P. L. 215.

What kind of se

in Philadelphia.

6 March 1878 § 1. any mechanic's claim, by reason of the fourth section of the act approved the 1st day of August, Anno Domini 1868, (g) entitled "A supplement to an act relating to the liens of mechanics and others upon buildings, so far as refers to the city curity to be given, of Philadelphia, providing for the speedy trial of certain claims," shall be a bond and warrant of attorney in double the amount of the claim, to be executed by the defendant or defendants in said claim, and by one surety to be approved by the said court, who shall be an owner of real estate worth over and above all incumbrance, double the amount of said claim, upon which bond judgment shall be immediately entered in said court: Provided, however, That the lien of said bond shall be confined to the particular real estate offered and approved by the said court as security.(h)

Ibid. § 2. Remedy, after entry of security.

Ibid. § 3.

On money being paid into court,

82. The remedy for the recovery of said claim for which security has been entered as aforesaid, shall be by writ or writs of scire facias thereon, in the manner now prescribed by law, and upon final judgments thereon, execution by writ of levari facias, shall immediately issue against the real estate so substituted as security for the collection of the amount of said judgment.(i)

83. In the event of the money being paid into court, by reason of the said further section of the said act, approved August 1st, 1868, a suit in the nature of a feigned issue may be ordered by the court, upon the application of any person feigned issue to be interested, to decide upon the validity of any claim for material or labor furnished to or for such building.

ordered.

8 June 1881 § 1. P. L. 56.

Lien restricted where buildings are erected by contract.

84. All mechanics' liens, for work done or materials furnished for or about the erection or construction of any building, shall have priority of lien upon such building and the curtilage thereto belonging, over any and all mortgages thereon, recorded before the commencement of such building, and granted by the owner or owners to secure an advance or advances of money, knowingly furnished by the mortgagee or mortgagees for the erection of such building, and shall be paid, out of the proceeds of any sale of said property, before such advance-money mortgage, except as to an amount equal to the value of such curtilage or lot of ground immediately prior to the commencement of said building; so that the amount, equal to the value hereby excepted, shall be first appropriated to prior liens and incumbrances, including such advance-money mortgages, before any part thereof shall be applied to the payment of such mechanics' liens, but the proceeds of sale above the value shall be applied to the payment of the mechanics' liens, in preference to such advance-money mortgages: Provided, however, That this act shall not affect liens and incumbrances existing at this date, nor postpone other liens than those of the advance-money mortgages herein described.

out license.

1. Every person who shall deal (k) in the selling of any goods, wares and mer- 7 April 1830, § 1. chandise, wines or distilled liquors, drugs or medicines, [except such as are the P. L. 887. growth, produce or manufacture of the United States,](/) and except such as are Dealers in mersold by auctioneers under licenses or commissions granted to them pursuant to chandise to take law, and by licensed tavern-keepers, shall, on or before the first day of September, one thousand eight hundred and thirty, and on or before the first day of May in each year thereafter, take out from the treasurer of the proper city or county (m) a license for vending such foreign merchandise or liquors, (n) which license shall be in the following form, to wit: " has paid to me for the use of the commonwealth, dollars, which entitles him to wholesale or retail foreign merchandise and liquors, as a wholesale dealer or a retail dealer of foreign merchandise and liquors of the class, within the county of · for one year from the first day of September [or May, as the case may be], one thousand eight hundred and A. B., treasurer of county." Provided always, That the sale of liquors shall not be hereby authorized in measures less than those of one quart, and that nothing

County, ss.

(k) A manufacturing company which opens a store is within the meaning of the acts imposing a mercantile tax. Commonwealth v. Potter, 34 W. N. C. 43. A person engaged in the business of butchering at his slaughter-house on a farm and having no store and not selling at retail is not liable to the payment of the mercantile tax; he is not a "dealer." Commonwealth v. Brinton, 14 C. C. 460.

(1) Extended to all kinds of merchandise; infra 2, 4. (mm) See Commonwealth v. Bacon, 8 S. & R. 135.

Where dealers in leaf tobacco were assessed in one county where they have their warehouse and from which all their sales are made, they are not liable to be assessed in another county where they purchase tobacco and merely have a warehouse to store. Commonwealth v. Teller, 144 P. S. 545.

(n) Brewers, distillers, bottlers, and wholesale and retail dealers in liquors are no longer assessable; the high-license acts as to all such persons have superseded the old system of mercantile assessments. Commonwealth v. Brewing Co., 146 P. S. 642.

P. L. 387.

7 April 1880 § 1. herein contained shall be construed to extend to physicians, apothecaries, surgeons or chemists as to any wines or spirituous liquors which they may use in the preparation or making up of medicines for sick, lame or disordered persons: Provided, That nothing in this act shall be taken or construed so as to require the importer of foreign goods disposing of the same in the form in which said goods are imported to take out a license for vending the same.

Not to apply to physicians or apothecaries.

Nor to importers.

4 May 1841 § 10. P. L. 310.

Act extended.

Classification.

13 April 1866 § 1. P. L. 104.

cations.

2. The several provisions now in force of the act of the fourth of March, one thousand eight hundred and twenty-four, entitled "A supplement to the act entitled 'An act laying a duty on the retailers of foreign merchandise,'" and the several provisions of the seventh of April, one thousand eight hundred and thirty, entitled" An act graduating the duties upon wholesale dealers and retailers of merchandise, and prescribing the mode of issuing licenses and collecting duties," except so much thereof as may be hereby altered or supplied, shall be and the same are hereby extended and applied to all persons engaged in the selling or vending of goods, wares, merchandise, commodities or effects, of whatsoever kind or nature; and all such sellers or vendors shall be classed and required to pay annually, for the use of the commonwealth, for their respective licenses, as follows, viz. :

Those who are esteemed and taken to make and effect annual sales to the amount of three hundred thousand dollars and upwards, shall constitute the first class, and pay two hundred dollars;

Those to the amount of two hundred thousand, and less than three hundred thousand, the second class, and pay one hundred and fifty dollars.

Those to the amount of one hundred thousand, and less than two hundred thousand, the third class, and pay one hundred dollars;

Those to the amount of eighty-five thousand, and less than one hundred thousand dollars, the fourth class, and pay eighty dollars;

Those to the amount of seventy-five thousand, and less than eighty-five thousand dollars, the fifth class, and pay sixty dollars;

Those to the amount of sixty, and less than seventy-five thousand dollars, the sixth class, and pay fifty dollars;

Those to the amount of fifty thousand, and less than sixty thousand dollars, the seventh class, and pay forty dollars;

Those to the amount of forty thousand, and less than fifty thousand dollars, the eighth class, and pay thirty dollars;

Those to the amount of thirty thousand, and less than forty thousand dollars, the ninth class, and pay twenty-five dollars;

Those to the amount of twenty thousand, and less than thirty thousand dollars, the tenth class, and pay twenty dollars;

Those to the amount of fifteen thousand, and less than twenty thousand dollars, the eleventh class, and pay fifteen dollars;

Those to the amount of ten thousand, and less than fifteen thousand dollars, the twelfth class, and pay twelve dollars and fifty cents;

Those to the amount of five thousand, and less than ten thousand dollars, the thirteenth class, and pay ten dollars;

Those to an amount less than five thousand, the fourteenth class, and pay seven dollars.

3. In addition to the present classification of licenses of vendors of merchandise, all dealers who are esteemed and taken to effect annual sales to the amount of five Additional classifi- hundred thousand dollars shall constitute class A, and pay three hundred and fifty dollars; those to the amount of one million of dollars, class B, and pay four hundred and fifty dollars; those to the amount of two millions of dollars, class C, and pay six hundred dollars; those to the amount of three millions of dollars, class D, and pay eight hundred dollars; those to the amount of four millions of dollars, class E, and pay nine hundred dollars; those to the amount of five millions of dollars, class F, and pay one thousand dollars.

22 April 1846 § 11. P. L. 489.

Dealers in domes tic goods.

4 March 1824 § 3. 8 Sm. 201. License for each store.

7 April 1830 § 6. P. L. 390.

4. All dealers in goods, wares and merchandise, the growth, product and manufacture of the United States, and every person who shall keep a store or warehouse, for the purpose of vending and disposing of goods, wares and merchandise, where such person is concerned or interested in the manufacture of such goods, wares and merchandise, shall be classified in the same manner, and required to pay the same annual tax and license fee as is provided and required in relation to foreign merchandise.

5. If any person or persons shall have more than one store, in which merchandise is vended, such person or persons shall be required to take out a license for each and every store.

6. And any person commencing retailing after the time at which licenses are issuable under this act shall take out a license from that time until the next yearly For fractional part issuing thereof, for which period he shall pay at the rate of twenty dollars for the whole year.

of year.

4 March 1824 § 5. 8 Sm. 201.

Exonerations.

7. No person thus commencing for a fractional part of a year shall be exonerated from paying the full amount for a license who does not, previous to or within one month after such commencement, apply for and take out a license according to

law.

5 June 1883 § 1. P. L. 87.

8. Every individual or copartnership, who shall engage in the business of manufacturing or vending nostrums or patent medicines, of whatever class or character, shall, for the purpose of taxation, be deemed and taken to be dealers in merchan- Dealers in patent dise, and shall be classed and rated for a yearly license in the same manner except medicines. as is hereinafter provided, as other dealers in merchandise are now by law classed and rated: Provided, That nothing herein contained shall be so construed as to exempt any manufacturer of nostrums or patent medicines, from the payment of the proper license fee, or any part thereof, on the ground that he is selling goods of his own manufacture, from the place where the same were manufactured.(0)

10 May 1898. P. L. 35.

9. Hereafter every person, whether principal or agent, not engaged in permanent business in any city, borough or township of this commonwealth, but entering into, beginning or desiring to begin, a transient retail business in such city, borough or Transient retailers. township for the sale of any goods, wares or merchandise whatsoever, whether the same shall be represented or held forth to be bankrupt, assignees, or about to quit business, or of goods damaged by fire, water or otherwise, or by any attractive or conspicuous advertisement whatsoever, shall take out a license for the same from the proper authorities of the said city, borough or township. The amount of such license in any city or borough shall be fixed by ordinance, duly passed by the council of such city or borough, and the amount of such license in any township shall be fixed by the county treasurer and to be paid into the school fund of such township to be used for school purposes, which license shall not be less than twenty-five dollars, nor exceed the sum of one thousand dollars per month; said license to be renewed monthly during the continuance of said sales, and upon failure of said Failure to procure person or persons so to secure license, he or they shall be fined in a sum not less license. than one hundred dollars, to be collected as all other fines are by law collectible, and in default of payment of said fines and costs, to be imprisoned in the jail of said city or county for a period not exceeding thirty days.(p)

4 May 1889 § 2. P. L. 66.

10. Any person failing to take out a license, or refusing to pay the license tax required by this act, or who shall violate any of the provisions thereof, shall on conviction be fined not less than one hundred dollars, and in default of payment Penalty. thereof, together with costs, be imprisoned in the city or county jail not exceeding thirty days.(q)

11. All general laws or parts of general laws inconsistent herewith are hereby repealed.

II. Exceptions.

Ibid. § 3.

Repealing clause.

4 May 1841. P. L. 810.

12. No person whose annual sales do not exceed one thousand dollars, and no feme sole trader or single woman whose annual sales do not exceed two thousand five hundred dollars (vendors of wines or distilled liquors excepted), nor any Who not required importer of foreign goods, wares, or merchandise, who may vend or dispose of the to take out license. same in the original packages, as imported, nor any person who may vend or dispose of articles of his own growth, produce or manufacture, shall be required to take out a license under this act.

13. Mechanics who keep a store or warehouse at their own shop or manufactory, 22 April 1846 § 11. for the purpose of vending their own manufactures exclusively, shall not be required to take out any license.(r)

(0) Dealers in patent medicines were held liable under the act of 1849. Laffer's Appeal, 34 L. I. 283. Under what circumstances an injunction will not be granted to restrain the infringement of a trademark used upon the labels of compound medicines. Desmond's Appeal, 103 P. S. 126.

(p) This is an amendment of the act 4 May 1889, §1, P. L. 66.

(4) Under this act, a justice of the peace has no jurisdiction of an action for the penalty; the penalty must be recovered by indictment in the quarter sessions. Stroudsburg Borough v. Brown, 11 C. C. 272.

(r) A manufacturer or mechanic is not required to take out a license, under this section, unless he keep a store or warehouse, away from his manufactory, for the sale of the wares in the manufacture of which he is concerned. Thus, a tanner who purchases hides, manufactures them into leather, and sends the leather to a commission-merchant for sale, is not required to take out a license. Commonwealth v. Campbell, 33 P. S. 380. Nor is a dealer in live stock. Commonrealth v. Evans, 32 Pitts. L. J. 307. Nor a manufacturer of locomotives who sells them only at his manufactory. Norris v. Commonwealth, 27 P. S. 494. And see Campbell v. Campbell, 26 L. I. 261. Millers who manufacture flour and feed from grain purchased for that purpose, and sell the same at their mill, and other places not a warehouse of their own, are not taxable. Lamon v. Parton, 2 Luz. L. Reg. 259. But see Commonwealth v. Wilson, 1 Pears. 322. A miller

P. L. 489. Manufacturers.

can only be assessed as a dealer. Commonwealth v. Herr, Ibid. 328. But a person engaged in the sale of goods of his own manufacture, who also sells articles of domestic manufacture, to an amount less than $1000, not manufactured by him, or at his shop, is taxable under this act. Osborn v. Holmes, 9 P. S. 333. See Cases of Mercantile Taxes, 1 Phila. 449. Delaware County v. Dupont, 38 L. I. 65. Commonwealth v. Farrall, 2 Chest. Co. R. 386. Crist v. Morris, 2 W. N. C. 620. See infra, pl. 15. Paper-hangers who hang paper taken from their own store are liable for mercantile tax. The paper hung by them is a sale within the act. Commonwealth v. Frank, 2 C. P. R. 25.

A butcher who sells meat slaughtered by himself is not liable. Commonwealth v. Dinkelberg, 2 Chest. 384. Even when sold from the stalls of a markethouse or from his wagon. Commonwealth v. Islett, Ibid. 385. Nor butchers who, having no meat-stores, sell meat of their own killing at their slaughterhouse, or in the public market, or from their wagons. Commonwealth v. Money, 1 Montg. 58. But if in addition they deal in cured or salted meats not of their own killing, they are liable. Commonwealth v. Finnel, Ibid. 60; 14 Luz. 239.

A butcher who sells meat to his customers from a wagon is liable to the mercantile tax, though he has no other place of business than his slaughter-house. Commonwealth v. Melley, 11 Luz. L. Reg. 108; contrà Givler's Appeal, 12 W. N. C. 236. One having a meat-store apart from his slaughter-house where he sells meat, is liable. Commonwealth v. Beener, 1

27 Feb. 1868 § 1. P. L. 43.

dence.

14. The true intent and meaning of the eleventh section of an act, entitled "An act to provide for the reduction of the public debt," approved April twenty-second, Sufficiency of evi- Anno Domini one thousand eight hundred and forty-six, is hereby declared to be a manufacturer or mechanic, not having a store or warehouse apart from his manufactory or workshop, for the purpose of vending goods, such manufacturer or mechanic shall not be classified or required to pay the annual tax and license as is now required in relation to foreign dealers, and that an affidavit before an alderman or justice of the peace, or any person authorized by law to administer an oath or affirmation, setting forth the fact that such manufacturer or mechanic has not a store or warehouse apart from his manufactory or workshop, shall be sufficient evidence for the appraiser of mercantile tax not to so classify said manufacturer or mechanic: Provided, That any person swearing falsely in relation to any matter provided for in this act shall be deemed guilty of perjury, as if said oath had been taken in any legal proceeding.

9 April 1870, § 1. P. L. 59.

of own manufac

15. Manufacturers and mechanics, who shall sell goods, wares or merchandise, other than their own manufacture, not exceeding the sum or value of five hundred Selling goods not dollars per annum, shall not be classified or required to pay any annual tax or license fee; but if such sales shall exceed the sum or value of five hundred dollars per annum, as aforesaid, they shall be classified in the same manner, and required to pay the same annual tax as is now required to be paid by dealers in foreign merchandise.

ture.

18 April 1878 § 5. P. L. 28. Farmers selling their own produce,

17 May 1883 § 1. P. L. 31.

to dealers.

16. Farmers selling their own produce, or occupying a stall or stalls, or sidewalk or part thereof, in any of the markets of a city of the first class, shall not be subject to classification or taxation for mercantile purposes. (8)

17. It shall be unlawful for any city, borough or municipality to levy any license or mercantile tax upon persons taking orders for merchandise by sample, from Sellers by sample dealers, for individuals or companies who pay a license or mercantile tax upon their chief places of business. It shall also be unlawful for any city, borough or municipality to collect such license or mercantile tax hereafter levied by virtue of any ordinance of any city, borough or municipality: Provided, That nothing in this act shall authorize such person to sell by retail to others than dealers or merchants. (t)

18. The several cities and boroughs of this state shall have power to tax or license foreign dealers in merchandise, or their agents, having no permanent place of business in any such city or borough, but temporarily engaged in selling and disposing of merchandise, either by wholesale or by retail, to an amount not exceeding the local taxes or licenses imposed on resident merchants engaged in a like business: Provided, That the provisions of this act shall not apply to sales by sample. Cities and boroughs shall have power to enforce the provisions of this act by providing proper penalties by ordinance duly enacted.(u)

III. Mercantile appraisers.

19. For the purpose of securing the tax now authorized by law to be assessed on wholesale dealers and retailers of merchandise, the courts of common pleas of the counties of Allegheny, (v) and Philadelphia respectively, (w) are hereby authorized and empowered to appoint, within thirty days from the date of the passage of this act, and annually in the month of January thereafter, a person of suitable qualifications in each of said counties, who shall be styled the "Appraiser of Mercantile Taxes; " whose duty it shall be to ascertain and assess all the dealers(x) as aforesaid, in accordance with the provisions of the several acts of assembly regulating the tax upon vendors of merchandise; and the said appraiser shall take an oath or affirmation to discharge his duties faithfully and impartially.

20. For the purpose of better securing the taxes now required by law to be paid by dealers in merchandise, the provisions of the 5th, 6th, 7th and 8th sections of the act of 16th April 1845, entitled "An act to increase the revenues and

Montg. 44. Von Storch's Appeal, 1 Lack. L. Rec. 442. So dealers who retail meats not slaughtered by themselves are liable. Commonwealth v. Beckings, 2 Chest. 386; 1 Montg. 43. A produce commission merchant is a factor, employed to sell products which are sent to him for sale, in which he has a special property. He is taxable as a vendor of merchandise, but is not required to take out a license as a merchandise broker. Hunter's Appeal, 16 W. N. C. 478. A dealer in live stock, such as horses and cattle, is not liable to mercantile tax. Commonwealth v. Evans, 2 Chest. 383; 15 P. L. J. 307.

(s) A farmer who sells the product of his own farm, and occasionally that of a neighbor, is not taxable as a "dealer." Barton v. Morris, 1 W. N. C. 543.

(t) The act 12 April 1851, §§ 9, 10, P. L. 489, required a license for $300 to non-residence dealers to sell by sample within the state, and the act 9 April

1864, § 1, P. L. 375, imposed a fine of $300 and thirty days' imprisonment for selling without such license. See also acts 6 April 1852, § 10, P. L. 272, and 12 April 1867, P. L. 1200.

Such legislation has, however, been declared unconstitutional. See Ward v. Maryland, 12 Wall. 418, and Wolf v. Marks, 1 Leg. Chron. 69. And in the late case of Robbins v. Shelby Co., 120 U. S. 489, the supreme court of the United States decided that interstate commerce cannot be taxed at all by a state, even though the same amount of tax should be laid on domestic commerce or that which is carried on solely within the state. See also Corson v. Maryland, Ibid. 502.

(u) This act does not apply to citizens of this state. Borough v. Brode, 2 C. C. 221. (v) See infra 21.

(w) Extended throughout the state: infra 20. (x) And brokers: see tit. "Brokers."