Appeal from order of Commonwealth Court, No. 830, C.D. 1972, dismissing decree of Court of Common Pleas, Trial Division, of Philadelphia, June T., 1972, No. 3604, in case of Allegheny Airlines, Inc. et al. v. City of Philadelphia.
Bernard J. Smolens, with him Ralph S. Snyder, Schnader, Harrison, Segal & Lewis, Cleary, Gottlieb, Steen & Hamilton, Pepper, Hamilton & Scheetz, and Dechert, Price & Rhoads, for appellants.
Pace Reich, Deputy City Solicitor, and John M. McNally, Jr., First Deputy City Solicitor, with them Martin Weinberg, City Solicitor, for appellee.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Justice Roberts. Mr. Justice Nix concurs in the result.
Appellants, Allegheny Airlines et al., instituted a suit in equity against the City of Philadelphia in the Philadelphia Court of Common Pleas attacking the validity of Bill No. 207, an ordinance amending Section 18-200 of the Philadelphia Code, enacted May 31, 1972. In this suit appellants sought a temporary injunction restraining enforcement of this ordinance. In pertinent part Bill No. 207 established:
"(a) a head tax of $2.00 upon some (but not all) passengers arriving at or departing from appellee's (the City's) airports; and
"(b) a duty upon appellants to collect the tax and, apart from the amount actually collected, to pay to appellee the amount 'that should have been collected.'"
On July 21, 1972, the court of common pleas entered a decree sustaining the validity of that portion of Bill No. 207 imposing a departure tax upon passengers at Philadelphia airports, but declaring unconstitutional as an impermissible burden on interstate commerce that portion of the Bill imposing an arrival tax on all passengers. Subsequently, on August 3, 1972, the City of Philadelphia enacted Bill No. 287 amending Section 18-204 of the Philadelphia Code. So far as material to this dispute, Bill No. 287:
"(a) imposed upon some (but not all) passengers departing from Philadelphia airports a head tax of $3.00; excluded from the tax are military personnel and continuous flight passengers who remain in Philadelphia not more than 6 hours;
"(b) imposed upon appellants the duty to collect the tax and, apart from the amounts actually collected, to pay to Philadelphia the amount 'that should have been collected';
"(c) required that the tax be added to the price of the ticket and collected at the same time as ...