Norris Bros. v. Commonwealth , 27 Pa. 494 ( 1856 )

The opinion of the court was delivered by

Black, J.

Norris Brothers are manufacturers of locomotive engines. They make none except to supply orders, and never sell any after they are built except in eases where a customer refuses to take one which he has contracted for. They have no store or place of sale apart from their manufactory. Are they liable to the mercantile tax ?

The Act of 1846 imposes the tax now claimed upon all dealers in American goods, wares, and merchandise, and upon all persons concerned in the manufacture of such goods, wares, and merchandise who shall keep a store for the sale of them, except “ mechanics who shall keep a store or warehouse at their own shop or manufactory for the purpose of vending their own manufactures exclusively.”

The Court of Common Pleas ruled the point in favour of - the Commonwealth, and determined that the tax was properly charged apparently on the authority of Berks County v. Bertolet (1 Harris 522). That was the case of a miller, and this court held that he was a dealer in merchandise because he sold flour; that he was not a mechanic, because the term artist or artisan would not apply to him; and that at any rate he was not within the exception, because he did not sell his flour at home, but hauled it away to his customers in Reading. It is not our business at present to find fault with this decision. It is probably right enough upon the whole, though the grounds of the judgment are very broadly stated. But this case is not like that. Whatever Bertolet may have been, the plaintiffs in error are not dealers. A dealer, 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. He stands intermediately between the producer and the consumer, and depends for his profit, not upon the labour he bestows on his commodities, but upon upon the skill and foresight with which he watches the markets. A man who makes locomotives is a mechanic. If he is not, I know not why we should give that appellation to one who makes wagons or wheelbarrows. And the plaintiffs in error are within the exception, or else the exception has no meaning at all; for they sell locomotives of their own make, at their own shop; and they sell nothing else.

The case agreed upon states that the tire of the engine wheels is bought by the plaintiffs, and not made at their shop. From this we understand merely that they buy the wrought iron, not in common bars, or in masses of indefinite shape, but in a form and size fitted and designed for tires, with a flange to it, so as to require only to be cut the proper length, turned, welded, and adjusted to the cast iron wheel. On this account it is insisted that the machines are not their own manufacture exclusively. But what is manufacturing ? It is making. To make in the mechanical sense does not signify to create out of nothing; for that surpasses all human power. It does not often mean the production of a new article out of materials entirely raw. It generally consists in giving new shapes, new qualities, or new combinations to matter which has already gone through some other artificial process. A cunning worker in metals is the maker of the wares he fashions, though he did not dig the ore from the earth, or carry it through every subsequent stage of refinement. A shoemaker is none the less a manufacturer of shoes because he does not also tan the leather. A bureau is made by the cabinet-maker, though it consists in part of locks,, knobs, and screws, bought ready made from a dealer in hardware.

The meaning of the statute is perfectly clear. The legislature understood the words it was using. A tax was laid upon dealers, that is upon 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 added taxing the manufacturers themselves wherever the goods manufactured were sold at a store separate from the workshop, but by express words exempting them in all other cases. These parties are not in any category which can make them liable.

The propriety of taxing all who are able to pay taxes, and thus dividing as equally as possible the pressure of the public burdens, is very earnestly urged. But that is a consideration which can have no weight against the words of a statute. The people have consented to tax themselves only through their representatives annually elected. The power has not been intrusted to us.

Judgment reversed and judgment here in favour of the defendants below.