#### The City of Pittsburgh *versus*Kalchthaler.

1. A butcher, who slaughters his own cattle and sells the meat at a stall in a public market which he rents at an annual rental from the city oí Pittsburgh, is liable to pay the tax levied and assessed upon his sales of such meat by the city of Pittsburgh under the Act of March 7th, 1846, P. L. 78, which authorizes said city to levy and assess an annual tax for the use of the city upon “goods, wares and merchandise and upon all articles of trade and commerce sold in the said city.”

2. In construing an Act of Assembly, it is always unsafe to depart from the plain and literal meaning of the words contained in the Act, out of deference to some supposed intent or absence of intent, which would prevent the application of the words actually used to a given subject.

October 29th, 1886.

Before Gordon, Trunkey, Sterrett, Green and Clark, JJ. Mbrctjr, C. J., and Paxson, J., absent.

Error to‘the Court of Common Pleas, No. 2, of *Allegheny county:*Of October Term, 1886, No. 106.

This was a case stated wherein Andrew Kalchthaler was plaintiff and the city of Pittsburgh was defendant.

The following is the case stated as filed:—

And now, October 24th, 1885, at Pittsburgh, Pa., it is hereby • agreed between the parties to-the above suit that the following case be stated for the opinion of the court in the nature of a special verdict.

That the plaintiff is a butcher, and is the owner of a slaughterhouse in the Fifteenth ward, in the city of Pittsburgh, Allegheny county, Pa.

The plaintiff is a resident of said ward, wherein he has resided for more than ten years last past, and is duly assessed $600 by Allegheny county, Pa., for his occupation as a butcher, in addition to his other regular city of Pittsburgh taxes. He (plaintiff) rents stall No. 40, Diamond market, from the city of Pittsburgh, defendant, and pays to the defendant at the rate of $30.08 per quarter for the use and occupation of said stall, No. 40, in the Diamond market, in the city of Pittsburgh, and which stall he has occupied undisturbed for more than twenty years last past.

He buys cattle, the growth and product of the United States, at the stock-yards, at East Liberty, in said city of Pittsburgh, Pa., and brings them to his slaughter-house, where he kills them and converts them into beef.

He takes said beef to the public markets of the .city of Pitts-* burgh, Pa., and on four days during the week (Sundays excepted), at stall No. 40, in said Diamond market, which he *548rents from the defendant at $30.08 per quarter, as aforesaid, and then sells the same under the market regulations of said city of Pittsburgh, and does not sell elsewhere.

The said city of Pittsburgh, by special authority of law, has erected the Diamond market-house, situate in the First ward in said city, in which said markets are publicly held for the convenience and especial benefit of the public at large.

That a portion of the market-house is set apart for the use of the butchers, and stalls are arranged for them, at which they make sales, and the plaintiff rents stall No. 40, as aforesaid, and is a tenant of the city of Pittsburgh, defendant.

The plaintiff sells his meat at stall No. 40, which he rents by the year, and pays said rent by the quarter, as aforesaid, to the city of Pittsburgh, for the use of the same.

Plaintiff keeps no warehouse at his slaughter-house, nor keeps nor owns any warehouse, shop or store in the city of Pittsburgh or elsewhere, unless stall No. 40, in said public market-house aforesaid, be adjudged to be a store or warehouse.

That, in addition to the plaintiff’s occupation tax and general regular city taxes and the rent of said stall No. 40, as aforesaid, the city of Pittsburgh has assessed the plaintiff with what is called the city business tax for the years 1884 and 1885, amounting to $15.75 for 1884 and $10.50 for 1885, upon the estimated gross sales of the plaintiff as a butcher at stall No. 40, in said Diamond market, which plaintiff rents from defendant, as aforesaid, on gross sales aggregating and estimated at about $5,000 per annum, which is not a uniform assessment upon all butchers in said city or market, some being assessed more and some less than plaintiff, in accordance with the estimated sales of each, by equal millage.

That upon failure of §aid plaintiff to pay said $15.75 tax for 1884, and $10.50 for 1885, the same was placed in the hands of Thomas Phelps, collector of -delinquent taxes for the city of Pittsburgh, and, after sundry notices, issued a warrant and levied upon the meat of the plaintiff on Monday, February 2d, 1885, for tax of,1884, and on Wednesday, October 7,1885, for $10.50, tax of 1885, and issued a warrant and levied upon the meat of plaintiff at his stall, and posted notices of sale, and then notified plaintiff of his intention to sell forthwith, and which plaintiff claims and contends defendant has no authority or power by law or otherwise to collect from plaintiff, in any way whatever, and that the city business tax, now claimed by defendant, hath never been collected from plaintiff as a butcher heretofore or any other butcher since the city of Pittsburgh was organized, until defendant pqsted plaintiff’s said stall with sale bill to collect said tax, as aforesaid, whereupon plaintiff *549paid the sum of $26.25, being said business tax aforesaid, under protest, for the purposes of this case, stated as a test suit.

Upon and under these facts the plaintiff claims the sum of $26.25.

If the court be of the opinion that the plaintiff is liable for said tax, then judgment to be entered for the defendant, but if not liable for said tax, then judgment to be entered for the plaintiff for the sum of $26.25. The costs shall follow the judgment, and either plaintiff or defendant reserving the right to sue out a writ of error to the Supreme Court of Pennsylvania.

After argument the court, White, <L, ordered judgment to be entered for the plaintiff in the sum of $26.25, filing the following opinion.

It is admitted that the only authority for levying the tax in question is the 2d section of the Act of March 1846, P. L., page 78, which is in these words: “The councils of the city of Pittsburgh shall be and they are hereby authorized to levy and assess upon goods, wares and merchandise, and upon all artiT cles of trade and commerce sold in the said city, including sales at auction or otherwise, an annual tax, not exceeding five mills on the dollar, for the use of said city, to be levied and collected from the vendors of said articles in the same manner as other city taxes.”

In a general and comprehensive sense the words “ goods, wares and merchandise, and articles of trade and commerce,” include fresh meat. If a butcher had a shop on the street, where lie carried on the business of selling his fresh meat, and kept shop open every day, like other branches of business, I think his sales could be taxed under the above section. But the question before us is: Does the section cover sales made in the public market on market days ? The city regulates the market days, and whether there are two or four market days in the week is immaterial.

If the sales of butchers can be taxed under the above section, I cannot see why all other sales in the markethouse cannot be taxed, of country produce, poultry, butter, eggs, &c.

This construction is so inconsistent with the idea of a public market that it is not to be presumed the Legislature so intended. We should give the Act a reasonable construction, and from the case stated it would appear that the city, for nearly forty years after the passage of the Act did not think it applied to sales in the market-house, for no such tax was levied until 1884.

The fact that the city rents the stalls to the butchers, although not conclusive of the question, is rather an argument *550against the right to impose an additional burden in the way of a tax upon the sales. The stalls are rented for the very purpose of making these sales, and presumably the rent received is a fair compensation for the privilege.

On the case stated we think judgment should be given for the plaintiff.

And now, April 21st, 1886, after argument by counsel, and consideration of the case stated, it is ordered that .judgment be entered for the plaintiff against the defendant for $26.25 with costs.

Judgment was accordingly entered, whereupon the defendant took this writ and assigned the said order that judgment be entered for the plaintiff as aforesaid for error.

*W. C. Moreland (Thomas D. Carnahan*with him), for plaintiff in error.

— In Pennsylvania the taxing power is vested absolutely in the legislature, and it is limited in its exercise only by its discretion. It is supremely a legislative not a judicial power: N. Y. & E. R. R. *v.*Sabine, 2 Casey, 245; Butler’s Appeal, 23 P. F. S., 451; *In re*Washington Avenue, 19 Id., 363; Pgh., Ft. W. & C. R. R. *v.*Commonwealth, 16 Id., 74; Penn’a R. R. *v.*Pittsburgh, 8 Outerbridge, 252.

“ It is unlimited in extent, except by express statutory prohibition. It belongs to every species of property or rights which come within the limits of the Commonwealth:” Pgh., Ft. W. & C. R. R. *v.*Comth., *supra;*Cooley on Taxation, pages 14-15; McCullough *v.*Maryland, 4 Wheat., 429.

“The power to tax twice is as ample as to tax once:” West Chester Gas Co. *v.*Chester Co., 30 Pa. St., 232.

“ If (the case in judgment) resulted even in double taxation, that has never been considered unlawful in this state; on the contrary it is of frequent occurrence; the real and personal property of a corporation maj be taxed, although it pays a tax on the stock which purchased it: ” R. R. Co. *v.*Commonwealth, 66 Pa. St., 77; Lackawanna Iron Co. *v.*Luzerne county, 42 Pa. St., 424-431; Philad. Saving Fund *v.*Yard, 9 Pa. St., 361.

The fact that the city has not heretofore collected this tax is not sufficient to deféat the collection now, if it be a legal tax: Penn’a R. R. Co. et al. *v.*Pittsburgh, 8 Out., 522.

The tax is uniform, the same millage being imposed: Kittanning Coal Co. *v.*Commonwealth, 29 P. F. S., 100; Truby’s Appeal, 15 Norris, 52; 4 Norris, 513. Besides, defendant in error, so far as the stated case shows, and so far as we know, did not appeal from the assessment, and doeá not now claim that his sales have been overestimated.

It will be observed that the money paid for the use of the *551stall is not a license, nor does the stated case show that a license is paid. In fact, no license is paid. But an Act of Assembly authorizing it, it could be collected without relieving the licensee from the payment of his business tax. The tax^ ing power of this Commonwealth is vested absolutely in the. legislature. When not prohibited by the Constitution, the only limitation in the exercise of that power, is its own discretion : ” Brown’s Appeal, 1 Amerman, 72.

*J. F. Slagle*( *Whitesell Sp Sons*with him), for defendant in error.

— The only question in the ease is as to the construction of this Act of Assembly; whether it authorizes the taxation of meat sold by a butcher in the public market of the city.

The learned judge of the court below says that, “in a general and comprehensive sense, the words ‘goods, wares, and merchandise, and articles of trade and commerce ’ ” include fresh meat. This is true, but we do not concede his proposition, that if a butcher had a shop on the street where he carried on the business of selling fresh meat, his sales could.be taxed under this act.

The evident intent of the Act was to reach property of merchants used in their trade.

The view is enforced by the fact that at the same session of the legislature another Act was passed imposing a state tax upon all “dealers in goods, wares and merchandise.”

There have been several decisions under this Act.

In the Commonwealth *v.*Dinkleling, 2 Chester Rep., 384, this court held that a butcher who slaughters cattle, prepares the- meat for sale, and sells it at his slaughter-house, at the public market, and in a room of his own dwelling, is not liable to tax under it.

In Commonwealth *v.*Evans, 2 Chester Rep., 383, the same rule was applied to vendors’of live stock, and this court says: “ Its reference to goods, wares and merchandise, etc., and those who keep a store or warehouse for vending and disposing of the same, clearly excludes the idea of applying the Act to live stock.”

Both of these statutes, of March 7th and April 22d, 1846, should have a common interpretation. A butcher who sells meat prepared b}- himself is not a dealer, because the articles he sells are not ordinary articles of commerce within the meaning of the statute.

January 3d, 1887.

Mr. Justice Green

delivered the opinion of the court,

The 2d section of the Act of 7th March, 1846, P. L., 78, is *552in the following words: “The councils of the city of Pittsburgh shall be and they are hereby authorized to levy and assess upon goods, wares and merchandise, and u})on all articles of trade and commerce sold in the said city, including sales at auction or otherwise, an annual tax, not exceeding five mills on the dollar, for the use of said- city to be levied and collected from the vendors of said articles in the same manner as other city taxes.”

The plaintiff in this action is a butcher who slaughters his own cattle, and sells the fresh meat derived therefrom at a stall in the Diamond market in the city, for the use of which stall he pays an annual rental to the city. A tax under the authority of the above law, having been assessed upon the annual sales made by the plaintiff for the years 1884 and 1885, he paid the same under protest and brought this action to recover back the money paid, upon the theory that he was not subject to the tax. The learned court below was of opinion that the tax was not lawfully assessed and gave judgment for its recovery. The ground of the decision is that sales by butchers in open market were not intended to be included within the language of the Act. We find ourselves unable to agree with this construction. In point of fact the literal words of the Act do include sales by butchers of fresh meat. This meaning is conceded in a general sense in the opinion of the court, but it is thought upon other considerations that such a meaning should not be given in this class of cases. We think it is always unsafe to depart from the plain and literal meaning of the words contained in legislative enactments out of deference to some supposed intent, or absence of intent, which would prevent the application of the words actually used to a given subject. Such a practice is-really substituting the theories of a court, which may, and often do, vary with the personality of the individuals who compose it, in place of the express words of the law as enacted by the law-making power. It is a practice to be avoided and not followed. It has been condemned by many text writers and by many courts. Occasion-all}' it has been departed from, but the path is a devious and a dangerous one, which ought never to be trodden, except upon considerations of the most convincing character and the gravest moment. In the present case it must be conceded that “butchers’ meat” is within the strictest meaning of the word “merchandise,” and it is unquestionably an “article of trade and commerce.” In a city so large as Pittsburgh the daily transactions in this article must be of very considerable extent. It is a commodity of prime necessity and of universal use. No general statistics of the traffic have been furnished to us, but *553when it is known that the sales of this one butcher, at one stall only are at least $5,000 annually, it is safe to say the yearly aggregate of all the sales within the city limits must amount to a large and important sum. Why then should not the sales of this class of merchandise be subject to the samé burden of taxation as the sales of other kinds of merchandise? Why should not butchers pay taxes upon the business done by them in the same manner as other dealers must pay taxes upon the business done by them? We fail to discover any adequate reason. The fact that the sales are made at-a stail rented from the city does not impress us as being of any force to change the meaning of the Act. The stall is a place of business for which a very moderate rental is paid, and in that circumstance should rather be found a reason for applying, instead of withholding, the operation of the Act. It is not^possiblein our'judgment to regard the tax imposed by the Act as a second taxation of which the rent paid for the use of the stall is the first. The rent is not a tax in any sense of that word, and hence the argument to prove double taxation in this mode is without force. We find but a single judicial construction of the Act in question in our books of reports. It is in the case of Shriver *v.*Pittsburgh, 16 P. F. S., 446. and we there held with a very liberal construction in favor of the city’s right of taxation, that it included sales made out of the city and out of the state by the agents of a merchant who did business in the citjn We see no reason for confining the taxation under this Act to the stocks of goods, wares and merchandise held by merchants, as suggested in the argument of the learned counsel for the defendant in error. There is no warrant in the words of the Act for so limited a construction as this. Nor would it be just to put upon the class of dealers known as “merchants,” only, the whole burden of this tax. It would not be uniform taxation upon the same class of subjects as is now required by the organic law of the commonwealth.

It seems to us that upon every view of the case butchers selling meat whether in stalls or shops within the city limits, are subject to the operation of the Act and required to bear their share of the taxation which it imposes upon all alike who sell goods, wares and merchandise or articles of trade and commerce. The cases cited by counsel from the Chester county Reports are not in point. They relate to a different Act which imposes a mercantile tax upon dealers in goods, wares and merchandise who keep stores or warehouses for vending the same. But the Act we are considering simply imposes a tax upon sales without any reference to the question whether the sellers are dealers or merchants. It is the sales alone that give *554rise to the tax and. these are the samé no matter by whom made, so far as their liability to taxation is concerned.

Judgment reversed and judgment now entered in favor of the city of Pittsburgh oil the case stated with costs.