I cannot agree with the conclusion reached by the court in this case. *Page 121
The entire Mercantile License Tax System was abolished by the Act of May 7, 1943, P. L. 237. But in 1942, when the cause of this litigation arose, the Act of April 9, 1929, P. L. 343, section 406, after providing for the appointment of mercantile appraisers by the Auditor General and the City Treasurer,* further provided that "The Auditor General shall also approve or disapprove all expense accounts of mercantile appraisers, or their clerks or assistants, and the number and compensation of clerks or other assistants appointed by mercantile appraisers to assist them in the performance of their duties." This provision, as I read it, is as clear as the English language permits. It gives to the Auditor General the power and duty to approve or disapprove the number and compensation of clerks whom the mercantile appraisers appoint.
Respondents claim that the Department of Revenue has that same power and duty. Upon what statutory provisions do they rely for support of this contention?
First, upon a further clause of section 406 that the Auditor General shall, from time to time, certify to the Department of Revenue the names of the mercantile appraisers, the salaries payable to them, the number, names, and compensation of clerks or assistants approved by him for appointment by mercantile appraisers, and all expense accounts which he has approved. But in this there is not the slightest intimation of any grant of power to the Department of Revenue in connection with the certifications so made.
Second, upon section 203(i) of the act, which states that "The Department of Revenue shall have the power and its duty shall be . . . To prepare and cause to be printed, in such form as the department may determine, such blanks, statements, notices, and other forms, as shall be necessary for use by mercantile appraisers in performing the duties imposed upon them by law, and to *Page 122 supervise the work of the mercantile appraisers." These latter words, "to supervise the work of the mercantile appraisers," are said to mean that the Department of Revenue shall have control over the number and compensation of clerks appointed by the mercantile appraisers. To me it would seem obvious, especially when read in their context concerning the Department of Revenue's duty merely to prepare and print blanks and other forms, that those words mean nothing more than the power and duty to supervise "the work", that is to say, the manner, form, or mechanics of the work, performed by the mercantile appraisers. I fail to see how the power and duty to print blanks and supervise the work of the mercantile appraisers can possibly be construed as the grant of a power and the delegation of a duty to determine the number and compensation of their clerks.
Third, upon section 610(d) of the act, which provides that "The number and compensation of all clerks and other employes required to assist county treasurers in performing their duties as agents of the Commonwealth for the collection of money shall be subject to the approval of the Department of Revenue, any other provision of any act of Assembly to the contrary notwithstanding." The answer to any argument based upon this provision is that the clerks "appointed by mercantile appraisers to assist them in the performance of their duties" are not "clerks required to assist county treasurers in performing their duties for the collection of money". The mercantile appraisers and their clerks have nothing to do with the collection of money, which is the function of the county treasurers whether as agents of the Commonwealth or otherwise. The function of the mercantile appraisers was to appraise and assess the mercantile license tax.
Swartley v. Baird, 347 Pa. 608, 32 A.2d 874, does not rule the present case. It held merely that the Auditor General and the Department of Revenue should both be *Page 123 joined as parties in a controversy such as the present, and therefore that the Dauphin County Court, not the Court of Common Pleas of Philadelphia County, had jurisdiction.
Not being able, therefore, to find in the statutes any authority conferred upon the Department of Revenue to approve or disapprove of the number and compensation of clerks appointed by the mercantile appraisers, I must respectfully dissent from the majority opinion. I would reverse the judgment of the lower court and enter judgment for plaintiffs on their demurrer.
Mr. Chief Justice MAXEY concurs in this dissenting opinion.
* The participation of the City Treasurer in such appointments was revoked by the amendatory Act of June 21, 1937, P. L. 1939.