Fahey v. State

Hurt, Judge. This is a conviction for pursuing and following the occupation of selling spirituous, vinous and malt liquors, in quantities less than one quart, without first having obtained a license therefor, and without having paid the tax required by — 158 — law. . This prosecution is based upon the acts of March 11, 1881, and April 4, 1881. Appellant moved to quash the indictment upon several grounds: 1. Because the laws of March 11, 1881, and April 4, 1881, levying the occupation tax and providing for the issuance of a license, are unconstitutional and void in this, that said acts contain more than one subject, to wit: the exercise of the police power and that of taxation for general revenue, and embrace subjects not expressed in the titles of the bills. 2. Said acts are unconstitutional in this, that they require the said payment of the tax to the State, county and city in advance for the term of one year as a condition precedent to the right of pursuing said occupation, while all others are permitted to pay quarterly; and are in conflict with and repugnant to sections 13 and 19 of the Bill of Rights, and sections 2 and 3, article 8, of the State Constitution, and the fourteenth amendment to the Constitution of the United States, in this, that they require a license of persons pursuing the occupation of appellant, and of the billiard table keeper, and require none of persons pursuing any of the other occupations taxed by law, and provide no means for obtaining a license by such other persons. First ground: Do the acts of March 11, 1881, and April 4,1881, contain more than one subject? If so, they are void. The Constitution provides that “no bill shall contain more than one subject, which shall be expressed in the title.” . (Art. 3. sec. 35.) In the preceding Constitution the word “ object ” was used instead of the word “subject.” Judge Bonner, in Stone v. Brown (54 Texas, 341), observes that “ it may be presumed that the convention had some reason for substituting a different word from that which had been so long in use in this connection; and that in the light of judicial expressions the word subject may have been thus substituted as less restrictive than object.’” In The People v. Lawrence (36 Barbour, 192), the Supreme Court of Sew York says “It must not be overlooked that the Constitution demands that the title of an act shall express the subject, not the object, of the act. It is the matter to which the statute relates and with which it deals, and not what it proposes to do, which is to be found in the titles It is no constitutional objection to a statute — 159 — that its title is vague or unmeaning as to its purpose, if it be sufficiently distinct as to the matter to which it refers.” , What, then, is the subject of the acts of March 11, 1881, and April 4, 1881? Most clearly the subject of these acts is the regulation of the sale of spirituous, vinous and malt liquors and medicated bitters. Mow, if there be but one subject in the act, but more than one object, the act would not be obnoxious to the Constitution. We could concede, for the argument, that the object of these acts is to regulate the sale of these liquors, to collect revenue and divers other purposes and objects; still, unless there was more than one subject in the act, it would be valid—constitutional. Again: Suppose that there be more than one subject mentioned in the acts. If . they be germain or subsidiary to the main subject, or if relative directly or indirectly to the main subject—have a mutual connection—and are not foreign to the main subject, or so long as the provisions are of the same nature and come legitimately under one general denomination or subject, we can not hold the act unconstitutional. (Giddings v. San Antonio, 47 Texas, 556; Breen v. R. R. Co., 44 Texas, 306; Austin v. R. R. Co., 45 Texas, 267; Phillips v. Bridge Co., 2 Met., Ky., 222; Smith v. Commonwealth, 8 Bush, 112; State v. County Judge, 2 Iowa, 284; Battle v. Howard, 13 Texas, 345; Murphy v. Menard, 11 Texas 678; Tadlock v. Eccles, 20 Texas, 792.) We are of opinion that these acts do not contain more than one subject. Second Ground: “That the acts above cited require payment of the tax in advance for the term of one year as a condition precedent to the right of pursuing said occupation, while all others are permitted to pay quarterly; and hence in conflict with and repugnant to sections 13 and 19 of the bill of rights, and sections 2 and 3, of article 8, of the State Constitution, and the fourteenth amendment to the Constitution of the United States, in this, that they require a license of persons pursuing the occupation of appellant and of the billiard table keeper, and require none of persons pursuing any other occupation taxed by law, and provide no means for obtaining a license for such persons.” Answer to these objections; — 160 — 1. The Constitution confers the power upon the Legislature to impose occupation taxes. (Art. 8, Sec. 1.) 2. But all occupation taxes must be equal and uniform upon the same class of subjects within the limits of the authority levying the tax. (Sec. 2, Art. 8.) Upon this occupation the State tax is the same all over the State, and if a county desires to impose a tax upon this occupation it must be equal and uniform over the county—that is, all persons must be required to do and perform the same things as acts precedent to the right to pursue the occupation in said county, and they must pay the same amount of tax—neither more nor less. So within the limits of cities and towns. It is evident that the tax imposed upon the occupation of selling in quantities less than one quart the liquors named in the acts cited is equal and uniform in the State; and it appears from this record that it is equal and uniform within the limits of Galveston county. The Legislature is the authority levying the State tax; the county of Galveston, through the commissioners court, is the authority levying the county tax within the county limits. The tax being equal and uniform in every particular over the State as to the State tax, and being equal and uniform within the limits of the county of Galveston, instead of being obnoxious to the State Constitution, these acts are in strict conformity with its requirements. The above observations apply to the objection that the persons proposing to follow this occupation must pay in advance for the term of one year as a condition precedent to the right to pursue it; while upon all others they are permitted to pay quarterly. This being required of all of the same class alike, the Constitution is by no means infringed; and in addition to this the requirement is founded in the highest considerations of public policy and common sense. It is insisted that the tax is unequal and not uniform, be cause a person pursuing the occupation in some counties would not be required to pay as much as in others; that the cities and counties are not required to assess this tax, and if they do, they may assess it at a greater or less sum in the different cities- and counties, etc., and, as the penalty depends on the amount assessed, it would not be the same, it would not be uniform over the State.” This is evidently correct, but constitutes no objection to the law. In the Banking & Insurance Company v. The State (42 — 161 — Texas, 636) an analogous question arose. The State sued the company for occupation tax. The company interposed a constitutional objection to the tax, contending that it was not equal and uniform throughout the State. The statute provided that those pursuing such occupation should pay a tax of two hundred and fifty dollars, if the business was carried on in a city or town exceeding five thousand in population. Galveston, the city in which the occupation was followed, contained a population greater than five thousand. The act also provided that, if the population was less, a tax of fifty dollars should be paid. The Supreme Court (opinion by Moore, J.) held that such a tax was equal and uniform; and this opinion is approved in Blessing v. City of Galveston. (Id., 641.) These opinions were rendered under the preceding Constitution, which contained this provision: “ Taxation shall be equal and uniform throughout the State.” The present Constitution settles this question beyond all controversy, there being a special provision relating to occupation taxes, which is: all occupation taxes shall be equpl and uniform "upon the same class of subjects within the limits of the authority levying the tax.” The limit of the State’s legislative authority is the whole State; that of the county, city or town is their respective boundaries. That the State tax is equal and uniform is not questioned here. How, if the tax imposed by the counties, cities and towns is equal within their limits, the imposition of such tax would not be obnoxious to the Constitution, but would be in. exact accord with the above provisions, though in other counties, cities or towns the tax may not be the same. So far as the fourteenth amendment of the Constitution of the United States is concerned, it certainly was not intended to prohibit the States from enacting laws regulating the traffic in these liquors, so long as they do not abridge the privileges or immunities of citizens of the United States, or deprive any person of life, liberty or property, without due process of law, or deny any person within its jurisdiction the equal protection of laws. These acts do none of these things. If they do, then, the State would not have the right to tax one occupation greater than another, nor to require a license or bond as conditions precedent to the pursuing of any occupation, unless such requirements were made of persons proposing to pursue any oe= — 162 — cupation. If this be the proper-construction of the amendment, then the text writers, and supreme courts and legislatures of most, if not all, the States have misconstrued it; for acts with like provisions in substance have been passed by nearly if not all the States, and have been upheld by the highest judicial authority thereof. Uor can a case be found, we assert, holding that, because of such provisions in an act, to wit: requiring payment in advance for one year, etc., such payment not being required for all occupations, is an infringement of the fourteenth amendment to the Federal Constitution. Third ground: “That the indictment is defective because it does not charge that defendant had not purcured a license before the finding of the indictment.” The indictment alleges every element of the offense. This is no exception or proviso in the enacting clause: it is matter contained in article 112 of the Code, and is defensive in its character; hence the accused must bring it forward, or it must appear on the trial that the taxes have been paid—this being a question of fact and not of pleading. Appellant excepted to the following charge: “If the evidence satisfies the jury beyond a reasonable doubt that the defendant did, as charged in the indictment, pursue in the county of Galveston, State of Texas, the occupation of selling spirituous, vinous and malt liquors in quantities less than a quart, between the first day of October, 1886, and the twenty-fourth day of January, 1887 (the date of filing the indictment), without having paid the occupation tax of three hundred dollars to the State, and one hundred and fifty dollars to the county of Galveston, and the said taxes were then due, and owing, and unpaid, to the State and county respectively, say you find the defendant guilty as charged in the indictment, and assess his punishment, which is fine not less than four hundred and fifty dollars, nor more nine than hundred dollars.” The objections are, first, that the charge does not correctly define the offense; and second, it does not give the penalty correctly, and is upon the weight of evidence, etc. Appellant being charged with pursuing the occupation without license, counsel for appellant contend that the charge is incorrect, because it substitutes “without having paid the tax” for “without having obtained a license,” etc. If appellant had in fact paid the taxes and procured the license as required by article 112, as amended March 15, 1881, he could not have been — 163 — convicted, though he may not have had a license. This being so, the charge was more favorable to him than the law. Opinion delivered January 30, 1889. It is urged that the charge assumed a fact to have been proven, and is therefore upon the weight of evidence. The court, in its charge, does assume that the commissioners court of Galveston county had assessed a tax of one half of the State tax upon the occupation. That such a tax had been assessed there can be no doubt; this was admitted by appellant on the trial, and the State introduced no evidence to prove it because of its admission. This being the case, the court did not err in assuming this to be a fact. Nor did the court err in charging that the penalty was not less than four hundred and fifty dollars, nor more than nine hundred dollars—this proposition depending upon the foregoing. We find no error in the judgment, and it is affirmed. Affirmed»