3 Pa. Commw. 658 | Pa. Commw. Ct. | 1971
Opinion by
This is an appeal from the action of the Secretary of Revenue in revoking the wholesale cigarette dealer’s license of the appellant, John’s Vending Corporation.
We are here involved with the Pennsylvania Cigarette Tax Act, Act of July 22,1970, P. L. , No. 178, 72 P.S. §3169.101. As its name implies, this is a revenue measure, the core of which is the imposition of an excise tax upon the sale or possession of cigarettes within the Commonwealth. The tax is paid by the purchase of stamps from the Commonwealth primarily through
Name of Offender Offender
___» Court Date Location
John’s Vending Corporation supplied no information in this space. Elsewhere on the form, however, at a place provided, John’s Vending Corporation supplied the name of its President, Raymond Martorano. A license for the year 1971 was routinely issued to the appellant.
In pursuance of a program of spot checking, the Bureau of Cigarette and Beverage Taxes of the Department of Revenue forwarded a copy of appellant’s application to the State Police. That agency reported that in the United States District Court for the Eastern District of Pennsylvania, Raymond Martorano had in 1952 entered a plea of guilty to possessing and transporting unstamped liquor and had received suspended sentences; and further, that Raymond Martorano had pled guilty in the Quarter Sessions Court of Philadelphia to selling untaxed whiskey in 1951; to unlawfully possessing and selling drugs in September 1954; and to
The Board concluded that the appellant had violated Sections 403(2) and 403(3) and recommended revocation of its license. The Secretary of Revenue, for the Department of Revenue, thereupon did revoke appellant’s license.
Raymond Martorano was an officer of the applicant when it applied for license for the year 1971. A requirement of Section 403(2), to wit, that no officer of a corporate applicant shall have been convicted of a crime involving moral turpitude, was therefore lacking if Raymond Martorano’s convictions of possessing and transporting unstamped liquor, selling untaxed liquor
Appellant first argues that the offenses of which its president was convicted were not crimes of moral turpitude within the meaning of the Cigarette Tax Act because that Act is a revenue measure; therefore, it contends, Mr. Martorano’s record indicating an inclination in the past to traffic illegally in untaxed liquor and dangerous drugs would not, even if repeated, have a direct effect on the public which he would meet as a cigarette wholesaler. It thus distinguishes cases in other jurisdictions holding that violations of narcotic laws are crimes involving moral turpitude justifying revocation or suspension of physicians’ licenses conferred by the state. DuVall v. Board of Medical Examiners, 66 P. 2d 1026 (Ariz., 1937); Meyer v. Board of Medical Examiners, 206 P. 2d 1085 (Calif., 1949); Speer v. State Board of Medical Examiners, 109 S.W. 2d 1150 (Tex. Civ. App. 1937). This argument, while ingenious, is wholly unacceptable. Moral turpitude is “[tjhat element in personal misconduct in the private and social duties which a man owes to his fellowmen, or to society in general, which characterizes the act as an act of baseness, vileness or depravity, and contrary to the accepted and customary rule of right and duty between man and man.” Ballentine’s Law Dictionary (Lawyers Co-Operative Publishing Company, 1930). “Moral turpitude is necessarily adaptive; for it is itself defined by the state of public morals, and thus fits the action to be at all times accommodated to the common sense of the community.” Beck v. Stitzel, 21 Pa. 522, 524 (1853). Accepting for the moment appellant’s contention that convictions should be of such crimes as might affect the applicant’s conduct as a cigarette wholesaler, we are unable to conclude that Mr. Martorano’s penchant in the past for engaging in unlawful sales of illegal untaxed alcohol
The appellant further complains that the phrase “moral turpitude” is so lacMng in legal precision as to constitute the grant of power to the Department to revoke licenses an unlawful delegation of legislative power. The same argument was made and rejected as to the single word “mismanagement” as a ground for impeachment of a municipal officer in Marshall Impeachment Case, 363 Pa. 326, 69 A. 2d 619 (1949). The term “moral turpitude” having grown in the field of libel and slander, almost exclusively cultivated by judges, it would hardly become a court to reject its use by the Legislature as lacMng in meaning.
Hence, of the two grounds for revocation found by the Board, one only is supported by substantial evidence. However, in view of the sensitive nature of the failure here to meet the statutory requirement for licensure, we are not persuaded that the order should be modified, much less set aside. State Real Estate Commission v. Evers, 89 Dauphin 158 (1968); State Real Estate Commission v. Farkas, 1 Pa. Commonwealth Ct. 134, 274 A. 2d 238 (1971).
We have carefully considered appellant’s contention that it was not accorded due process because the Board conducted the hearing at the scheduled time and place although the only person who appeared for the appellant was Raymond Martorano, a former officer. It argues that the Board should have continued the hearing, although not asked to do so, because Raymond
Having concluded that the adjudication was supported by substantial evidence and that the Department did not abuse the discretion vested in it in the imposition of a penalty of license revocation, we make the following:
Order
And Now this 16th day of December 1971, the appeal of John’s Vending Corporation from the adjudication is dismissed and the order of the Department of Revenue revoking its wholesale cigarette dealer license is hereby affirmed.
Despite the language critical of the term “moral turpitude” as a basis for the deportation of aliens in United States v. Zimmerman, 71 F. Supp. 534 (E.D. Pa. 1947), the phrase is still in the statute and constantly applied. 8 U.S.C.A. 1251.