Power Co., 333 Pa. 46, 3 A.2d 412; Commonwealth v. Miller, 337 Pa. 246, 11 A.2d 141, in all of which the tax involved was held to apply to sales of merchandise -- fixtures and supplies by a plumber, medicines by a pharmacist, caskets and shrouds by an undertaker, oil burners by a heat and power company, and eyeglasses by an optometrist -- but not to apply to the skilled or professional services rendered in connection with those sales. In all those cases, however, the tax was levied under statutes which expressly imposed it only on vendors of, or dealers in, goods, wares and merchandise, and not, as in the present case, also upon those engaged in professions, occupations and vocations or rendering service. The cases thus relied upon by plaintiff are, therefore, not at all in point.

[ 378 Pa. Page 544]

We are, then, clearly of opinion that the ordinance here in question was intended to include those engaged in professions -- and therefore lawyers -- in its coverage.

2. This brings us to the second question: Is the ordinance, when so construed, unconstitutional as an infringement upon the independence of the judicial branch of government?

Two propositions bearing upon that question are self-evident. One is that the privilege of practicing law carries with it no exemption from the duties of citizenship, including the sharing with all others the expense of government, national, state and municipal; lawyers pay federal income taxes, state personal property taxes, municipal real estate and net profits taxes the same as all other persons. The other proposition is that lawyers are officers of the courts and it is solely from the courts that they derive the authority to practice their profession; the legislative branch of government, whether state or municipal, can neither grant nor revoke such authority, nor prescribe or in any manner interfere with their functions and activities, nor regulate the conduct of their practice. If, therefore, the present ordinance involved any encroachment upon the judiciary it would represent but a vain attempt on the part of the municipal authorities to exercise a power which they do not possess; (Hoopes v. Bradshaw, 231 Pa. 435, 487, 80 A. 1098, 1099.). The question, therefore, is whether the tax which it imposes does constitute any such encroachment upon, or interference with the judiciary thereby violating the constitutional separation of power among the three branches of government. In deciding that question we must be careful not to be misled merely by inept terminology. Thus the ordinance requires the payment of a fee of $3.00 for procuring a "mercantile

[ 378 Pa. Page 545]

    license." Taken literally, the word "license" would connote the granting of a permission, and, since a mercantile license tax is on the privilege of doing business,*fn3 it might offhand appear that the obtaining of a license is made a prerequisite or condition for the right of the taxpayer -- in this case the lawyer -- to continue in the practice of his business or profession. But nothing could be further from the truth, for it is too clear for discussion, and indeed we have definitely held, that the charge of $3.00 is not in fact a "license fee" but a registration charge, -- a mere procedural device to establish the identity of those who, by reason of their occupations, are subject to the tax, the $3.00 being merely to cover the clerical expense of the registration and issuance of the license certificate: Armour & Co. v. Pittsburgh, 363 Pa. 109, 112, 113, 69 A.2d 405, 4079, National Biscuit Co. v. Philadelphia, 374 Pa. 604, 616, 618 (footnote 4), 98 A.2d 182, 188, 189. It need scarcely be said that an attorney at law requires no license, other than from the courts, to practice his profession; indeed merchants also, for that matter, have the legal right to conduct their business operations without license by governmental authority save only in the case of certain special businesses which, because of their nature, are subject to the police power, as, for example, the sale of liquor. But the important and indeed the controlling point here is that a lawyer's right to engage in, or continue to engage in, the practice of his profession is not conditioned upon his procuring the so-called license or

[ 378 Pa. Page 546]

    privilege, or occupation taxes has been consistently denied by courts and text writers alike, as shown by the authorities collated in the annotation entitled "Validity of municipal license, privilege, or occupation tax on attorneys" in 16 A.L.R. 2d 1228 et seq. See also 18 L.R.A. 409; 5 Am. Jur. pp. 268, 269; § 12; McQuillin, Municipal Corporations, (3rd ed.) volume 9, p. 293, § 26.130. In the United States Supreme Court as early as the case of Royall v. Virginia, 116 U.S. 572 (1886), a license tax on a lawyer was held to be an occupation tax for which the so-called license was "merely a receipt and not an authority," -- nothing more than a mere form of imposing a tax for revenue and not an exaction for purposes of regulation. The court there said: "In the case of Humphreys v. The City of Norfolk, supra, the Supreme Court of Appeals of Virginia, referring to the previous case of Ould v. City of Richmond, said: 'The objection was made in that case that a power to license involves in its exercise the power to prohibit without such license; and that such power vested in a municipal corporation is incompatible with the rights of attorneys conferred by their general license to practice in any and every part of the State. This objection did not prevail. Judge ANDERSON, upon this point, speaking for the entire court, conceded that the city authorities could not prohibit attorneys at law, already licensed, from practicing their profession within the city limits. The exercise of the vocation was, however, a civil right and privilege, to which are attached valuable immunities and pecuniary advantages, and is a fair subject of taxation by the State and by municipal corporations.... 'The principles settled by that case,' continued the court, 'are decisive of this. In neither case is the attempt made to prohibit the exercise of the business or vocation. The license required by the corporation

[ 378 Pa. Page 548]

    is merely a mode of assessing the tax; if it be reasonable and just, it matters but little by what name it is called.'"

Since the right of the municipality to impose this tax on lawyers is challenged on the ground that it is an invalid interference with their activities as officers of the courts, the charge is somewhat analogous to that long made against the right of the federal government to tax the salaries of state officials. The view originally prevailed that such tax was an unconstitutional encroachment upon the independence of the state government and an interference with its capacity to perform its functions. But in Graves v. New York ex rel. O'Keefe, 306 U.S. 466, the United States Supreme Court, taking a more practical view of the problem, reversed the earlier decisions so holding.*fn5 It is argued that if the municipality be conceded the power to tax members of the bar on the privilege of conducting their professional activities, so great a tax might be imposed as to make it difficult, if not impossible, for them to continue in practice. But, apart from the fact that a similar argument would be equally applicable to all other tax impositions, the famour cliche of Chief Justice MARSHALL in McCulloch v. ...

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