ERROR to the Supreme Court of the State of Pennsylvania.
This action, which was brought in the Court of Common Pleas of Dauphin County, Pennsylvania, was tried by the court upon the following case, stated in the nature of a special verdict.
The Commonwealth of Pennsylvania claims from the defendant, Samuel C. Cook, who, by the governor, was duly appointed and commissioned an auctioneer in and for the city of Philadelphia, the sum of $757.83, for taxes due at one-half of one per cent and three-fourths of one per cent, as per his report furnished to the auditor-general, and settlement made by the auditor-general and State treasurer, dated Jan. 3, 1871, upon sales made by him of foreign goods placed in his hands by the importer, in bulk or original packages, to be sold at auction as an auctioneer in the original packages as imported, and which were so sold by him at auction as an auctioneer. The Commonwealth claims the said taxes under the act of assembly entitled 'An Act to incorporate the Commercial Mutual Insurance Company of Philadelphia, relative to the State duty on domestic and foreign articles in the counties of Philadelphia and Allegheny,' & c., approved the twentieth day of May, 1853, P. L. 1853, 679; and under the act of assembly entitled 'An Act to modify the existing laws of the Commonwealth, and to provide more effectually for the collection of the State tax or duty on auction sales in the city of Philadelphia and county of Allegheny,' approved April 9, 1859, P. L. 1859, 435.
The defendant claims that said sales of foreign goods are exempt from taxation, because said acts of assembly, so far as they relate to such taxation, are in direct conflict with sects. 8 and 10 of art. 1 of the Constitution of the United States, and for that and other reasons void; and inasmuch as the foreign goods so taxed as aforesaid were sold in bulk, as they were imported by the importer, said defendant, Cook, acted simply as his salesman.
That as the said goods had never been sold for consumption or resale by the importer, and had never been divided by him into smaller quantities by breaking up the casks or packages in which they were originally imported, the said goods had not lost their character as imports, and therefore that any such tax is unconstitutional and ought not to be levied.
That if the court should be of the opinion that the acts of assembly are constitutional, then judgment should be entered for the Commonwealth, but if not, then for the defendant, Cook; costs to follow the judgment, and either party reserving the right to sue out a writ of error.
The court being of the opinion that the defendant was properly charged with the tax, and that the laws under which it was assessed were constitutional, gave judgment in favor of the Commonwealth. That judgment having been affirmed by the Supreme Court of Pennsylvania, Cook sued out this writ of error.
The statutes of Pennsylvania referred to in the case stated are set out in the opinion of the court.
Mr. Benjamin Harris Brewster for the plaintiff in error.
As the goods sold by Cook had not lost their character as imports, the tax imposed was upon them, and is therefore in direct repugnance to the provisions of the Constitution of the United States, which declare that 'no State shall, without the consent of Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws;' and that Congress shall have power 'to regulate commerce with foreign nations, and among the several States, and with the Indian tribes.' Brown v. State of Maryland, 12 Wheat. 419; The License Cases, 5 How, 504; Pervear v. The Commonwealth, 5 Wall. 475; Same v. Austin, 13 id. 29; Case of the State Freight Tax, 15 id. 232; Waring v. The Mayor, 8 id. 110; People v. Waring, 3 Keyes (N. Y.), 374; Pennsylvania Railroad v. Commonwealth, 3 Grant (Pa.), 130; Welton v. The State of Missouri, 91 U.S. 275; Henderson v. The Mayor, &c., 92 id. 268; Inman Steamship Co. v. Tinker, 94 id. 238.
Mr. Lyman D. Gilbert, Deputy Attorney-General of Pennsylvania, contra.
The contention is between the Commonwealth and an auctioneer, as to a graduated tax upon his sales; a liability to pay which she annexed as a condition to the grant of authority to pursue his calling.
If it be asserted that the tax is laid upon the importer, and is paid by him, the auctioneer being merely the collector, the Commonwealth has the right to collect it from the latter, for he succeeds to no defence which the former might have made. Waring v. The Mayor, 8 Wall. 110.