Commonwealth v. Iron City Brewing Co. 146 Pa. 642

COMMONWEALTH v. IRON CITY BREWING CO. Commonwealth v. Large Distilling Co. Commonwealth v. Joseph Einstein & Co. Commonwealth v. Mary E. Pollard. Commonwealth v. James K. Lanahan.

APPEALS BY COMMONWEALTH FROM THE COURT OF COMMON PLEAS NO. 2 OF ALLEGHENY COUNTY.

Argued November 4, 1891

Decided January 4, 1892.

Brewers, distillers, bottlers, and wholesale and retail dealers in liquors, ai’e not assessable by the mercantile appi'aiser as vender's of mex'chandise; the license acts of May 13, 1887, P. L. 108; May 24, 1887, P. L. 194; and June 9, 1891, P. L. 257, having superseded the old system of mercantile assessments, as to all such persons.

Before Paxson, C. J., Sterrett, Green, Clark, Williams and Mitchell, JJ.

*643Nos. 253, 257 October Term 1891, Sup. Ct.; court below, Nos. 342, 408, 392, 429, 450 July Term 1891, C. P. No. 2.

To the numbers stated of the court below, the Iron City Brewing Company, the Large Distilling Company, Joseph Einstein & Co., Mary E. Pollard, and James K. Lanahan entered, by allowance of said court, appeals from assessments of mercantile license tax, made against them respectively by the mercantile appraiser of Allegheny county, for the year commencing May 1, 1891: See § 1, act of April 11, 1862, P. L. 492.

The acts of assembly relating to mercantile licenses under which the assessments were made, are the following: Act of April 7, 1830, P. L. 387; act of May 4, 1841, P. L. 307; act of April 16, 1845, P. L. 532; act of April 22, 1846, P. L. 486; act of April 10, 1849, P. L. 570.*

At the hearings of these cases, the following facts were made to appear, and were undisputed :

The Iron City Brewing Co. was a corporation engaged in the business of manufacturing and selling malt and brewed liquors, in the city of Pittsburgh, under a license granted to it by the Court of Quarter Sessions of Allegheny county, selling no goods and merchandise whatever except the products of its brewery. The Large Distilling Co. was a partnership having a distillery in Jefferson township, Allegheny county, and operating under a license granted by said Court of Quarter Sessions, selling only the spirituous liquors produced thereat. Einstein & Co., Mary E. Pollard, and James K. Lanahan were all engaged in carrying on business in the city of Pittsburgh, under licenses granted by said' Court of Quarter Sessions ; Einstein & Co. as bottlers of malt and brewed liquors, Mary E. Pollard as a wholesale liquor dealer, and James K. Lanahan as retailer in the St. James Hotel, kept by him. Neither of them was engaged in any other business than those covered by their respective licenses, except Mary E. Pollard, who sold mineral waters, flasks, cooperage and cigars, her business in these articles, however, not exceeding five thousand dollars per annum.

The assessments made by the mercantile appraiser classified the defendants as follows :

*644Iron City Brewing Co., . Third class.

Large Distilling Co., .... Eighth class.

Einstein & Co., . . Twelfth class,

Mary E. Pollard, .... Third class.

James K. Lanahan, .... Ninth class.

After argument, the court, White, J., filed the following opinion:

The sale of liquors by retail has always been limited in this state to those who kept inns or taverns for the accommodation of strangers and travelers. The only exceptions were, in Philadelphia, by the act of April 20,1858, and in Allegheny county, by the act of April 3, 1872, drinking saloons were authorized to be licensed. In all the acts on the subject, March 8, 1815, April 7, 1830, March 11,1834, March 31,1856, April 20,1858, and April 12, 1875, the amount of license was regulated by the annual sales or the rental value of the property. The act of May 13, 1887, was the first that fixed a definite and uniform rate for a city, borough or township. In all the acts from 1815 to 1887, except in Philadelphia and Allegheny counties, by the acts of 1856, 1858 and 1872, licenses were to be granted by the Court of Quarter Sessions. The various acts made different classifications of inns, taverns and hotels, and fixed different rates for licenses for the different classes. In many of these acts, there was no express repeal of former acts. Yet, being on the same subject and generally increasing the license fee, the later act superseded the former one.

The acts of May 4, 1841, April 22,1846, and April 10,1849, do not include inns and taverns, or retail dealers, leaving them under the license fees fixed by the act of March 11, 1834. As the act of May 13, 1887, expressly includes them, and fixes the license fee to be paid, it is all the license fee or tax the retailer of liquors is required to pay. If he deals in any other goods, wares or merchandise, he may be liable to pay a mercantile tax on them. That, however, should appear on the assessment of the mercantile appraiser. In one case before us, that of James K. Lanahan, it appears to be an assessment upon his license as a hotel-keeper.

A tax, or “ duty,” as it was called, was imposed upon “ the retailers of foreign merchandise,” by act of March 4. 1824, and *645extended to “ wholesale dealers and retail dealers in merchandise,” by act of April 7, 1880. These provisions were reenacted and enlarged by act of May 4,1841, entitled “ An Act to provide revenue to meet the demands on the treasury, and for other purposes,” and “ extended and applied to all persohs engaged in the selling or vending of goods, wares, merchandise, commodities, or effects of whatsoever kind or nature.” It divided such venders into fourteen classes, according to amounts of annual sales. The language was broad enough to include venders of liquors, and did, because “ the venders of wines and distilled liquors ” were required to pay fifty per cent more than other venders of the same class. These acts, however, included only foreign merchandise. But the act of April 22, 1846, entitled “An Act to provide for the reduction of the public debt,” extended the provisions to “ all dealers in goods, wares and merchandise, the growth, product and manufacture of the United States.” It also provided for the appointment of a mercantile appraiser in each county of the state.

The mercantile tax is now assessed by the mercantile appraiser, in pursuance of these two acts of 1841 and 1846, as extended and modified by the act of April 10, 1849. This latter act included beer-houses, eating-houses, restaurants and oyster cellars, patent medicines, and distillers and brewers, and provided for their classification according to the amount of annual sales. The act was entitled “ An Act to create a sinking fund, and to provide for the gradual and certain extinguishment of the debt of the commonwealth.” It was the first that imposed a tax upon distillers and brewers. Thus far, bottlers were not expressly mentioned in the acts, but doubtless they would be included in the general terms of the acts of 1841 and 1846.

The act of 1849 was followed by the act of March 31,1856, entitled “ An Act to regulate the sale of intoxicating liquors.” It applied to the whole state, with special provisions for a board of licensers in Philadelphia and Allegheny counties. It classified breweries and distilleries, wholesale dealers, hotels, inns and taverns, and eating-houses, and fixed the license fees according to annual sales, or the yearly rental. It also provided that persons “ pursuing exclusively the business of bottlers of cider, perry, ale, porter or beer,” need not take out a license. *646It also repealed “ all other laws or parts of laws inconsistent ” with the provisions of this act.

The supplement to this act, April 20, 1858, continued the tax upon the same classes of business, modified some of the provisions, changed the classifications and license fees, and had special provisions for Philadelphia and Allegheny counties, but contained nothing specially bearing upon the questions involved in these appeals. The local act for Allegheny county, of April 3,1872, was repealed, except as to the mode of granting licenses, by the general act of April 12, 1875, which regulated the mode of granting licenses, and fixed the license fee according to the yearly sales, but provided that no license for hotel, inn or tavern should be less than fifty dollars, and for bottlers not less than fifty dollars.

The acts of Maj7 13, 1887, and May 24, 1887, embrace all dealers in intoxicating liquors, hotels, inns and taverns, retailers, distillers, brewers, wholesale dealers and bottlers, and fix the license fee to be paid by each.

Without referring to other acts, this general review of legislation on the subject shows that the policy of the state has been to make dealers in the manufacture and sale of intoxicating liquors pay an annual tax to the state, like all other dealers in goods, wares and merchandise, and generally a higher rate. Whether called a “ duty,” or “ tax,” or “ rate,” or a license “ fee,” it means the same thing. Each subsequent legislation, changing the classification and rate or amount to be paid, superseded the prior classification and rate. There is nothing in any of the various acts on the subject, to indicate that venders of intoxicating liquors should pay two taxes, or one mercantile tax and one license fee. No doubt the legislature has power to impose such a burden; but the intention to do so should be clearly manifested. We hold, therefore, that the license fee required to be paid by distillers, brewers, wholesale dealers and bottlers, under the act of May 24, 1887, is all they are required to pay; they are not liable to a mercantile tax, in addition thereto, under the acts of May 4, 1841, and April 22, 1846. This, of course, applies to them only as dealers in intoxicating liquors. As dealers in any other goods, wares or merchandise, they may be liable to the mercantile tax.

The appeals in these five cases are sustained, and the assessments set aside.

*647—Thereupon, the commonwealth took these appeals, specifying, in the cases against the Iron City Brewing Company and the Large Distilling Company, that the court erred :

In sustaining the appeals of said defendants from the asse ments made by the mercantile appraiser; in holding that said defendants were not liable to pay a mercantile license tax to the commonwealth, and in not entering judgments in favor of the commonwealth for the amounts of said assessments.

And specifying, in the other cases, that the court erred :

1. In finding that a wholesale dealer in intoxicating liquors is not required to pay a mercantile license tax, under the acts of May 4,1841, P. L. 307, and April 22, 1846, P. L. 487.

2. In making a similar finding as to bottlers of vinous, etc., liquors.

3. In making a similar finding as to retailers of intoxicating liquors.

4. In sustaining the appeal from the assessment in each of said cases.

5. In not dismissing each of said appeals.

Mr. Robert S. Fraser and Mr. William M. Sail, Jr., for the Commonwealth:

There is no conflict whatever between the acts of May 4, 1841, P. L. 307, and April 22, 1846, P. L. 487, and the acts of May 13, 1887, P. L. 108, May 24, 1887, P. L. 194, and June 9, 1891, P. L. 257. The former acts impose a business tax, and the acts of 1887 and 1891 provide for payment of a license fee. The two are very different things: Cooley on Taxation, 385, 406; Wilmington v. Roby, 8 Ired. 250; Wilmington v. Patterson, 8 Jones (L.) 182; Baker v. Panola Co., 30 Tex. 86; Frankford St. R. Co. v. Philadelphia, 58 Pa. 119; Johnson v. Philadelphia, 60 Pa. 445; Addler v. Whitebeck, 44 Ohio St. 558; Youngblood v. Sexton, 32 Mich. 406 (20 Am. Rep. 654); Chilvens v. Pepple, 11 Mich. 43; Allentown v. Gross, 132 Pa. 322; Commonwealth v. Reyburg, 122 Pa. 304; Drexel v. Commonwealth, 46 Pa. 41. The abandonment of the taxing power is not to be presumed: 2 Pars, on Cont., 527; Easton Bank v. Commonwealth, 10 Pa. 442; Providence Bank v. Billings, 4 Pet. 514; Phila. etc. R. Co. v. Maryland, 10 How. 376.

*648 Mr. William 8. Pier (with him Mr. William R. Blair, Mr. John 8. Robb, Mr. James Fitzsimmons, Mr. Josiah Cohen, Mr. Abraham Israel, Mr. D. T. Watson and Mr. Q-. P. Graver), for the appellees other than J. K. Lanahan; Mr. Charles P. Orr (with him Mr. Thomas C. Lazear), for James K. Lanahan.