The appellant at this argument alleged that [as Exhibits A and B were not actually as the statement did not have attached to it the exhibits which were referred to in the body of the statement as Exhibits A and B, and which contained the account upon which the suit was based, the statement of cause of action was therefore defective. Counsel for the appellee stated that the failure to attach the exhibits was a mere inadvertence, and he then made a motion to be permitted to add the exhibits to the statement already filed. Although the matter was argued in September no order of the court was made until the 2d of February following, when the court directed that attached to the affidavit. Immediately upon the cause being called for argument, the plaintiff asked leave to attach these exhibits to the statement, and the court in its order permitted the amendment to be made. We think this is not a matter of substance, but is largely formal and technical. The basis of the action is unchanged, and the exhibits add only details or items. The appellant also complains that there was great delay in the amendment. This is not properly chargeable to the plaintiff below. The writ was issued June 22, 1917, motion to quash filed August 31, 1917, the argument had early in Septem 1918. We feel that the court committed no error therefore in allowing the amendment attaching the exhibits to the statement of claim, inasmuch as they were referred to in the original statement. "If the plaintiff within ten days attach Ex-ber, and the decision of the court February 2, hibits A and B to the statement of claim and otherwise amend the statement as herein indicated, the rule to quash should be discharged." Under this permission of the court an amended statement was filed containing Exhibits A and B. The amended statement differed from the original in that it alleged 965. [2] The first, second, fifth, and sixth assignments of error relate to the failure to attach the exhibits to the statement of claim. The appellant complains that this failure was fatal to the attachment, and that it should have been quashed. In support of this contention the case of Schneck v. Freeman, 55 Pa. Super. Ct. 38, is cited. In that case neither in the original affidavit filed nor in the amended affidavit was there any clear statement of the goods sold by the plaintiff to the defendant, and the court held that in the absence of a specific statement of the nature of the plaintiff's claim there could be no recovery. It is a well-settled rule in Pennsylvania that as to matters of substance there can be no amendment, but in merely formal matters amendments to affidavits showing cause of action ha've been repeatedly allowed. By inadvertence, in the present case, the exhibits referred to in the original statement It is also alleged that as the amended statement contains a change in the rule to be apthis is a material amendment and it should not plied relating to the measure of damages, have been permitted. There has been considerable difference of opinion in the various jurisdictions in America as to this question. Our own cases seem to indicate that an amendment of this character can be allowed where it does not introduce another cause of controversy, or where the merits of the case cannot be reached without such an amendment. In Rodrigue v. Curcier, 15 Serg. & R. 81, the fact that the merits of the case could not be reached without an amendment led the court to permit such an amendment, and the case has been followed by many of the subsequent cases. See, also, Cassell v. Cooke, 8 Serg. & R. 268, 11 Am. Dec. 610. In the case of Commonwealth, to Use, v. Baxter, 235 Pa. 179, 84 Atl. 136, 42 L. R. A. (N. S.) 484, the late Mr. Justice Elkin discussed the question quite fully. In that case the question arose as to the liability on a bond given to dissolve a foreign attachment, and in that respect the case differed from the case at bar. After discussing some of the earlier authorities, the court said: "According to these tests, it may be accepted as the settled rule in Pennsylvania that an amendment of the ad damnum clause, without changing the ground of recovery relied on, does not introduce a new cause of action." A little later in the opinion the court further said: "In none of our cases has it been held, as it has been in some other jurisdictions, that a change in the measure of damages alone, disconamounted to the introduction of a new cause of nected with any other change in the pleadings, action." In the present case the amended statement filed does not change the nature of the ES-EXEMPTIONS-MANUFACTURING ESTAB- cause of action in any way, nor destroy the | 2. MUNICIPAL CORPORATIONS 967(1)—TAXidentity of the original cause of action. It reduces the quantum of damages claimed because the original statement suggests a speculative element of damages which could not be permitted. The owner of a manufacturing plant, who has leased it to another and derives his revenue from the rent received under the lease, not be [3] The third assignment of error raises ing "actually engaged" in the manufacturing the question as to whether the plaintiff can business, is not entitled to a tax exemption unattach in its own hands a debt due the deder a city ordinance passed under Acts 1912, c. fendant. The learned counsel for the appel-32, and authorizing the appeal tax court, on the lant argues that while this question has been application of one actually engaged in the manudiscussed in various opinions of this court for facture of articles of commerce, to abate mumany years, it has never been properly de- nicipal taxes on manufacturing machinery. cided or decided in a case where the question is squarely raised. We cannot agree that this question has not been definitely ruled heretofore. In the case of Coble v. Nonemaker, 78 Pa. 501, the court said: "A person may attach goods in his own hands belonging to a defendant, or money which he himself owes to a defendant." This is followed by the decision in Hanscom v. Chapin, 27 Pa. Super. Ct. 546, where a foreign attachment was issued and the plaintiff attached, not only goods, but money in his own hands, and the court sustained the attachment. There is no difference in principle between the attachment of goods and of money, but that there may be no further misapprehension as to the propriety of the practice, we now hold that plaintiff in a foreign attachment may attach in his own hands moneys belonging to defendant. We do not discuss the other questions raised, as they were not suggested in the court below on the motion to quash. The jurisdictional fact as to the nonresidence of the plaintiff is set forth in the præcipe for the issuance of the attachment. This was followed by the same averment contained in the amended statement of cause of action. Were we therefore disposed to consider this question we would hold that under the circumstances the averment was sufficient. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Actually Engaged.] Appeal from Baltimore City Court; Chas. W. Heuisler, Judge. Proceeding by the Felippe A. Broadbent Mantel Company of Baltimore City against the Mayor and City Council of Baltimore and the Judges of the Appeal Tax Court of Baltimore City for a tax exemption. The refusal of the application was, on appeal, affirmed by the Baltimore City Court, and from such affirmance, applicant appeals. Affirmed. Argued before BOYD, C. J., and BRISCOE, BURKE, THOMAS, PATTISON, URNER, STOCKBRIDGE, and CONSTABLE, JJ. Randolph Barton, Jr., of Baltimore (James J. McGrath, of Baltimore, on the brief), for appellant. R. Contee Rose, Asst. City Sol., of Baltimore (S. S. Field, City Sol., of Baltimore, on the brief), for appellees. PATTISON, J. Section 7 of Ordinance 140, passed by the mayor and city council of Baltimore, approved on July 6, 1912, pro vides that: "The appeal tax court is authorized and di The other assignments are overruled, and rected upon the application, as hereinafter prothe judgment is affirmed. vided, of any individual, firm or corporation, actually engaged in the business of manufacturing articles of commerce in the city of Baltimore, to abate any and all personal taxes which may be levied hereafter by authority of the mayor and city council of Baltimore for any of the corporate uses thereof, upon any mechanical tools or implements, whether worked by hand or by steam, or other motive power, or upon any machinery or manufacturing apparatus, owned by such individuals, firm or corporation and actually employed and used in the business of manufacturing articles of commerce in the said city: Provided, that this section 204(2)-EXEMPTIONS-BUR- shall not be construed as exempting any manu FELIPPE A. BROADBENT MANTEL CO. (Court of Appeals of Maryland. March 3, 1. TAXATION DEN OF PROOF. 1919.) facturing apparatus, tools or machinery used A claim for a particular exemption from tax- in the business of manufacturing or generatation cannot be sustained, unless it is shown ing illuminating gas for sale, or any manufacto be within the spirit as well as the letter of turing apparatus, tools or machinery used in the the law, and the party asserting the exemp- business of generating or producing for sale tion must show that the power to tax in the electric light or electricity 'to be used as moparticular case has been clearly relinquished. tive power, or for any other purpose, or any For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes manufacturing apparatus, tools, type or ma- [ chinery used in the preparation, printing or issuing by the printers or publishers thereof, of any daily journal or other periodical publication." This ordinance was passed in pursuance of Acts 1912, c. 32, by which the mayor and city council of Baltimore were authorized and empowered: "To provide by general ordinance, whenever it shall seem expedient for the encouragement of the growth and development of manufactures and manufacturing industry in the said city, for the abatement of any or all taxes levied by authority of the said mayor and city council of Baltimore, or by ordinance thereof, for any of the corporate uses thereof, upon any or all personal property, of every description owned by any individual, firm or corporation in said city, and property subject to valuation and taxation therein, including mechanical tools or implements, whether worked by hand or steam or other motive power, machinery, manufacturing apparatus or engines, raw materials on hand, stock in trade, bills receivable, and business credits of every kind, which said personal property shall be actually employed or used in the business of manufacturing in said city: Provided that such abatement shall be extended to all persons, firms and corporations engaged in the branches of manufacturing industry proposed to be benefited by any ordinance passed under the provisions of this paragraph of this section." Section 1. By an agreed statement of facts found in the record, the appellant, a corporation, incorporated under the laws of this state, is the owner of a plant, mechanical tools, and implements, which it for eight years prior to March 22, 1912, had used and employed in the business of manufacturing articles of commerce in the city of Baltimore, during which time it had enjoyed an exemption from taxation thereon, but on March 28, 1912, said plant, tools, and machinery, as well as the building in which they were located, were leased to others; that the appellant since leasing said property "has not directly or indirectly operated this or any other plant for its own account, and has not been actually engaged in manufacturing, but has derived its revenue from the rent received under the lease." of that court affirming the action of the appeal tax court. [1] The question here presented involves the construction of the ordinance, above quoted. The fundamental rule governing the con. struction of exemptions is that the particu lar exemption claim cannot be sustained, unless it is shown to be within the spirit as well as the letter of the law (United Railway Co. v. Baltimore City, 93 Md. 634, 49 Atl. 655, 52 L. R. A. 772), and the party asserting the exemption must show that the power to tax in the particular case has been clearly relinquished," and as this court has said in Appeal Tax Court v. Rice, 50 Md. 312: "If this has not been done, * the question whether or not the exemption has been granted must be resolved in favor of the state." The court said in Sindall v. Baltimore City, 93 Md. 530, 49 Atl. 646: "The taxing power is never presumed to be surrendered, and therefore every assertion that it has been relinquished must, to be efficacious, be distinctly supported by a clear and unambiguous legislative enactment. To doubt is to deny an exemption." The exemption, when found to exist, shall not be enlarged by construction. Cooley on Taxation (2d Ed.) p. 205. As disclosed by the record, the appellant company was denied the exemption sought, on the ground that it was not actually engaged in manufacturing. The appeal tax court took the position that, under the ordinance, the exemption was only to be granted to those actually engaged in manufacturing, and, as the appellant was not so engaged it was denied the exemption asked for. In the case of Portsmouth Shoe Co. v. Portsmouth, 74 N. H. 222, 66 Atl. 1045, the statute there under consideration provided that "Towns may by vote exempt from taxation, for a term not exceeding ten years, any manufacturing establishment proposed to be erected or put in operation therein, and the capital to be used in operating the same, unless such establishment has been previously exempted from taxation by some town." In that case, the Gale Shoe Manufacturing Company, a Massachusetts corporation, wish The appellant made application to the ap-ed to go to Portsmouth and there engage in peal tax court of Baltimore city for an exemption of its said property for the year 1914, but that court declined to abate the assessment thereon for said year "on the ground that the applicant plaintiff was not operating the said machinery nor actually engaged in manufacturing, but derived its revenue from the hiring of its plant and machinery to others." Upon appeal to the Baltimore city court the action of the appeal tax court was affirmed, and this appeal is taken from the order the manufacture of shoes, and the city council of Portsmouth voted to exempt that corporation from taxation, for 10 years, upon "the manufacturing establishment, factory, and plant occupied by it, with its property and assets, and the capital to be used in operating the same." The Gale Company thereafter leased for the term of 5 years the shoe factory and machinery owned by the Portsmouth Shoe Company and agreed to pay all taxes assessed upon the leased premises. The assessors levied a tax upon the leased property against the Portmouth Shoe Com pany, and that company sought an abate his tools and machinery to others and leased ment of the assessment. The court in that case said: "Did the Legislature intend to confer authority upon towns to exempt property owned by A., but leased to B., and used by the latter in his exempted establishment?" The court, quoting from the earlier case of Boody v. Watson, 63 N. H. 320, said: "That taxation being the rule and exemption the exception, the exemption is to be strictly construed, and will never be permitted to extend, either in scope or duration, beyond what its terms clearly require. * It is certain to them the lot and building. They continued the same business. Relator claimed exemption for the lot and building, because the property was still employed in the production of machinery. The court there said in discussing the contention of the relator that "The object of the article in the Constitution is to encourage the production of certain articles mentioned in the article. The exemption was intended to induce the owners of capital and machinery to employ them in the manufacture of said articles. "The exemption was based upon the ownership or interest in the capital, machinery, and property employed in the enterprise and an interest in the products. It is addressed to manufacturers-those who would have an interest, by the investment of capital, in the products of manufacturing establishments. carrying on a manufacturing establishment cannot, by any possible reasoning, convert it into capital or property invested or employed in the industry conducted by his tenants." that the language of the statute does not clearly disclose an intention to allow the exemption of one man's property from taxation, because it is used by another under some contractual arrangement between them, in a business which enjoys an exemption. If the mere use of the property, without regard to its ownership, "The relator has no interest in the manufachad been intended to be the test to determine ture of the machinery by his tenants. He is an whether it could be exempted under the statute, utter stranger to the enterprise, and has no it would be natural to expect more explicit lan- capital invested in it. He is the lessor of the guage indicating such a purpose. The 'manu- property in which the manufacture is conductfacturing establishment' referred to in the stated, and because it is leased for the purpose of ute means, or relates to, the property of the proprietors of the industry, who receive the benefit conferred by the statute, and not the property of others having no interest in the prosecution of the business. The city council of Portsmouth had no power to vote to exempt the property of the plaintiff upon the condition that it should lease it to another manufacturing mouth Shoe Co. v. Portsmouth, supra, nor the company. * A construction of the stat- constitutional provision in the case of State ute supporting such a transaction would be an v. Board of Assessors, supra, specifically reencouragement, not of manufacturing indus- quires that the person, firm, or corporation, tries, which is the fundamental purpose of the applying for exemption of its property, shall statute (Opinion of the Court, 58 N. H. 623), but be actually engaged in the industry or busiof the business of leasing manufacturing prop-ness intended to be encouraged by such staterty. As said by the court in County ute or constitutional provision. Nevertheless v. Bell, 43 Minn. 344, 345 [45 N. W. 615]: "The the court in each of those cases, after statlessors claiming the benefit of the exemption in * # Neither the statute in the case of Ports this case are mere private owners of the prop-ing and considering the object and purpose erty, and the exemption is not for the lessees, of the statute or constitutional provision, * * * and it can only be claimed arguendo to construed it to apply only to those who are be for their benefit in an indirect and collateral engaged in such industry or business and inway.' Evidently, under the usual rules for the terested in the products of such business, and construction of tax-exempting statutes, the leg- that it did not apply to one who leased or islative purpose to relieve property from the rented his property to be used or employed tax burden cannot be found by indirection and by another. surmise. The plaintiff's property was legally taxable." It is admitted by the agreed statements of facts in this case, that the appellant, since leasing the property sought to be exempted from taxation, in March, 1912, "has not directly or indirectly operated this or any other plant for its own account, and has not been actually engaged in manufacturing, but has derived its revenue from the rent received under the lease." With this admission, can it be said that the appellant is entitled, under the provisions of the ordinance, to have the above mentioned property exempted from taxation? By the ordinance: "The appeal tax court is authorized and directed upon the application ** of any individual, firm or corporation, actually engaged in the business of manufacturing articles of commerce in the city of Baltimore, to abate any the profits of the business for its compensation, and was in no wise interested in the products of such business, and assumed no risk in connection therewith. The object of the ordinance was to encourage by manufacture the production of articles of commerce and to induce individuals, firms, and corporations to engage in the business of manufacturing such articles. Those who drafted and passed this ordinance confined its application to individuals, It is clear from the language employed firms, and corporations actually engaged in that the application for exemption from taxathe manufacturing business. This was no tion of the property mentioned in the ordi- doubt done to exclude from the benefit of nance must be made by the owner of such the ordinance those that were in some indiproperty, and to entitle him to such exemp-rect or remote way connected with said bustion such owner must be "actually engaged in the business of manufacturing articles of commerce in the city of Baltimore," and further that said mechanical tools and impleents, etc., be actually employed and used in the business of manufacturing said articles of commerce in said city, The application in this case was made by the owner of the property, but at that time it was not actually engaged in the business of manufacturing articles of commerce, and this fact is admitted by it. So long as the appellant was actually engaged in the business of manufacturing articles of commerce, it was entitled to have its mechanical tools and implements, etc., actually employed and used in the business of manufacturing exempted from taxation; but when it ceased to be actually engaged in manufacturing, it was no longer entitled to such exemption. It thereafter derived its revenue-a stipulated sum-from the rent received from the plant, tools, and machinery. It did not look to iness, as the appellant in this case. The appellant, although receiving the inducement and encouragement granted by the ordinance, discontinued the business of manufacturing articles of commerce, which was more or less uncertain in its profits and returns, and accepted in lieu thereof, from one willing to embark in said business, with all its risks and uncertainties, a stipulated sum as rent, not only for the mechanical tools, implements, machinery, and manufacturing apparatus, employed in said business, but also the building and premises in which the business was conducted. [2] To hold that the property in this case is exempt from taxation under this ordinance would, in our opinion, not only be enlarging the exemption created by the ordinance, but to so hold would be against the letter as well as the spirit of the ordinance. We will therefore affirm the order of the lower court. Order affirmed, with costs. |