Commonewalth v. Thomas Potter, Sons & Co.

• Court: Pennsylvania Supreme Court
• Writing for the Court: MR. JUSTICE WILLIAMS:
• Citation: Commonewalth v. Thomas Potter, Sons & Co., 28 A. 492, 159 Pa. 583 (Pa. 1894)
• Decision Date: 12 February 1894
• Docket Number: 104
• Parties: Commonwealth v. Thomas Potter, Sons & Co., Appellants

28 A. 492

159 Pa. 583

Commonwealth v. Thomas Potter, Sons & Co., Appellants

No. 104

Supreme Court of Pennsylvania

February 12, 1894

Argued January 8, 1894

Appeal, No. 104, July T., 1893, by defendants, Thomas Potter Sons & Co., incorporated, from order of C.P. No. 4, Phila Co., March T., 1893, No. 245, making absolute rule for judgment for want of a sufficient affidavit of defence.

Rule for judgment for want of sufficient affidavit of defence, on appeal from decision of mercantile appraisers.

The commonwealth, by George D. McCreary, treasurer of the city of Philadelphia, claimed to recover from defendants a license fee of one hundred dollars, penalty of ten per cent, amounting to ten dollars, and the city fee for issuing license, fifty cents. An affidavit of defence filed averred payment of the franchise tax and denied liability for the license tax.

Rule for judgment absolute. Defendants appealed.

Error assigned was above order.

The court below laid down the law correctly and the judgment is affirmed, except as to the penalty; this is an appeal from the appraisement, for which the law provides, and until disposed of the penalty is not incurred. The judgment is reduced to one hundred dollars and fifty cents.

J. Campbell Lancaster, William Henry Lex with him, for appellant, cited: Act of April 7, 1830, P.L. 387; May 4, 1841, P.L. 310; April 16, 1845, P.L. 533; April 13, 1866, P.L. 104; Cooley on Taxation, 164, 165, 201; Burroughs on Taxation, 146, 166; School Directors v. Bank, 8 Watts, 289; Act of March 25, 1831, P.L. 206; Saving Fund v. Yard, 9 Pa. 359; Fox's Ap., 112 Pa. 337; Boyd v. Hood, 57 Pa. 98; Acts of June 1, 1889, P.L. 420; June 8, 1891, P.L. 238.

J. Edward Carpenter, W. U. Hensel, attorney general, with him, for appellee, cited: Act of April 29, 1874, P.L. 73; School Directors v. Carlisle Bank, 8 Watts, 289; Act of April 16, 1845, P.L. 533; April 13, 1866, P.L. 104; April 11, 1862, P.L. 484; April 18, 1878, P.L. 26; April 11, 1883, P.L. 9; Durr v. Com., 3 Pa. C.C.R. 525; Wishart v. Leslie, 36 Pitts. L.J. 223; Com. v. Kelley, 5 Kulp, 536; Const. of Penna. § 7, art. 13.

Before STERRETT, C.J., WILLIAMS, McCOLLUM, MITCHELL, DEAN and FELL, JJ.

OPINION

MR. JUSTICE WILLIAMS:

It is true, as appellants contend, that a mercantile license is a tax; but it is a tax levied on a mode of doing business and not upon persons. By the act of 1830, it was imposed only on dealers in foreign goods, wares and merchandise. The act of May 4, 1841, extended the tax to all dealers, whether the articles sold by them were of foreign or domestic production. The extent to which manufacturers were affected by this tax was a question that was settled by the act of 1846, by providing that sales made by a mechanic or manufacturer, of his own products, did not subject him to the mercantile tax unless he kept a store, or sold goods manufactured by others to an extent exceeding one thousand dollars. Under these acts, it was held that a manufacturer might sell his own products at his factory, or send them to a commission merchant for sale, without liability to the tax: Commonwealth v. Campbell, 33 Pa. 380; Norris v. The Commonwealth, 27 Pa. 494. But if the manufacturer keeps a store or warehouse where he sells goods manufactured by others, as well as those made by himself, he is liable to assessment as a dealer: Osborn v. Holmes, 9 Pa. 333.

The appellant is a manufacturer of oilcloths. It conducts a store at some distance from its factory, in which it deals in this class of goods. The assessment by the mercantile appraiser affirms that the business done at this store includes not only the sale of the articles produced by the appellant, but the dealing in the products of other manufacturers. The appellant in the affidavit of defence does not deny that this is the character of its business, but insists that, as it is incorporated under the laws authorizing the incorporation of manufacturing companies, it is not within the purview of the laws relating to mercantile taxes. But the exemption enjoyed by manufacturing companies is confined to the plant used for the manufacture of its goods,...