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SHANKEN v. UPPER MORELAND TOWNSHIP (06/11/64)

June 11, 1964

SHANKEN
v.
UPPER MORELAND TOWNSHIP, APPELLANT.



Appeal, No. 18, Oct. T., 1964, from order of Court of Quarter Sessions of the Peace of Montgomery County, June T., 1963, No. 35, in case of Benjamin R. Shanken et al. v. Township of Upper Moreland. Order affirmed.

COUNSEL

H. Lyle Houpt, Township Solicitor, with him Benjamin R. Townsend, David C. Auten, and Townsend, Elliott & Munson, for township, appellant.

William S. Livengood, Jr., with him Mayor Shanken, and Hankin, Hankin & Shanken, and Livengood, Braucher & Stroup, for appellees.

Before Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (rhodes, P.j., absent).

Author: Woodside

[ 203 Pa. Super. Page 324]

OPINION BY WOODSIDE, J.

This is an appeal from an order of the Court of Quarter Sessions of Montgomery County declaring invalid an ordinance of a Township of the First Class which imposed a tax upon the occupancy of rooms in hotels, motels and similar establishments.

Townships, like other political subdivisions, have only such powers as are conferred upon them by the Constitution and by statute. They have no implied or inherent power to tax. They may not levy, assess, or collect taxes, unless the power to do so is plainly and unmistakably conferred upon them. Price v. Tax Review Board, 409 Pa. 479, 483, 187 A.2d 280 (1963); Hillman Coal & Coke Co. v. Jenner Township, 300 Pa. 108, 112, 150 A. 293 (1930); Arthurs v. Pittsburgh, 185 Pa. Superior Ct. 85, 88, 138 A.2d 200 (1958); 26 P.L.E., Municipal Corporations, § 711.

Prior to 1947, the powers given by the legislature to the Townships of the First Class to levy, assess and collect taxes were specific and limited. By the Act of June 25, 1947, P.L. 1145, known as the "Tax Anything Act," the legislature adopted a new theory of local taxation by conferring upon a "political subdivision the power to levy, assess and collect taxes upon any and all subjects of taxation, except as [specifically] restricted and limited, which the Commonwealth has power to tax but which it does not tax or license." 53 P.S. § 6851B.

[ 203 Pa. Super. Page 325]

The Tax Anything Act has been amended at every regular session of the General Assembly since its enactment. As thus frequently amended, it now contains the following pertinent language: "The duly constituted authorities of the ... townships of the first class, ... may, in their discretion ... levy, assess and collect ... such taxes as they shall determine ... on persons, transactions, occupations, privileges, subjects and personal property within the limits of such political subdivisions, except that such local authorities shall not have authority by virtue of this act (1) to levy, assess and collect ... any tax ... on a privilege, transaction, subject, occupation or personal property which is now or does hereafter become subject to a State tax or license fee; ..." 53 P.S. § 6851A. Under this act no power is given to a municipality to impose a tax upon anything subject to a state tax or license fee, with a few specific exceptions not here relevant.

Relying upon the above provision, Upper Moreland Township enacted an ordinance on July 9, 1963, imposing a hotel occupancy tax in the following language: "An excise tax of two per centum of the rent thereof is hereby imposed upon every occupancy of a room or rooms in a hotel [hotel being defined by sec. 102 to include motel] in the Township, which tax shall be collected by the operator from the occupant and paid over to the Township as herein provided."

Prior thereto, on March 6, 1956, the Commonwealth had enacted The Hotel Occupancy Tax Act (1955 P.L. 1256) which imposed an excise tax for the benefit of the Commonwealth "upon every occupancy of a room or rooms in a hotel in this Commonwealth." By the Act of December 30, 1959, P.L. 2046, this provision was made a part of the Selective Sales and Use Tax Act, which was ...


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