property. Instead, the plaintiff-taxpayers seek permanently to exempt themselves from the reach of tax liability. They do not seek temporarily to confine the collection of taxes to a particular physical property as in Colorado. The approach which they do urge would amount to an impermissible circumvention of the Johnson Act.
Since we hold that the Johnson Act is applicable, we must now determine if Pennsylvania provides a "plain, speedy and efficient remedy" which is the exception provided under this statute. A "plain, speedy and efficient remedy" is afforded to the plaintiffs under Pennsylvania law. See Pa. Stat. Ann. tit. 72 §§ 503(a)(4) (1957) and 7341 (1971). One need only file a petition with the Board of Finance and Review from which judicial review lies. Pa. Stat. Ann. tit. 72 § 7342 (1971). Actions, either for refund of a tax paid, or in defense of one for collection, are cognizable in local law courts. Appeal of City of Pittsburgh, 416 Pa. 574, 209 A. 2d 799 (1965); Philadelphia Life Insur. Co. v. Commonwealth, 410 Pa. 571, 190 A. 2d 111 (1963).
Plaintiffs contend that the inhibitory mandate of the anti-injunction provisions of the Johnson Act, supra, is not binding upon this Court because the alleged speedy and efficient remedy asserted by the Commonwealth is illusory at best by reason of the Pennsylvania Supreme Court's decision in Kiker v. City of Philadelphia, 346 Pa. 624, 31 A. 2d 289, cert. denied, 320 U.S. 741, 64 S. Ct. 41, 88 L. Ed. 439 (1943), and by the federal case of Application of Thompson, 157 F. Supp. 93 (E.D. Pa. 1957), aff'd, 258 F.2d 320 (3 Cir. 1958), cert. denied, 358 U.S. 931, 79 S. Ct. 317, 3 L. Ed. 2d 303 (1959), which, in effect, would render such a pursuit for taxpayer relief entirely futile.
Plaintiffs' reliance upon Kiker and Thompson, in support of their futility argument, is misplaced. Those cases dealt with the Philadelphia Wage Tax, not the Pennsylvania Income Tax and, accordingly, are inapposite.
Obviously, plaintiffs consider themselves shuttled between state and federal courts. We are not unmindful of the plight in which they find themselves. It should be borne in mind, however, that the Pennsylvania Income Tax, as originally adopted on March 4, 1971, was successfully challenged in Amidon v. Kane, 444 Pa. 38, 279 A. 2d 53 (1971) wherein the Supreme Court of Pennsylvania declared such Tax Act unconstitutional. That holding occasioned the enactment of a new Income Tax Act on August 31, 1971, and is the Act presently under attack; it stands unchallenged in the Commonwealth courts. Consequently, the remedies afforded by the Commonwealth are still available to an aggrieved taxpayer. Such remedies, which the plaintiffs must pursue, oust the jurisdiction of this Court.
Although the complaint alleges that the Declaratory Judgment Act and the statutes requiring a three-judge court are jurisdictional, they are not. Independent jurisdictional requisites must be met in order to proceed under these statutes. Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 70 S. Ct. 876, 94 L. Ed. 1194 (1950); Jacobs v. Tawes, 250 F.2d 611 (4 Cir. 1957). Furthermore, where injunctive relief is unavailable in this field, as in the present instance, a declaratory judgment may not be used in an effort to attain the same result. Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S. 293, 300-301, 63 S. Ct. 1070, 87 L. Ed. 1407 (1943); Hillsborough v. Cromwell, 326 U.S. 620, 622, 623, 66 S. Ct. 445, 90 L. Ed. 358 (1946); Perez v. Ledesma, 401 U.S. 82, 127-128 n. 17, 91 S. Ct. 674, 27 L. Ed. 2d 701 (1971) (Brennan, J. concurring in part and dissenting in part).
Turning to the motion by the Municipality of Philadelphia, and its Tax Collector, to dissolve this three-judge court and to dismiss the complaint, we are confined to a narrow determination of whether this court has jurisdiction to relieve non-resident taxpayers from paying the Philadelphia Wage and Net Profits Tax by declaring it unconstitutional as to them and limiting its collection to resident taxpayers.
Although this tax ordinance was adopted pursuant to the authority granted to first-class cities in the Commonwealth, Pa. Stat. Ann. tit. 53 § 15971 (1961),
no challenge is directed to this enabling statute. We are simply confronted with a challenge to a municipal ordinance of general application within the Municipality of Philadelphia, as distinguished from a tax statute of statewide application representing Commonwealth policy. The Supreme Court has consistently construed 28 U.S.C. 2281 (1964) as to require three-judge courts not merely when a state statute is involved, but only when a state statute of general and statewide application is sought to be enjoined. Moody v. Flowers, 387 U.S. 97, 101, 87 S. Ct. 1544, 18 L. Ed. 2d 643 (1967). "Statute" in § 2281 does not encompass "local ordinance." The Philadelphia Wage Tax is a local ordinance. The question of its constitutionality, accordingly, is for a one-judge court.
Finally, the United States Government and its officers have also moved to dismiss the complaint. This Court is of the opinion that it would be improper to assume jurisdiction in order to determine that motion. Attacks on administrative regulations and orders, such as the Naval Joint Instruction and Circular A-38, do not require the special statutory tribunal provided by 28 U.S.C. § 2282. No interlocutory or permanent injunction restraining the enforcement, operation or execution of any Act of Congress is sought. William Jameson & Co. v. Morgenthau, 307 U.S. 171, 59 S. Ct. 804, 83 L. Ed. 1189 (1939).
Consequently, these motions are not properly within the jurisdiction of this three-judge court and will be referred to the initiating district judge for disposition.
In accordance with the views expressed herein, an appropriate order shall be entered herewith by the Court providing for dissolution of this three-judge court, for a dismissal of the complaint as against the defendants, Commonwealth of Pennsylvania and its Governor, the Honorable Milton Shapp, and for a referral to the initiating judge for disposition of the remaining motions.