Commonwealth v. Givin

Opinion by

William W. Porter, J.,

This proceeding is by appeal to the court of common pleas from the assessment of the mercantile appraisers of Philadelphia county. The defendant is the proprieter of an eating house or restaurant. Judgment was entered for want of sufficient affidavit of defense. The affidavit raises only the following contentions : (1) that the act of April 10, 1849, “ is not in force for the reason that the purposes for which it was passed do not now exist; ” (2) that under section 20 of said act, taxes are only to be “assessed upon restaurants or other hotels wherein beer, ale, or other malt liquors are sold; ” (3) that “ the appraisers of mercantile taxes for the county of Philadelphia have not complied with the said section 23 of the said act; ” (4) that the act of 1849 is repealed by the act of May 2, 1899, and (5) that the defendant is a manufacturer, and therefore exempt.

1. The first question raised is one which should be referred to the legislature rather than to the court. While the act stands unrepealed, as it is a revenue measure, the courts must regard it as still serving its measure of usefulness.

2. The second question is explicitly answered by the plain language of the act which applies to “ eating houses, restaurants and oyster cellars wherein .... oysters or other refreshments of any kind whatsoever are dressed, prepared or sold,” as well as to “ beer houses.”

3. The allegation that the appraisers have not complied with the requirements of the act prescribing the taking of an oath is too indefinite to raise the semblance of a defense in a suit for the tax levied, especially when made in reply to the averment of the statement that “ as required by law the said mercantile appraisers furnished to the treasurer of the city and county of Philadelphia, a certified list of the keepers of eating houses so ascertained and assessed as made by them pursuant to the provisions of the act of assembly in such case made and provided.” The affidavit does not so much as assert that the appraisers failed to take the proper oath and fails to indicate wherein they have failed to comply with the said act.

4. The act of May 2, 1899, explicitly is made to apply to retail venders and dealers in goods, wares and merchandise. See sections 1 and 2. It contains no clause expressly referring to the act of 1849, although repealing “ all acts or parts of acts, general, special or local, inconsistent with its provisions.” Through the legislation of the state there is an apparent distinction made between dealers in merchandise and keepers of eating houses. The basis of assessment in the latter cases is different from that of dealers and venders, as shown by many pieces of legislation. There is no such inconsistency between the provisions of the act of 1849, and those of the act of 1899 as results in repeal by the latter under the general clause above quoted.

5. The contention that an eating house keeper is within the category of manufacturers exempted by legislation, we think unnecessary to discuss.

The judgment is affirmed.