
    Pittsburgh’s Appeal. [Phila. Co. v. Pittsburgh et al.]
    The Act of March 7,1846, authorizing the councils of the city of Pittsburgh to levy and assess a tax on all goods, wares and merchandise and upon all articles of trade and commerce sold in the city, does not authorize the imposition of a tax upon the gross receipts of fuel gas companies, furnishing gas within the limits of the city.
    
      Query, whether said Act authorizes the imposition of a tax upon gas sold to customers in the city.
    Oct. 22, 1888.
    Appeal, No. 231, Oct. T. 1887, from C. P. No. 1, of Allegheny Co., to review a decree granting a preliminary injunction on a bill in equity by the Philadelphia Oo. against the city of Pittsburgh and Thomas H. Phelps, collector of delinquent taxes, to restrain the collection of an alleged illegal tax, at March T. 1887, No. 33. Clark, J., absent.
    
      The bill averred substantially as follows:
    Complainant is a corporation under the laws of Pennsylvania, having all the rights under “An Act to incorporate the Pennsylvania Co.,” approved April Y, 18Y0. It is an owner of large tracts of gas territory in Allegheny, Butler and Westmoreland counties, and is engaged in the business of producing natural gas for consumption. Its gas territories are connected with the city of Pittsburgh, and with consumers of natural gas therein and in the neighborhood thereof, by lines of pipe, through which said gas is carried from the place of production to the place of consumption. Many pipes are laid through the streets of Pittsburgh, with the consent of the city; large quantities of gas are furnished to consumers in said city for manufacturing and household purposes, and revenue results to complainant from the sale of natural gas thus produced and transported. Councils of Pittsburgh have levied a tax for the years 1885 and 1886, upon the gross receipts of the company, to the extent of 10 mills on each dollar of said gross receipts. The words of the ordinance levying said tax are, “ upon the gross receipts of express companies, electric light, conduit, gas fuel, telegraph and telephone companies, 10 mills upon each dollar of said receipts.” The defendant, Thomas H. Phelps, collector of delinquent taxes in Pittsburgh, threatens to issue a warrant and levy upon the property of the company to compel payment of said taxes for 1885 and 1886, together with a commission of $635.00, making in all the sum of $13,335.00, and, unless restrained by process of court, will carry out his threat. The company is advised and believes, and charges, said taxes, threatened to be collected, were levied by councils without authority of law; the city is not authorized to levy tax upon companies transporting natural gas. If said city has any authority to levy tax upon the gross receipts, it can only be under the power given to it to levy taxes “ upon goods, wares, and merchandise,” and upon “ articles of trade and commerce sold in said city.” By the terms of the ordinances of 1885 and 1886, wherein and whereby the gross receipts of the company are sought to be taxed to the extent of 10 mills upon the dollar, the tax levied upon goods, wares and merchandise, and upon articles of trade and commerce sold in said city, generally is at the rate of one mill upon the dollar, and no more. The company is advised and believes that if said city has any power to levy a tax upon the gross receipts, such tax cannot legally exceed the sum of one mill upon the dollar.
    The answer denied the lack of authority to levy the tax. It also denied the last two averments of the bill and admitted the others.
    The case was heard on bill and answer. The opinion of the court below was as follows, by Stowe, P. J.:
    “ It is a principle universally declared and admitted that municipal corporations can levy no taxes, general or special, upon the inhabitants, or their property, unless the power be plainly and unmistakably conferred, and the authority must be clearly and strictly pursued. Dillon on Municipal Corporations, §Y63.
    
      “ Thus, it appears that, to justify this assessment, we must have some authority, emanating from the legislature, which is distinct and reasonably clear. The first Act of Assembly, bearing upon this-contention, is that of March 7, 1846, § 2, which is as follows: ‘ The councils of the city of Pittsburgh are hereby authorized to levy and assess upon all goods, wares and merchandise, and upon all articles of trade and commerce sold in said city, including sales at auction or otherwise, an annual tax, not exceeding five mills on the dollar, for the use o.f said.city, to be levied and collected from the venders of the said articles in the saíne manner as other taxes are now levied and collected. Provided, however, that the aggregate amount to be levied. on. the sales .of any individual or firm shall not exceed one hundred dollars.’
    “ This was followed by the Act of March 13, 1858, which repealed the above proviso, and thus left the Act of 1846 without limitation as to the amount which might be assessed and levied under said Act, except as to ■ the five mills on the dollar upon the goods, etc., made thereby the subject of city taxation.
    “Then we have the Act of January 4, 1859, by which it is enacted, § 2, that the councils are authorized to levy and collect, for the use of the city, a tax, not exceeding five mills on the dollar, on the actual sales of each and every person or firm engaged in the trade, etc., of retailing liquors ; and also a similar tax, not exceeding five mills on the dollar, on the actual yearly sales of each person or firm engaged in the business of auctioneer.- And the 4th section gave councils the power to assess and collect for the city an annual business tax, not exceeding one mill per dollar, on the average quarterly business of all forwarding and commission merchants, brokers, banks and banking institutions, and on the average quarterly receipts of insurance companies, express companies and telegraph companies, doing business in said city. These Acts defined the subjects of taxation for city purposes, and limited the amount which could be levied upon the several subjects mentioned.
    “ The Act of April 15, 1867, was then passed, which, in the 3d. section, provides that, for the purpose of raising the necessary revenue to meet the interest,' etc., and defray the ordinary city expenses, the councils of said city, in making the annual levy of taxes, be and they are hereby authorized to adjust the rate of taxation upon the different subjects now liable, or that may hereafter be liable to taxation for city purposes, in such manner as they may think just and equitable, without regard to the limitations and restrictions contained in the former Acts of Assembly. The sole effect of this Act, so far as the question here is concerned, is to remove any limitation previously existing in regard to the amount of tax which the councils were' authorized to impose upon the various subjects or matters liable at that time' to taxation by the city. It in no sense extends the subjects' of taxation, and as the gross receipts of ‘gas 'fuel’ companies were not at that time subject to assessment, they are not so now, unless they have been made so by some legal authorItyi The question then arises, who had authority to make other .subjects liable to tax? "Was it the legislature or city councils? ' It iseems to me clear that the right could only come from the legislature, and that the expression ‘ or that may hereafter be liable,’ '.means only such as the legislature might thereafter make liable, because only the legislature had the power to make any subject lia•ble to taxation not previously liable. If this is correct, then, as the '.city cannot point to any Act of Assembly authorizing the imposition of a tax on the gross receipts of gas fuel companies, no such •power exists. I am clearly of opinion that the city had no right to assess the tax of ten mills upon the dollar of the gross receipts of the plaintiff company. We must not, however, be-understood as holding that the.plain tiff may not be assessed under the Act authorizing the taxation of sales of goods, wares', etc.$ for gas actually sold and furnished by it to persons in the city of Pittsburgh. Whether such is the case or not we are not now called upon to determine.
    
      “ All that we now decide is that councils had no right to assess .a tax upon the gross receipts of the plaintiff company, as was done in this case.
    “Let preliminary injunction be issued, as prayed for, upon security being entered,.as provided by law, in the sum of one thousand dollars.”
    .- -. The assignments of error specified the action’ of the court, 1, in granting the preliminary injunction, quoting the decree; and, 2, in refusing to dismiss the bill. ’ ’
    
      Thos. D. Carnahan, with him W. C. Moreland, for appellant.
    Natural gas sold and delivered, being an article of commerce, is •liable to taxation under the Act of March 7, 1846, P. L. 78. Butchers’ meat was held to be merchandise .in Pittsburgh v. Kalchthaler, 114 Pa. 547.
    , The Act of. April 15, 1867, P. L. 1258, leave's the amount of taxation to city councils.
    Article ix. § 1, of the Constitution, relating to equality of taxation, does not execute itself, and therefore does not affect the case. Keystone Bridge Co. v. Pittsburgh, 6 Cent. R. 153.
    
      John Dalzell, with him Wm. Scott and G. B. Gordon, for appellees.
    We adopt the opinion of the court' below and print it as -our argument.
    A municipal corporation has no power to levy taxes unless the power be plainly and unmistakably conferred. Dillon on Mun. Dorp. 763. ■
    Nov. 5, 1888.
   Per Curiam,

Decree affirmed at costs of appellánt.  