decree. It was consented to by the Court and by the counsel on both sides. It cannot be Common Pleas-Equity. doubted that the District Court in bankruptcy had jurisdiction over the whole of the bank September 6, 1883. Hadtner et al. v. City of Williamsport. Liquor license tax-Constitutionality of-Injunction against-Taxing power of cities of the third class-Title of taxing ordinances-Inequality of license taxation-Acts of May 23, 1874, and March 18, 1875. A license to vend liquors is not a contract, but the mere permission of the State to engage in a particular business; it contains no implied guarantee that the State will levy no other tax upon the same business nor increase the amount, for which the license is granted. tax upon a specific industry, for which a license had preWhere, therefore, an ordinance was passed imposing a viously been taken out in conformity to Acts of Assembly, and the amount of the ordinance tax was greater than that paid for the original license: Held, that the ordinance impaired no contract with the State. rupt's estate and was fully authorized to decree C. P. of Lycoming Co. Under Art. ix. § 1, of the Constitution of Pennsylvania, territorial limits, but only upon the same class of subjects. taxes need not be uniform upon all subjects within the An ordinance, therefore, which imposes license taxes, varying in amounts upon different kinds of industries, is not void for want of uniformity. A tax ordinance need not contain in its title the purposes for which the funds so to be raised shall be applied, and the title "An ordinance for the levy and collection of a license tax in the city of Williamsport," is a sufficient title for an ordinance which imposes different taxes upon different species of industries. not necessary that the municipal corporations therein Under the Act of May 23, 1874 (P. L. 230), it is named should first exhaust the general revenue fund raised by a tax on real and personal property under section 1, before proceeding to impose a license tax under ? 4. These grants of taxing power may be used concurrently. An ordinance cannot be judicially declared invalid, because its provisions are impracticable, unjust, and unDecree reversed at the cost of the appellees. equal. The remedy is in the law making, not the law Opinion by GREEN, J. J. P. K. interpreting power. Sur demurrer to bill. Bill in equity, by Geo. Hadtner and others, liquor sellers and brewers, resident in the city of Williamsport, against the said city and its municipal officers, praying for an injunction to restrain the defendants from levying a certain license tax imposed by an ordinance of July 12, 1883, upon all taverns, saloons, liquor sellers, brewers, etc., upon the grounds (1) That said ordinance is unconstitutional. (2) That it is not in accordance with the Acts of Assembly conferring taxing power upon the city of Williamsport. (3) That said ordinance is a direct abuse of said taxing power, being impracticable and unjust. The defendants filed a demurrer to said bill, | dollars, shall pay fifty dollars ($50); exceeding denying the existence of causes for an injunc- one thousand and not exceeding two thousand, tion as set forth above and the jurisdiction of the one hundred dollars ($100); exceeding two Court. thousand and not exceeding three thousand, one hundred and fifty dollars ($150); exceeding three thousand and not exceeding four thousand, two hundred dollars ($200); exceeding four thousand, two hundred and fifty dollars ($250). The material averments of the bill were as follows: The city of Williamsport is a city of the third class, and as such has the following taxing powers by virtue of the Act of May 23, 1874 (P. L. 230). 1. To levy and collect taxes for general revenue purposes, not to exceed ten mills on the dollar in any one year on all the real, personal and mixed property within the limits of said cities taxable according to the laws of the State of Pennsylvania; the valuation of said property to be taken from the assessed valuation of the taxable property therein, made under the provisions of law regulating the same. The complainants were engaged in the business mentioned in section five of said ordinance in the city of Williamsport by virtue of a license that had been duly granted to them in the preceding March by the Court of Quarter Sessions for the space of one year. James Scarlet and R. P. Allen, for complainants. James M. Wood, for the respondents. 4. To levy and collect license taxes on November 9, 1883. THE COURT (after recitauctioneers, contractors, druggists, hawkers, ing the facts). It is clear that the city defenpeddlers, bankers, brokers, pawnbrokers, mer- dant has ample statutory authority to impose chants of all kinds, grocers, confectioners, a license tax, and to enforce its collection by restaurants, butchers, taverns, public boarding-fines and penalties. houses, dram shops, saloons, liquor sellers, bil- The plaintiffs claim that the ordinance comliard tables, bowling alleys and other gaming plained of is unconstitutional as to them, because tables, drays, hacks, carriages, omnibuses, carts, it requires them to pay more money for exerciswagons, street railway cars and other vehicles ing a right duly granted to them as licensed used in the city for pay, lumber dealers, furniture vendors of liquors than they were required to dealers, saddle or harness dealers, stationers, pay at the time such license was granted, and jewellers, livery-stable keepers, pavement stands, thus the obligation of their contract with the real estate agents, express companies or Commonwealth is impaired, contrary to section agencies, telegraph companies or agencies, 17, article 1, of the Constitution. shows, theatres and all kinds of exhibitions for pay, and regulate the same by ordinance. The fallacy of this proposition lies in the fact that the plaintiffs have no contract with the State. On July 12, 1883, it passed an ordinance A license to vend liquors is not a contract but a entitled "An ordinance providing for the levy mere permission to engage in a particular busiand collection of a license tax in the city of ness; it contains no guaranty that the State will Williamsport," which after providing for the im-levy no other tax nor increase the amount named. position of a license tax upon the various occupations mentioned in the Act of May 23, 1874, §4, provided as follows: Section 1. That every person, firm or corporation hereinafter mentioned shall, on or before the first day of August, 1883, and annually each year thereafter, apply to the city controller for a license for the period of one year, and the city controller shall issue such license to the applicant on payment to the city treasurer of the amount fixed by this ordinance: Provided, That any license may be issued for the remaining part of a year up payment of the pro rata of such license tax. Besides, the authority to impose this license tax was given to the cities by the Act of May 23, 1874. The plaintiffs voluntarily accepted their license from the Court of Quarter Sessions with full knowledge of the existence of this statute, and they hold their licenses to-day under a subsequent Act of Assembly, to wit, the Act of 12th April, 1875, which contains no clause repealing any part of the Act under which this license tax is imposed. It is also claimed by the plaintiffs that this ordinance violates section 1, article 9, of the Constitution, which declares that "all taxes shall be uniform upon the same class of subjects Section 5. That all taverns, saloons, liquor within the territorial limits of the authority levysellers, bottling establishments, brewers and ing the same." If the Constitution required that wholesale liquor sellers, shall be and are hereby all taxes shall be uniform on all subjects within classified, and shall pay annually for their the territorial limits levying the same the ordirespective licenses the amount as follows: Every nance in question might be objectionable. tavern, saloon, liquor seller, bottling establish- In Durach's Appeal (12 P. F. S. 491), it was ment, brewer and wholesale liquor dealer, whose held that a tax would not be unconstitutional for annual gross sales shall not exceed one thousand | want of uniformity-"If the taxation is upon all of a class, either of persons or things, it | purposes other than those named in the Act of matters not whether those included in it be one Assembly. It is not to be presumed that this or many, or whether they reside in any particular fund will be unlawfully applied by the municipal locality, or are scattered all over the State." The ordinance complained of fixes a uniform rate of tax on all the different classes it names, and this is all that the Constitution requires. I am of opinion that the ordinance complained of is not unconstitutional. It is claimed by the plaintiffs that this ordinance is not in accordance with the Acts of Assembly conferring taxing power on the city defendant in this: (1) That it pretends to issue a license instead of imposing a tax. (2) In that it does not show that a license tax is imposed for the purposes enumerated in the Act. (3) In treating the funds so raised as part of the general taxation fund to be paid annually after the ordinance goes into effect. (4) In imposing any license or license tax before the general fund raised by the tax on real and personal property shall have been exhausted. The first and third objections stated are mere assumptions on the part of the plaintiffs not warranted by anything contained in the ordinance or in any averments in the bill. The statute authorizes the levying of a license tax, the ordinance provides for the levying of a license tax. It will be time enough to meet the question as to whether such taxes must be levied annually when it is sought to apply this ordinance to any subsequent year. As to the second objection above stated it is to be noted that section 3 of the Act of 23 May, 1874, supra, provides, inter alia, that no bill shall be passed containing more than one subject which shall be clearly expressed in its title. 66 authority. It, perhaps, would not be objectionable if this title was enlarged as suggested, but I cannot see how that would keep the fund to be raised thereby any more sacred than it now is. It cannot be said that such amendment to the title would give the tax-payer any better notice of the subject of the ordinance, for he is presumed to know that the Act of Assembly fixes the purposes to which the taxes so raised must be applied. Besides all this, there is no law requiring that a tax ordinance shall contain in its title the purposes for which the funds so to be raised shall be applied. It is claimed by the plaintiffs (4) that the corporation defendant must first exhaust the general revenue fund raised by tax on real and personal property before it can levy a license tax. On the argument no authority was cited to support this proposition, and I have been unable to find any. Clause 2 of section 20, supra, gives power to the cities of the third class to open and improve streets, etc., power to provide for the payment of the same from the general revenue, or by assessments on real estate benefited thereby, etc., etc., and also to make assessments as provided in clauses three and four, to wit, to impose a poll tax, etc., etc., and to levy and collect a license tax. The plain reading of these clauses makes it clear to my mind that all these taxes may be levied and collected in the same year. It is also claimed by the plaintiff that the ordinance in question is impracticable, arbitrary, unjust, and is a direct abuse of the taxing power, etc., and hence it is void. As to the impracticability of the ordinance it It is the subject," that is, the thing to be may be observed that this license tax is ascerdone or to be avoided, that must be clearly ex-tained and assessed in the same manner, subpressed in the title. Now the only thing to be stantially, as the license fees for vendors of done or intended to be done by this ordinance merchandise, tavern keepers, etc., etc., have was to levy and collect a license tax, and the been fixed in this Commonwealth for many title of the ordinance is, "An ordinance pro- years the practicability of which method has viding for the levy and collection of a license never been questioned. In Weber v. Reinhard tax in the city of Williamsport." Surely the (23 P. F. S. 373), a case where it was admitted subject of this ordinance is as clearly and con- there were difficulties in carrying into effect an cisely expressed as it may be done. It is urged, Act of Assembly under which a tax had been however, that because the Act of Assembly pro-assessed, SHARSWOOD, J., said: "The mode of vides that the funds raised by this license tax is enforcing the payment of taxes may be unusual, to be applied to certain specified purposes, that the title of this ordinance should recite the same. It is expressly provided in clause 2 of section 20, supra, that the funds raised by this tax shall be applied to certain purposes therein named; it follows, therefore, that they can be used for no other purpose. It is not charged in the plaintiffs' bill that the defendants threaten or intend to use the funds raised by this license tax for any but what provision of the Bill of Rights or the We are bound to give the Act a reasonable con- the claim had been adjudicated by the Orphans' struction, ut res magis valeat quam pereat." The language of the Court in Kelly v. Pittsburgh (4 Norris, 178), fits this part of this case. The municipal government is really but a branch of the government of the State, and whatever powers of taxation the Legislature possesses it may lawfully grant or delegate to such bodies. There is no limitation of these powers expressed in the Constitution of Pennsylvania. (Durach's Appeal, 12 P. F. S. 494.) We cannot review the evidence or the expediency of legislative enactments. They must violate some prohibition, expressly declared or clearly implied, of the Constitution of this State or of the United States, before we can pronounce them to be unconstitutional. (Butler's Appeal, 23 P. F. S. 451.) If the ordinance complained of is unwise, inexpedient or burdensome, the taxpayers of the city of Williamsport will find their only remedy at the polls by electing municipal officers who will modify or repeal it. If it is improper that cities should possess such unlimited taxing powers the only remedy will be found in electing legislatures who will modify or repeal them. Finding nothing in this case which entitles the plaintiffs to the relief prayed for, the demurrer is sustained, and it is ordered and decreed that the plaintiffs' bill be dismissed with costs. By the Court. Opinion by CUMMIN, P. J. J. M. B. Court and rejected, setting forth the adjudication, wherein it was stated, "that after presenting the claim, counsel for plaintiff had withdrawn it, giving notice at the time that the withdrawal was without prejudice to plaintiff's right to proceed. elsewhere, that in the opinion of the Court such withdrawal could not be without prejudice, as the adjudication cuts out all claims so far as the fund distributed is concerned, the real estate being only liable in case of deficiency of assets, subject to such right as claimant may have by reason of his withdrawal, or attempted withdrawal. The claim is disallowed." Replication, that the claim was withdrawn before determination, without this, that the claim had been presented to the Orphans' Court and adjudicated and rejected. Defendant demurred. John M. Gest (with whom was Sloan), for the demurrer. The defendant's plea sets up the decision and rejection of the plaintiff's claim by the Orphans' Court, and contains the adjudication thereupon in hæc verba. No exceptions having been filed thereto the adjudication is binding upon the plaintiff, and evidence cannot be introduced to contradict it in a collateral proceeding. Otterson v. Middleton, 13 WEEKLY NOTES, 357. The truth of the record of the Orphans' Court in matters within its jurisdiction cannot be disputed. The inducement of the replication, therefore, cannot aver anything inconsistent with the facts as they appear in that record. Selin v. Snyder, 7 S. & R. 166. Kennedy v, Wachsmuth, 12 S. & R. 171. The replication is bad because it is an attempt to traverse a conclusion of law. The plaintiff should have demurred. Stephen on Pleading, sec. 191. Bennet v. Filkins, 1 Wms. Saund. 14. The withdrawal was not "without prejudice." Evans (with whom was Ashhurst), contra. A verdict will be presumed to embrace all the plaintiff's claims against defendant. But it is not conclusive. The plaintiff may show that a particular claim was not made, or if it was made, that it was distinctly withdrawn from the jury. It lies with the party pleading former recovery to show affirmatively that it covered the same The declaration was in the common counts with bill of particulars. Defendant pleaded that demand. Croft v. Steele, 6 Watts, 373. Converse v. Colton, 13 Wr. 352. Hess v. Heeble, 6 S. & R. 60. necessaries; that the contract was her own, not made for her husband; that the credit was given to her solely upon her engagement that her separate estate should be responsible therefor; and that no execution issued against the husband The plea was bad and demurrable, and judg-in the first instance which was returned nulla ment should therefore be for plaintiff even though the replication be bad in form. bona. Berger v. Clark, 29 Smith, 340. THE COURT. Judgment reversed. December 22, 1883. claim here presented was certainly adjudicated C. P. No. 4. by the Orphans' Court and stands unreversed. If improperly adjudicated upon by that tribunal, plaintiff has his appeal, but not to us. demurrer to the replication is sustained. Oral opinion by BIDDLE, J. C. P. No. 3. The F. M. L. A. B. W. December 14, 1883. Early v. Ashworth & Coates. Negligence-Whether owner of city property in possession of a tenant is liable for injury to passer-by, caused by defect in sidewalk. Sur rule for a new trial. On the trial it appeared that on May 31, 1881, the plaintiff, while passing along Union Street, September 17, 1884. in front of premises owned by defendants, fell Hartzell v. Osborne et ux. into a hole in the pavement and was seriously Certiorari to Magistrate-Married woman-injured in the foot, which incapacitated him Judgment against her for necessaries-That from attending to his usual business and comthe Magistrate's record sets forth that the debt pelled him to take another position at a smaller was contracted "by the wife for the necessasalary. The testimony showed that the paveries of life" is not enough. ment had been out of repair for five months, and that the defendants had been notified by the The hole was police authorities to repair it. about two feet long, one and a half feet wide, and two feet deep. Sur certiorari from Magistrate. lows: "And now June 12, 1884, at 11.30 A. M., plaintiff and counsel appear. Defendants not appearing, plaintiff claims $71.80, balance for merchandise sold and delivered to defendants, and at their request, said debt being contracted by the wife for the necessaries of life. Plaintiff sworn; after hearing the proofs and allegations judgment publicly rendered in favor of plaintiff by default for $71.80 and costs of suit. July 9, 1884. Execution issued to Theodore H. Tredeker, Constable. Returnable July 29, 1884, writ returned July 23d, 1884. Execution stayed after Const. levy by defendant's certiorari." Rebecca J. Osborne excepted, inter alia, as follows: "Because the Magistrate's record does not show that the goods sued for were really necessaries of life, sold to her at her special instance and request, and on the credit of her separate estate." Bedell, for the exceptant. The record is deficient in many respects: in not showing conclusively that the goods were furnished at her (and not her husband's) special instance and request; that the goods really were The plaintiff offered in evidence ordinance of the city of Philadelphia of May 3, 1855, for the purpose of showing the character of pavement required to be maintained by the owner of the property and his duty to repair it. The offer was rejected. that at the time of the accident, and for several The defendant then gave testimony to show years preceding it, the premises were in possession of tenants of the defendant. ARNOLD, J., then inquired of the plaintiff's counsel whether he was prepared to show that such was not the case or to attack the lease in any way and, upon being informed that no such testimony would be offered, gave the jury binding instructions in favor of the defendauts. Verdict accordingly for the defendants. This rule for a new trial was afterwards granted. January 12, 1884. THE COURT. Rule dis T. A. E. |