J. F. Baker & Co. v. Panola County , 30 Tex. 86 ( 1867 )

Smith, J.

The main question in this cause is, whether the county courts, in the years 1858 and 1859, had authority to levy and collect, for county purposes, a tax upon the occupation of retailing spirituous and vinous liquors in quantities less than a quart, in addition to the $250 per annum fixed by law as “ license tax” upon that occupation.

Each county established in this state is a body corporate and politic. (Art. 229, O. & W. Dig.,) [Paschals Dig., Art. 1044, Note 430.] And the county court is constituted the organ or agent by which the county acts. It contracts, creates, and fixes the liabilities upon the county, and provides to discharge them; yet I presume it • cannot be seriously contended, that the county court has any power or authority to levy a tax beyond that which may be conferred upon it by law. The extent of its agency for the county is fixed and defined by law, and it cannot go beyond the authority thus conferred.

“An act to organize county courts,” approved 16th March, 1848, provides in the 4th section as follows, to wit: “ The said county courts shall have power to levy and collect a tax for county purposes upon all subjects of taxation in their respective counties on which a tax may be levied by the state: Provided, Said tax shall not exceed in any one year one-hálf the amount of the tax levied by the state on such subjects of taxation: And provided also, That such, tax shall be apportioned in the same manner as the state tax; and the said tax upon all subjects, other than trades, and occupations, and professions, shall he assessed and collected by the assessor and collector of state taxes in the same manner as the state tax, and shall be paid by him into the county treasury. And all of said taxes upon trades, occupations, and professions, shall be collected by the county treasurer in the same manner as the state tax upon such subjects is collected. And the county treasurer shall have the same power to enforce the collection of such taxes for the counties as the assessor and collector has for the state.” [Paschal’s Dig., Art. 1230.]

•Under the provisions of this law the county courts had the authority to levy and collect a tax for county purposes “upon all subjects of taxation in their respective counties on which a tax was levied by the state; ” and from the rule before cited, in respect to the functions and powers of the county court, if the state does not levy a tax upon any particular thing, we must conclude that the county court cannot levy a tax upon it.

Upon examination of the tax law of February, 1848, which properly fixed and defined the subjects of taxation by the state, it will he seen that the occupation of retailing spirituous and vinous liquors in quantities less than a quart is not enumerated as one of the subjects of taxation “for the use of the state.” The law is specific in its designation of the subjects upon which the taxes are levied (Art. 1933, O. & W. Dig.) or to be assessed and collected “ for the use of the state.” (Arts. 1936, 1937, 1938, O. & W. Dig.,) [Paschal’s Dig., Arts. 5150, 5153-5155, Notes 1127-1129.] And when we consider the fact that the legislature, in the enactment of the tax law, had before its mind and for its consideration all the subjects of taxation in the state, (property, occupations, trades, professions, and incomes,) and in the enumeration of the specific subjects of taxation “for the use of the state,” omitted the occupation of retailing spirituous and vinous liquors, it would seem to be improper to conclude that it is “ a subject of taxation” “ on which a tax may be (is) levied by the state.”

The act providing for the payment of $250, and for the issuance of license to retail spirituous and vinous liquors, was not intended as a tax law, as ordinarily understood, for the purpose of raising revenue for the use of the state, but was intended mainly for the regulation of that occupation. There are several conditions to be complied with besides the payment of the $250, before the license can legally issue, to wit: the county court must first grant the “privilege,” and bond with security must be given, conditioned to keep an orderly house, &c. And it may be contended with much plausibility, that though the $250 is called “a license tax,” still that all these things, including the payment of the $250, might be held to be conditions precedent, or the consideration upon which the privilege is granted, and that the $250 is not a tax imposed upon the occupation. The- amount is payable into the county treasury, to be appropriated to the payment of grand and-petit jurors.

It is contended, however, that the $250 is a tax imposed upon that occupation by a state law, and enforced through the county courts for a state purpose, that is, the payment of the jurors of the county, and that it is the duty of the state thus to provide for them. The duty of paying the jurors of the counties does not devolve upon the state, but rests primarily upon the counties, and it must follow that the levy of the $250 is not for a state purpose, or in order to relieve the state from any liability whatever, but for a county purpose only.

There are other provisions of Art. 248, O. & W. Dig., which' seem to fortify the position, that the county court can only levy a tax upon the same subjects of taxation that the state does for state purposes: First, it is provided that the county tax shall not exceed in any one year one half the amount of the tax levied by the state; second, it is apportioned'in the same manner as the state tax; third, the county tax upon property shall he collected by the assessor and collector of the state tax, and in the same manner; fourth, all taxes upon trades, occupations, and professions, shall be collected by the county treasurer in the same manner as the state tax upon such subjects is eolected; fifth, and the county treasurer shall have the same power to enforce the collection of such taxes for the counties as the assessor and collector has for the state. [Paschal’s Dig., Art. 1230.]

The assessor and collector had no authority, under any law in force in 1858 or 1859, to collect the $250 “license tax.” Ho manner was designated for him to enforce its collection. Its payment voluntarily to the county treasurer was a condition precedent to the issuance of license. And as the power and manner of enforcing the collection of the county tax levied upon any occupations given the county treasurer was the same as that given the assessor and collector of the state taxes on the same subjects of taxation, and as the latter had no authority to assess and collect any tax for the state on the occupation of retailing spirituous and vinous liquors in less quantities than a quart, it would seem to follow that it was not intended by the law that the county treasurer should make such a collection, or that the county court should ever levy a tax on that occupation; and this view strengthens the position, that this is not a subject of taxation on which the state has levied a tax, so as to authorize the county court to levy one on it for county purposes also.

From the foregoing considerations, we conclude, that the county court of Panola county exceeded its authority in levying a tax on the occupation of retailing spirituous and vinous liquors in less quantities than a quart, and that the same was improperly demanded of the plaintiffs by the officers of the county under the order of the county court, which, according to the averments of the petition, was paid by the plaintiffs under protest, and has been appropriated to the use of the county.

Some of the authorities say that money paid voluntarily by a party, with full knowledge of the facts, but under a mistake of law, cannot -be recovered back; but this rule does not apply when the parties are not upon equal terms in the transaction. “ If one party has the power of saying to the other, that which.you require shall not be done except upon the condition which I choose, to impose, no one can contend that they stand upon anything like an equal footing.” (Morgan v. Palmer, 2 Barn. & Cress., 319; Corporation of City of Marshall v. Snediker & Cole, decided at Tyler term, 1860,) [25 Tex., 460.]

It is averred that the clerk of the county court, by its order, refused to issue the license to retail spirituous and vinous liquors to the plaintiffs, as the law directed him, until this additional amount was paid him. Whether that demand and condition be legal or not, it must be admitted that the parties were not on equal terms, and that the plaintiffs had to run the risk of being indicted for retailing intoxicating liquors without license or pay the amount demanded, and they paid it under a protest. Under these circumstances, it would be inequitable to permit the county to hold the funds thus acquired under the color of authority, and it can be recovered. The plaintiffs presented their claim to the county court for allowance, and it was rejected, and this suit was then properly brought against the county. (O. & W. Dig., Art. 230,) [Paschal’s Dig., Art. 1045.]

There are no special exceptions to the petition, and we believe there is a cause of action stated sufficient to obviate a general demurrer, and that the court erred in sustaining it; and, therefore, it is ordered that the judgment of the court below be reversed, and the cause

Demanded.