Commonwealth v. Gormly

• Decision Date: 17 February 1896
• Docket Number: 95
• Citation: 173 Pa. 586,34 A. 282
• Parties: The Commonwealth of Pennsylvania, Appellant, v. John Gormly
• Court: Pennsylvania Supreme Court

34 A. 282

173 Pa. 586

The Commonwealth of Pennsylvania, Appellant, v. John Gormly

No. 95

Supreme Court of Pennsylvania

February 17, 1896

Argued January 15, 1896

Appeal, No. 95, July Term, 1895, by plaintiff, from judgment of C.P. No. 1, Phila. County, June T., 1893, No. 383, on verdict for defendant. Affirmed.

Appeal from assessment of mercantile tax appraisers. Before BREGY J.

The facts appear by the opinion of the Supreme Court.

The court gave binding instructions in favor of the defendant.

Verdict and judgment for defendant. Plaintiff appealed.

Error assigned was above instructions.

Judgment affirmed.

J. Edward Carpenter, for appellant. -- The act of April 2, 1821, P.L. 244; March 4, 1824, P.L. 32; April 7, 1830, P.L. 387; May 4, 1841, P.L. 310; April 16, 1845, P.L. 533, and April 22, 1846, P.L. 487, which imposed the mercantile license taxes, were intended to apply to all dealers. The act of April 16, 1845, uses the language, "all dealers."

The defendant calls his profits "a percentage," but that is only another name for profits. Sometimes these percentages allowed, or discounts as they are sometimes called, amount to twenty-five, thirty, forty and fifty per cent, and even more, below the catalogue price at which these good are sold to the customer. The difference is the plumber's profit.

In so far as the plumber deals in plumbers' supplies, gas fixtures, etc., he is a dealer within the meaning of the acts of assembly, and must pay the license fee exacted from "all dealers." The courts favor the construction of acts relating to taxation so as to divide the burden equally: Com. v. Thomas Potter, Sons & Co., 159 Pa. 583.

As it is the object of the law to levy the tax on all dealers, it is immaterial how the articles may be sold, or whether after sale they shall be fitted in the places prepared for them.

Hood Gilpin, Ray W. Jones with him, for appellee. -- A mercantile license is a tax: Com. v. Potter, Sons, & Co., 159 Pa. 583.

The act of April 20, 1887, P.L. 60, is unconstitutional, as it is obnoxious to the provisions of article III, section 7, of the constitution of Pennsylvania, forbidding the passage of any local or special acts: Van Loon v. Engle, 171 Pa. 157.

In Norris v. Com., 27 Pa. 494, this court has defined a dealer as one who depends for his profits, not upon the labor he bestows upon his commodities, but upon the skill and foresight with which he watches the market.

And it has been held that a tanner who purchases hides, manufactures them into leather and sells them, is not a dealer: Com. v. Campbell, 33 Pa. 380; nor a miller who manufactures flour and feed from grain purchased for that purpose: Lamen v. Paxton, 2 Luz. L. Reg. 259; nor a butcher who sells meat slaughtered by himself in a market-house stall or from a wagon: Givler's App., 12 W.N.C. 236; Com. v. Brinton, 3 D.R. 783.

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

OPINION

MR. JUSTICE GREEN:

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 a plumber and employs other plumbers to help do the work. He gets paid by charging for his labor and the cost of the material he buys on which he charges a percentage which is added to the cost and goes to make up the whole amount of his profit. He has no store or other place at which he does business as a buyer and seller. He has no other place of business but his workshop.

Is such a man a dealer within the meaning of the tax laws? In Norris v. The Commonwealth, 27 Pa. 494, we held that a dealer under the tax laws in the popular, and therefore in the statutory, sense of the word, is not one who buys to keep or makes to sell, but one who buys to sell again. BLACK, J in delivering the opinion said, "The meaning of the statute is perfectly clear. The legislature understood the words it was using. A tax was laid upon dealers, that is those who should buy to sell. This of course did not include persons who sold the wares manufactured by themselves. Dealers, therefore, might evade the tax by having an interest in the factory. To prevent this the second clause was...