Appeal, No. 86, Jan. T., 1963, from decree of Court of Common Pleas of Lehigh County, Jan. T., 1962, No. 12, in case of Rollin E. Gaugler, Dale A. Ziegler, Lee E. Fenstermaker et al. v. City of Allentown. Decree reversed.
Bernard B. Naef, City Solicitor, for City of Allentown, appellant.
George J. Joseph, with him James G. Kellar, and Joseph and Kellar, for appellees.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.
OPINION BY MR. JUSTICE EAGEN
On January 23, 1962, the City of Allentown adopted an ordinance*fn1 imposing a tax of $10 per annum on each individual (residents and nonresidents alike) engaged in an occupation within the corporate limits of the city.
This appeal is from a final decree in the court below, sitting in equity, ruling that the ordinance was invalid and unenforceable as to nonresidents.
The ordinance provides in Section 2: "The City of Allentown hereby levies and imposes on each individual engaged in an occupation during the fiscal year of 1962 within the corporate limits of the City of Allentown an occupation Privilege Tax. This tax is in addition to all other taxes of any kind or nature heretofore levied by the City of Allentown."
In Danyluk v. Johnstown, 406 Pa. 427, 178 A.2d 609 (1962), this Court ruled, inter alia, that a municipality has no legal authority to levy a capitation or poll tax against nonresidents and that in determining the validity of an ordinance imposing such a tax, the substance of the tax measure determines its true nature, rather than the label placed upon it. See also, Guernsey v. Midland Borough, 197 Pa. Superior Ct. 394, 178 A.2d 782 (1962); Dawson v. Kentucky Distilleries Co., 255 U.S. 288, and National Biscuit Co. v. Philadelphia, 374 Pa. 604, 98 A.2d 182 (1953).
The principal questions for decision herein are, therefore, two, namely: (1) Does the ordinance under discussion impose a true Occupation Privilege Tax as distinguished from a tax classified as a head or capitation or poll levy? (2) Did the municipality, the City of Allentown, have the authority to impose a true Occupation Privilege Tax under the provisions of the Act
of 1947, and its amendments, supra? Both questions must be ...