Titusville v. Gahan

Opinion bt Rice, P. J., If such a charge as that in question here is in reality an annual tax, and is imposed for revenue only, the municipality must show some express legislative authority to impose it. The naming of certain occupations in a statue delegating power to levy and collect, for general revenue purposes, an annual license tax on them precludes levying a tax for those purposes upon those not named, the rule being expressio unius est exclusio alterius. It is not claimed by appellant’s counsel (and, if the claim were made, it could not be sustained) that either thé act of 1874, or the act of 1887, or the act of 1889 conferred upon cities of the third class the power to levy and collect a license tax on theaters or billposters exclusively for general revenue purposes. But he does claim, and the appellee’s counsel concede, that the city had authority to license and collect license taxes, so called, from theaters and opera houses under the police power expressly delegated to it, and from billposters under the police power conferred by the general welfare clause of the city’s charter. In view of these concessions and of the adequate review of the pertinent legislation contained in the opinion filed by the learned judge below, we need not discuss either of these propositions further. But the appellant’s counsel contends further that if the authority to impose a charge exists, it matters not [622] what the nominal or expressed purpose of its exercise may be termed by the municipal authorities, the ordinance and charge will be enforced and sustained. In support of this proposition he cites Chester v. Philadelphia,. Reading & Pottsville Telegraph Co., 148 Pa. 120; Johnson v. Philadelphia, 60 Pa. 445; Oil City v. Oil City Trust Co., 151 Pa. 454; Pittsburg Railways Co. v. Pittsburg, 211 Pa. 479; Braddock Boro. v. Allegheny County Telephone Co., 25 Pa. Superior Ct. 544. The learned judge below has reviewed these cases in the opinion filed by him and has shown very satisfactorily that they do not go as far as is claimed. Johnson v. Philadelphia goes as far as any in tlnit direction, and there the doctrine is stated as follows: “ Certainly, if a municipal regulation is adopted, which would be lawful if intended for one purpose, and unlawful if for another, the presumption is that the purpose was lawful, unless .the contrary clearly appear. ” To the same effect are Limsdowne Borough v. Springfield Water Co., 16 Pa. Superior Ct. 490; Edgewood Borough v. Scott, 29 Pa. Superior Ct. 156; Kittanuing Boro. v. Kittanning Consolidated Natural Gas Co., 26 Pa. Superior Ct. 355. Applying that rule, the omission to state in the ordinance the purpose for which the license fee or tax was imposed or the police regulation or supervision in aid of which it was intended might not be a fatal objection. But it would be an unwarranted extension of the rule to hold that it is a matter of indifference what the expressed purpose of the ordinance is. If, with respect to a particular business or occupation, the city has merely the police power, an ordinance adopted ostensibly as a police measure, but used as a mere subterfuge for the purpose of raising revenue, and that onty, will not be upheld if such abuse of the city’s power be shown: Kittanning Borough v. Kittanning Consolidated Natural Gas Company, 26 Pa. Superior Ct. 355. How, then, can it be presumed that the imposition of a license tax was intended as a police regulation, or in aid of police supervision, when the ordinance was not adopted ostensibly as a police measure, but it appears on the face thereof that it was adopted exclusively for revenue purposes? There is in such a case no room for presumption. Looking at this ordinance we find that its title is, “ An ordinance to provide for the levy and collection, for general revenue purposes, of annual license taxes in the city of Titus623 ville. ” There is nothing in the body of the ordinance to indicate that it was adopted for any other purpose or in the exercise of any other power than the power of taxation, or to raise a presumption that the amount of the fee or tax was fixed with any regard to those matters that it was the duty of the corporate authorities to consider in the imposition of such a charge in the exercise of the police power. By the acts creating and governing cities of the third class it is provided that “ no bill shall be passed containing more than one subject, which shall be clearly expressed in its title. ” Therefore, the title is part of .an ordinance, and a very important part in its construction: Beechwood Ave., 194 Pa. 86. It makes plain that the purpose of the ordinance in question was revenue, and, there being nothing in the body of the ordinance which notwithstanding the title would warrant a different construction, it must be construed as revenue and not a police measure. It has been so decided, or at least assumed, in former cases in which it was involved: Brennan v. Titusville, 153 U. S. 289; Commonwealth v. Clark, 195 Pa. 634; affirming 10 Pa. Superior Ct. 507. There being no authority in law for the levy and collection of a license tax upon theaters and billposters for general revenue purposes, the defendant was not bound to appeal from the assessment, but could interpose the objection in defense to the action brought to recover the tax or fee: Reading v. Bitting, 167 Pa. 21. There are numerous other cases wherein the question of the power of the municipality to impose such a charge for revenue purposes has been raised in that way. They are plainly distinguishable from the cases cited by the appellant’s counsel in support of the proposition that if the power of taxation exists the remedy for the correction of errors in the exercise of that power is by appeal. The judgment is affirmed.