Opinion by
The same question that presented itself and was decided in the case of
City Stores Company v. Philadelphia,
North American Rayon Corporation conveyed to Jacquаrd Knitting Machines Corporation on June 30, 1954, a certain tract of land situate at G and Cayuga Streets, Philadelphia, for a consideration of $455,000. The deed was executed, acknowledged, delivered and accepted in New York City, and on the same day was recorded in Philadelphia.
Congoleum-Nairn, Inc., conveyed to George Friеd-land on April 30, 1954, a certain parcel of land situate on Erie Avenue between Second and Front Streets, Philadelphia, for a consideration of $1,425,000. The deed was еxecuted, acknowledged, delivered and accepted in New York City, and was recorded in Philadelphia on May 3, 1954.
When these deeds were presented to the Cоmmissioner of Records he refused to record them unless stamps were affixed evidencing the payment of the tax required by the ordinance of December 9, 1952. Thereupon the grantors complied under protest, the stamps with respect to the Congoleum-Nairn deed amounting to $14,250. and with respect to the North American Rayon Corpоration deed to $4,550. In both cases petitions for refunds of the taxes thus paid were filed with the Revenue Commissioner, who refused the applications, as did also the Tax Rеview Board • on appeal. Further appeals were then taken to the Court of Common Pleas No. 6 of Philadelphia County, which held that the refunds should have been аllowed and reversed *431 the action of the Tax Review Board. From its decision the City has taken the present appeals.
The title of the 1937 ordinance was “To provide revenue by imposing a stamp tax upon certain transactions relating to documents and obligations: . . .” It provided thát “Every person who makes, executes,, issues or delivers any document . . .” should be subject to the tax. In the City Stores Company case a deed for the conveyance of certain property located in the City of Philadelphia wаs made, executed, issued, delivered and accepted, not in Philadelphia, but in Delaware County, and accordingly we held that these acts constituted the “transaсtion” upon which the ordinance imposed the tax. Since the so-called Sterling Act of August 5, 1932, P. L. 45, gave the City authority only to levy taxes “on persons, transactions, occupations, privileges, subjects and personal property within the limits of such city,” the transaction could not be made taxable under the ordinance.
On December 9, 1952, a new ordinanсe was enacted by the City. It was entitled: “To provide revenue by imposing a tax on the transfer of real property; . . . .” It provided, as did the former ordinance, that “Every рerson who makes, executes, issues or delivers any document, . . .” should be subject to the tax, which it increased from the former rate of 5 cents per hundred to 1% of the valuе of the property.
We fail to find any change between the two ordinances of such significance as to warrant a conclusion that the later ordinance сlosed, or was intended to close, the loophole which existed in the former ordinance according to the decision in the
City Stores Company
case. That decision had not been rendered when the ordinance of December 9, 1952, was enacted. It is argued that such an intention is to be found in the difference between the titles, the one imposing thе tax
*432
on
“certain transactions”
and the other on “the
transfer of real
property.” It is true, as stated in the
City Stores Company
case (p. 487, A. p. 667), that the title is always a part of a statute or ordinance and, as such, may be considered in construing the enactment,
*
but it is in no sense conclusivе, particularly when there is no ambiguity in the body of the statute or ordinance itself:
State Highway Route No. 72,
What is apparently the principal contention of the City is that the tax imposed by the 1952 ordinance should be construed as being a tax on the privilege of transferring real prоperty, but even if such an inference could reasonably be drawn the City’s position would not be strengthened thereby since every owner *433 of real estate in Philadelphia has the abstract privilege of conveying his proрerty but the ordinance imposes the tax only on the one who actually makes such a conveyance, that is, on the exercise of the privilege. And since, in each of the present cases, the privilege was exercised outside of the City, and since the Sterling Act provides that the City may impose taxes only on “. . . privileges . . . within the limits of the City” it is clear that these transactions could not be made subject to the tax in question.
One of the sections of the 1952 ordinance provided that no document should be recorded in the offiсe of the Recorder of Deeds unless the required stamp should have been affixed thereto as provided in the ordinance, but this section, as the court below rightly detеrmined, was merely an enforcement provision and added nothing to the scope of the tax; it did not make the recording of the deed itself a taxable transactiоn.
Under date of December 7, 1954, after the publication of the decision in the
City Stores Company
case, the City Council passed an ordinance amending the 1952 ordinance by providing that the term “deliver” should include the presentation for recording within the City of Philadelphia of any document whereby title to or any interest in real property located within the City was transferred or conveyed, regardless of where the document was executed, delivered or accepted, thereby bringing the transaction of recording the deed within the scope of the taxing provision and apparently remedying the situation which the ordinance of 1952 had failed to reach. This 1954 ordinance contained a “Whereas” clause which stated that “By ordinance approved December 9, 1952, . . . the Council imposed a tax on the transfer of real property located, within the City of Philadelphia regardless of where the delivery or acceptance of the document of transfer is
*434
made”, and another “Whereas” clause thаt “The council desires to clarify the application of this tax to transactions relating to the transfer or conveyance of real property located within the City of Philadelphia, where settlements on such transactions are made outside of the City of Philadelphia.” These declarations do not purport to impоse the tax retroactively on transactions prior to the enactment of this ordinance, nor can they be given effect as an attempted interpretation of the intent of the 1952 ordinance, since the City Council could not, under cover of giving a construction to a former ordinance, affect intervening rights:
Orders and judgments affirmed.
Notes
The Statutory Construction Act of May 28, 1937, P. L. 1019, Section 54, so provides.