Oct. '95, 116. Commonwealth, for use, v. Menjou. Action for penalty-Appeal, when grantedPower of Common Pleas. The Court of Common Pleas has power to allow an appeal from a judgment rendered by a magistrate for a penalty. Where it appears from the petition for an appeal that the defendant neglected a summons and failed to appear and defend before a magistrate and alleges as ground for the appeal that he is innocent of the offence charged and, on information, that the magistrate did not observe the that the prosecutor was unable to show the authority by rules of evidence in the examination of witnesses and January 29, 1896. for a penalty. That subject was considered in Commonwealth v. McCann, which has just been decided, and we there held that Art. V., sec. 14, of the present Constitution, and the Act of 1876, passed in pursuance of it and to give effect to its provisions, vested the power to allow an appeal in the Court into which the appeal must regularly come, and that this power might be exercised by the Court or by any Judge thereof. We must turn therefore to the petition and inquire whether any sufficient reason why an appeal should be allowed in the particular case was therein brought to the attention of the Court below. Upon examination we find the petition states three reasons for asking that an appeal be allowed. These are first, that the petitioner is innocent of the offence charged. Second, that the magistrate did not observe the rules of evidence in the examination of witnesses. Third, that the representative of the "dairy and food Appeal of Albert Menjou, defendant, from commissioner was unable to show any authority the decree of the Common Pleas No. 1, of Allegheny County, refusing to grant defendant an appeal from judgment of a justice of the peace recovered by the Commonwealth of Pennsylvania for the use of Allegheny County and Eastburn Reeder, dairy and food commissioner for the State of Pennsylvania, plaintiff. which he claimed to act, no appeal should be allowed. The petition is a general plea of not guilty, entered after judgment, in a proceeding of which the petitioner had ample notice, before a magistrate whom the law had clothed with the power to hear and determine the truth or falsity of the charge. The assignment of error was to the order of for acting as such agent except the certificate alleged to have been signed by Eastburn Reeder, dairy and food commissioner." It does not account for the non-appearance of the petitioner at the trial. Practically it admits service of the summons, and an opportunity to be heard in his defence, and asks the Court of Common Pleas to allow him another opportunity to defend, because he deliberately declined to avail himself of that which was offered him in the Court from whose judgment he seeks to appeal. The second and third reasons are averred on information. Reduced to its actual legal value the petition simply denies liability to the penalty. It is a general plea of not guilty entered after judgment in a proceeding of which The summons was issued on the tenth day of the petitioner had ample notice and before a January, 1895, returnable on the eighteenth. magistrate whom the law had clothed with the It was served on the defendant personally but power to hear and determine the truth or falsity he declined to appear. On the return day the of the complaint. February 24, 1896. WILLIAMS, J. The defendant was sued under the provision of the Act of twenty-first May, 1885, for the penalty provided for an unlawful sale of oleomargarine. prosecutor appeared with his witnesses and the If the failure to appear had been accounted case was fully heard, after which judgment was for so that it was made apparent that the petirendered in favor of the Commonwealth and tioner had really had no opportunity to make against the defendant for the penalty of one his defence and would be condemned to pay the hundred dollars and costs. On the twenty-third penalty without a chance to be heard unless an day of January the defendant appeared in the appeal was allowed, the Court of Common Pleas Court of Common Pleas of Allegheny County would no doubt have granted the prayer of the No. 1, with a petition asking that Court to allow petitioner and given him a chance to make his an appeal from the said judgment into the Court defence in that Court. But he has had a fair of Common Pleas under the provisions of the and full opportunity to be heard. He shows no Act of seventeenth April, 1876. On the same day reason for not availing himself of it. Having the application was refused. No opinion was chosen to make default he should present some filed by the learned Judge. We are now asked reason why he should now be relieved from a to review this action so taken and determine position which he has deliberately assumed, or whether the appeal should not have been al- abide by the consequences. lowed. There can be no question of the power of the Court of Common Pleas or any Judge thereof to allow an appeal from a judgment rendered by a magistrate, or a Court not of record, The decree appealed from is affirmed. The costs to be paid by the appellant. [See two cases preceding.] J. D. B., Jr. July, '95, 106. Commonwealth v. The American Tobacco Company. Mercantile taxes. - January 21, 1896. to residents and citizens of said State and sometimes exhibiting samples of said tobacco; that upon receiving orders for said tobaccos, the agents of said defendant forwarded the same to its several factories outside of the State, from Acts of Assembly as to which points they were shipped to the purchaser. Intention of Examination of the several The affidavit explicitly denied that defendant statutes thereon-Business conducted outside had transacted, or was engaged in, any business of the State-Sales on account of made by in the State of Pennsylvania other than as above agents in the State-Appeals from mercantile assessments-When necessary. The several statutes imposing mercantile taxes are only intended to tax persons located or having a place of business within the county for which the mercantile ap praiser, making the assessment, is appointed. A corporation engaged in the manufacture and sale of tobacco, was assessed by the mercantile appraiser of P. county. Having refused to pay the tax, the corporation appealed from the magistrate's judgment, enforcing the same, and filed an affidavit of defence, averring that it was organized under the laws of another State, and had no domicile, or place of business in P. county; but that all its sales, made within the same, were through agents, who, having secured orders, forwarded them to its several factories outside of the State. The Court entered judgment for want of a sufficient affidavit of defence: Held, to be error. The prohibition of the Act of April 11, 1862, as to any defence which might have been set up on appeal to the board of mercantile appraisers where the defendant has neglected to appeal, is not applicable where the assessment has been made without any authority in the premises. Appeal of the American Tobacco Company, defendant, from the judgment of the Common Pleas No. 3, of Philadelphia County, entered for want of a sufficient affidavit of defence, upon appeal from a magistrate's judgment, entered upon a claim for mercantile taxes for the year 1894. stated, and further averred that any Acts of Assembly of the Commonwealth of Pennsylvania subjecting the defendant to the payment of a fee for license to carry on business in the manthe right of Congress to regulate commerce ner above set forth, were an interference with among the several States, and unconstitutional. The Commonwealth took a rule for judgment for want of a sufficient affidavit of defence, which the Court made absolute. Whereupon the defendant took this appeal, assigning for error this action of the Court. H. Gordon Mc Couch and Richard C. Dale, for appellant. In so far as the Acts of Assembly attempt to impose a license fee on such a business as is conducted by the defendant corporation, they are unconstitutional. The Court always has jurisdiction where the constitutionality of an Act is in question. It was not necessary for the defendant to appeal to the board of mercantile appraisers from the assessment of the tax. Act of Assembly, April 11, 1862, sec. 1, P. L. 492. merce. Brennan v. City of Titusville, 153 U. S. 292. Gloucester Ferry Company v. Pennsylvania, 114 Id. 196. Phila and Southern Steamship Company v. Penna., 122 Id. 326. Cooper Mfg. Company v. Ferguson, 113 Id. 727. Wile & Brickner Company v. Onsel, 1 Dist. Rep. 187. Ware v. Hamilton Brown Shoe Co., 9 So. Rep. Mfg. Co. v. Hardee, 16 Pac. Rep. 605. The facts of this case were as follows: The defendant corporation was assessed by the mercantile appraisers for the city and county of Philadelphia, as a dealer in or vendor of merchandise in the third class, and as liable for the mercantile license tax of $100 for 1894. The defendant refused to pay the tax. Suit was then instituted before a magistrate to recover said tax, and judgment was entered in favor of the Commonwealth. From this judgment the defendant appealed to the Court of Common Pleas, and filed an affidavit of defence in substance as follows: That the defendant corporation was organized under the laws of the State of New Jersey, and had no domicile in the city of Phil- The same point raised here was passed on by adelphia or elsewhere in the State of Pennsyl- the Common Pleas No. 4, of Philadelphia vania and no office therein; that in the prosecu- county, on January 4, 1896, in a suit against the tion of its business the said defendant employed same defendant to recover a similar mercantile agents, who, under its direction, solicited in the tax for the year 1895, and upon a case stated, city of Philadelphia, and elsewhere in said State, embodying the same facts as are here set forth, orders for tobaccos manufactured by said de- judgment was rendered in favor of the defendfendant outside of said State by going personally ant. Simmons Hardware Co. v. Maguire, 39 La. An. 848. Com'th. American Tobacco Company, C. P. 4, dealers having a place of business within the June term, 1895, No. 290. J. Edward Carpenter, for appellee. The Acts of Assembly, imposing mercantile license taxes, apply to all dealers, and the defendant corporation is within their terms. proper county is made still clearer by the Act of eleventh April, 1862, which made it the duty of the mercantile appraiser to visit personally the store or other place of business returned by him, as charged with the license tax "of every Under the Act of Assembly April 11, 1862, person" whom he is required by law to assess the defendant having failed to appeal to the and classify as a dealer; and allowed him to board of mercantile appraisers from the assess- charge mileage for all the distance necessarily ment of the tax, cannot interpose any defence traveled in making such visitation and appraisewhich might have been set up before said board. ment. He was also required to serve the person Corporations are liable to the mercantile or firm so returned by him with a notice of his license tax, and a foreign corporation has no appraisement at the time of such visit. The Act higher rights than a domestic corporation. of 1866 authorized the collection of the license by distraint upon the goods and chattels of the delinquent. Com'th v. Thomas Potter, Sons & Co., 159 Pa. 583. February 10, 1896. WILLIAMS, J. The busi- This system of legislation has been steadily ness of the defendant company is the manufac- regarded by the law makers as applicable to perture of tobacco and the sale of its manufactured sons, and places of business, located within the products. It has no factory, store, office or county for which the mercantile appraiser is apother place of business in the State of Pennsyl- pointed, as is quite evident from later and supvania. Its sales are made through agents or plementary Acts upon the same general subject. traveling salesmen who solicit orders and when Thus in 1892 an Act was passed which provided obtained transmit them to the office of the com- for the taxation of "transient retail dealers' by pany or one of its factories to be filled. It made the city, borough or township in which such sales of cigars and cigarettes in this manner transient dealers may come and attempt to open within the city of Philadelphia, and the mercan- a place of business. It did not provide for their tile appraiser of Philadelphia county assessed it appraisement by the mercantile appraiser but with a mercantile tax as doing business as a dealer authorized the city or borough to fix the amount here. of the tax or license to be imposed by ordinance, The tax was not paid and this suit was brought and the township treasurer to fix the amount in to compel its payment. An affidavit of defence townships. Foreign dealers had already been was filed alleging that the corporation was not provided for by the Act of 1887 which empoworganized under the laws of this State, had no ered cities and boroughs to impose a tax upon place of business within the State, and was not foreign dealers, or their agents, having no perliable to assessment with a mercantile tax as a manent place of business in any such city or dealer doing business in Philadelphia. The borough, subject to the restriction that the tax so learned Judge of the Court below held the affi- imposed should not exceed the local taxes imdavit insufficient and entered judgment against posed upon resident merchants engaged in a like the defendant for the amount of the tax. business in the same city or borough. Sales by The only question raised is over the suffi- sample were, however, expressly excluded from ciency of the affidavit of defence. This must the operation of this Act. We think it very depend on the meaning of the several statutes clear from this glance at the statutes relating to imposing, and providing for the collection of, the duties of the mercantile appraiser, and the mercantile taxes. The Act of seventh April, taxation of transient and foreign dealers, that the 1830, sec. 1, imposes the tax upon "every per- defendant in this case was not subject to assessson who shall deal in the selling of any goods, ment as a dealer by the mercantile appraiser. wares and merchandise" in this State, with cer- The affidavit of defence was therefore sufficient tain exceptions, and requires such persons to to prevent judgment, and the averments therein "take out from the treasurer of the proper county if sustained at the trial present a complete deor city a license" authorizing them to sell as fence to the plaintiff's claim. dealers at wholesale or retail the goods, wares, and merchandise, in which they propose to trade. The learned Judge did not put the reasons which influenced his action upon the record, and we are left to conjecture as to what they were. By a supplementary Act it is provided that if It may be that he regarded the assessment of the any person shall have more than one store in license tax as wholly unauthorized, but regarded which merchandise is vended such person "shall the failure of the defendant to appeal from it as be required to take out a license for each and precluding the company from setting up any deevery store." The legislative intention to im- fence whatever to this action. If the defendant pose the mercantile tax or license on permanent had been a local dealer within the county of J. Edward Carpenter, for appellant. The mercantile license tax Acts were intended to apply to all dealers. Philadelphia, regularly assessed, and served with notice, the remedy for any error in the assessment would have been by appeal. If this had been neglected the defendant would have been The plumber does not manufacture his supprecluded by such neglect from defending in this plies such as bath-tubs, sinks, water closet fixaction for any error or irregularity that could tures, gas fixtures, etc. On the contrary, he is have been reached on an appeal. But the de-a competitor for the business with other dealers fendant was not subject to assessment by the and manufacturers. mercantile appraiser. That officer was without Hood Gilpin, (Ray W. Jones with him), for A mercantile license is a tax. any authority in the premises, and his unauthor-appellee. ized act imposed no liability and no duty on the defendant. It had a right to treat his appraisement as a nullity, as it really was, and to disregard it. has a right now, when sued for the license so illegally assessed against it, to allege the want of authority in the appraiser to impose it, as a defence to the plaintiff's claim. The judgment is reversed, record remitted, and a procedendo awarded. Mercantile license tax-Meaning of "dealer". The several mercantile license tax Acts are intended to apply to dealers in the sense of persons who buy for the purpose of selling. One who buys to keep or makes to sell is not within the Acts. A plumber who buys materials which he puts into buildings, putting his own work upon them, is not a dealer, but, so far as the actual dealers are concerned, is a consumer of the materials which he employs. Commonwealth v. Potter, 159 Pa. 583. The assessment in this case was made under the Act of April 20, 1887, P. L. 60. This Act excepts from the method of appointment of appraisers, otherwise general throughout the State, "cities of the first class." It is therefore class legislation and concerns a subject as to which classification is unconstitutional. Van Loon v. Engle, 171 Pa. 157. Norris v. Commonwealth, 27 Pa. 494. February 17, 1896. GREEN, J. This action. is brought to recover a mercantile license tax from the defendant as a "dealer in goods, wares and merchandise," under the laws which impose such taxes. The defendant is a mechanic—a plumber-who puts in steam and water heating apparatus for the owners of buildings. He also sometimes puts in bath-tubs with the necessary adjuncts of pipes and other material. He does not manufacture any of these articles, but buys the necessary valves, radiators, boilers and pipes, and such other material as constitutes a steam heating plant, from the dealers in plumbing materials and cuts and fits them all together and puts them in the building. He works himself as Defendant was assessed by the mercantile ap- a plumber and employs other plumbers to help praisers for the city and county of Philadelphia do the work. He gets paid by charging for his as a dealer in, or vendor of, merchandise in the labor and the cost of the material he buys, on fourteenth class and as liable for the mercantile which he charges a percentage which is added to license tax of $7 for the year 1893. Defendant the cost and goes to make up the whole amount appealed to the board of mercantile appraisers of his profit. He has no store or other place at on the ground that he was a plumber and was which he does business as a buyer and seller. not liable as a "dealer" for the purchase and He has no other place of business but his worksale of plumbers' supplies used in his business. shop. Appeal of the Commonwealth of Pennsylvania, plaintiff, from the judgment of the Common Pleas No. 1, of Philadelphia County, upon a verdict directed by the Court to be entered in favor of the defendant, John Gormly. The board having held him liable, he appealed Is such a man a dealer within the meaning of to the Court of Common Pleas. The case was the tax laws? In Norris v. The Commonwealth, tried, before BREGY, J., who directed a verdict 27 Pa. 494, we held that a dealer under the tax for the defendant. A motion for a new trial laws in the popular, and therefore in the statuhaving been dismissed, plaintiff appealed, assign- tory, sense of the word, is not one who buys to ing as error the direction to the jury to find a keep or makes to sell, but one who buys to sell verdict for defendant. again. BLACK, J., in delivering the opinion said, "The meaning of the statute is perfectly ufacturer who does sell the very article he makes, clear. The Legislature understood the words it is not liable to the tax unless he keeps a store at was using. A tax was laid upon dealers, that is which his products are sold, how then can a those who should buy to sell. This of course mere mechanic who buys ingredients from others, did not include persons who sold the wares man- and works upon them, combining them into one ufactured by themselves. Dealers, therefore, completed whole, be regarded as a dealer? We might evade the tax by having an interest in the think he can not and that the Court below was factory. To prevent this the second clause was correct in its ruling. added taxing the manufacturers themselves Judgment affirmed. whenever the goods manufactured were sold at a store separate from the workshop, but by express words exempting them in all other cases." The defendants in this case were manufacturers of locomotives which were sold only at their shops and therefore were held not to be dealers in the taxing sense. Oct. '95, 245. J. D. B., Jr. November 5, 1895. In re Estate of the Parisian Cloak & Suit Greenboum's Appeal. Promissory note-Place of payment—Insolvent estates-Preferred creditors-PartnershipAct of April 14, 1838, section 1, P. L. 457. An individual creditor of a firm, whose members are known by him to be members of another firm, who has accepted as collateral to his debt a note made by the lat ter to the order of the former firm, and by it handed to him, will, in proceedings in insolvency instituted against the firm making the note, be postponed to the partnership creditors. In Commonwealth v. Campbell, 33 Pa. 380, the defendant was a tanner who owned his tannery and bought hides and tanned them into leather which he sold at his tannery to shoemakers. But he also sold to commission leather merchants in Baltimore and Philadelphia, and also consigned his leather to commission leather merchants who sold it for him on commission. He kept no warehouse, shop or store in either of the cities named. We held he was not liable to the mercantile tax as a dealer. Said LOWRIE, C. J., delivering the opinion, "A manufacturer or mechanic is taxed for selling his wares, only when he keeps a store or warehouse away from his manufactory, in which he sells the wares, in The Act of April 14, 1838, P. L. 457, cannot be invoked the manufacture of which he is 'concerned or in-which is a creditor of another which has gone into liquidato protect the debt of an individual creditor of one firm, terested,' that is as whole or part owner." tion and the assets of which are subject to partnership In the present case the defendant is neither a claims. manufacturer nor a dealer, in the strict sense of the latter term. He does not buy to sell the articles he uses. He does not sell them in the literal sense and he only buys them when he has Appeal of Yetta Greenboum from the decree a job of work to do for which he requires them. of the Common Pleas No. 1, of Allegheny As between the dealer and himself he is the con- County, in equity, dismissing exceptions filed in sumer. He needs the articles in his business. behalf of the appellant to the report of the audiHe puts them into buildings, putting his own tor appointed to distribute the partnership assets work upon them, but when they are placed there among the creditors of the Parisian Cloak & Suit they are not in the same shape as when he re- Company, in the suit of Thomas H. McCruden ceived them, but as a compact whole composed against Isidor Jonas, Newman Kujavski, and of all the materials required for the purpose, no Mrs. Estelle G. Sommers. matter from what source he obtained them. For A bill was filed reciting that the plaintiff and instance a complete steam heating apparatus re- the defendants constituted a partnership, alleging quires boilers, radiators, pipes, valves, one or misconduct on the part of defendants, and praymore furnaces, and other articles to make a com-ing the appointment of a receiver, an accounting plete work. Some of these things might be ob- and a dissolution. A receiver was appointed by tained from one dealer and others from other agreement of the parties, who in due time filed dealers, but the ultimate thing which the de- his account, which was referred to William M. fendant supplies to his customer, is not the thing Watson, Esq., as auditor, before whom the facts he bought. His own work too must be added, of the case appeared as follows: a necessary and expensive part of the completed On May 4, 1891, the plaintiff and two of the whole, as all persons know who have such bills defendants, Jonas and Kujavski, together with to pay. How then can it be said that such a William Greenboum, the father of the other deperson is a dealer when the thing which he sells fendant, and the husband of Yetta Greenboum, is not the thing which he buys. Even the man- entered into partnership to conduct in Pittsburgh Tassey v. Church, 6 W. & S. 465; Pennock v. Swayne, Id. 239; Allen v. Erie City Bank, 57 Pa. 129, followed. |