Commonwealth v. Childs Dining Hall Co. , 1907 Pa. Super. LEXIS 35 ( 1907 )

Opinion by

Portee., J.,

The Childs Dining Hall Company, the appellant, is a corporation organized for the purpose of operating restaurants or eating houses, under the laws of the state of New Jersey. It has complied with all the laws of this state relative to foreign corporations doing business in the commonwealth. The defendant is now the keeper of seven restaurants in the city of Philadelphia, and the question involved in this appeal is whether the corporation is required, under the law of this state to take out one general license as a restaurant keeper, or seven licenses, one for the privilege of keeping each separate eating house.

The Act of April 10, 1849, P. L. 570, in so far as it relates to eating houses, restaurants and oyster cellars, was not repealed by the Act of May 2, 1899, P. L. 184, and is still in force : Commonwealth v. Givin, 21 Pa. Superior Ct. 401; and the liability of the defendant must be determined under the provisions of the first named statute. There can be no doubt that the provisions of the act of 1849, requiring the taking out of a license and the payment of a license fee for the privilege of keeping an eating house involved an exercise of the taxing powers of the commonwealth, and were not a mere police regulation ; the whole scope and purpose of the statute was to raise revenue.

The statute enacted: “ Section 20. That no person shall hereafter keep any beer house, eating house, restaurant or oyster cellar, .... wherein oysters, or other refreshments of any kind whatsoever are dressed, prepared or sold, without first applying for and obtaining a license from the county treasurer of the proper city or county, and for which the keepers thereof shall pay respectively the sum hereinafter provided.” “Section 21. That the said .... eating houses, restaurants and oyster cellars shall be classed by the appraiser or appraisers of mercantile taxes for the city or county in which the same shall be located, in seven classes, for the privilege of keeping which the keepers shall each pay to the treasurer of the proper county, for the use of the commonwealth, .... for the license winch the said treasurer of the proper counties are hereby required to grant.” “ Section 22. That every such person whose annual sales shall be esteemed and taken to amount to the sum of twenty thousand dollars and upwards, shall be classed in the first class, and pay the sum of two hundred dollars.” Then follow like provisions as to the other classes, fixing the amount to be paid for the license, in the respectivé classes, based on thé amount of estimated sales. “ Section 27. Any person convicted of violating the provisions of the preceding sections shall be fined in a sum not less than fifty, nor more than five hundred dollars for each offense, one-half to be paid to the county treasurer for the use of the commonwealth and the other half to the person or persons who shall prosecute such offender.”

The 20th section makes it unlawful to keep any eating house or restaurant without a license, and the 27th section provides a penalty for any violation of this prohibition. The thing which-is here forbidden is not the dressing nor preparation nor sale.of oysters or other refreshments, but it is the keeping of an eating house or restaurant where these things are done, without a license. The keeping of the eating house or restaurant without a license is unlawful. The 21st and 22d sections provide the mode for ascertaining the amount which the keeper of an eating house or restaurant shall pay for the license to keep the same, fix the character of the license and designate the officer by whom the license shall be issued. The mercantile appraiser is required to classify “ the eating houses, restaurants and oyster cellars ” in seven classes, and the keeper of the eating house, restaurant or oyster cellar is required to pay, for the license to keep the same, a sum based on the classification made by the mercantile appraiser. " The tax which the person obtaining the license shall be required to pay is fixed by the sum which the annual sales, of such persons, shall be esteemed and taken to amount to. The “ annual sales ” here referred to manifestly do not mean all sales made by the person who takes the license, whether in that particular business or some other in which he may be engaged, but, taken in connection with the 'context, they can only refer to the sales made through the eating house or restaurant for which the license is obtained. The classification of an eating house or restaurant is based upon the amount at which the mercantile appraiser estimates the sales of the keeper, as keeper of that eating house or restaurant, and the classification of the eating house or restaurant determines the amount which the keeper must pay for his license.

The amount which the eating house keeper pays for his license is not in the nature of an occupation tax, a fixed charge imposed oil all who follow a certain calling; neither is it a general tax upon the particular business of buying and selling food-stuffs, whether prepared or unprepared for immediate use. When the eating houses and restaurants have been properly-classified, the licensee pays according to the classification. What does he pay for? The statute leaves us in no doubt upon this point. First comes the positive requirement that all eating houses and restaurants shall be classified, in seven classes, and then, in the same sentence, immediately follow the words, “ for the privilege of keeping which the keepers shall each pay to the treasurer of the proper county, for the- use of the commonwealth,” and then follows the provision fixing the amount which each class shall pay. “ The privilege of keeping,” the eating house or restaurant so classified, is all that the keeper has paid for and the only right that he acquires by virtue of his license. The tax upon any given eating house or restaurant is determined by the estimated sales of the keeper thereof, made as the keeper of that eating house or restaurant. There is no provision in the statute which limits the number of eating houses or restaurants which any one person or corporation may keep, but if any one person or corporation keeps two or more eating houses or restaurants the license tax must be paid for each separate establishment, according to the classification required by the act of 1849.

The judgment is affirmed.