Ex Parte Williams , 21 L.R.A. 783 ( 1892 )

Relator, a practicing attorney of the State of Texas, charged upon affidavit and complaint with the offense of unlawfully engaging in the occupation of practicing law without paying the tax due thereon, was arrested on the 19th of September, 1892, under a warrant issuing out of the County Court of Tarrant County.

On the 20th of September, 1892, relator presented his petition for habeas corpus to the county judge, who refused to grant the writ. An application was then made to one of the judges of this court, who granted the writ, returnable before this court at this term. The petition sets up all the facts necessary to the determination of the cause. It admits that petitioner is a duly licensed attorney of the State, and engaged in the practice of his profession; that the occupation tax was levied; that he had failed to pay said tax; but denies his liability to pay an occupation tax, upon the following grounds:

(1) That having been regularly admitted and qualified as in attorney at law, he became an officer of court, and part of the judiciary of the State; and the levy of said tax is in violation of section 1, article 2, of the Constitution, which forbids one department to interfere with the powers of the others.

(2) Because said tax violates section 10, article 1, which provides that the accused shall have the right to be heard by himself or counsel, or both, and this tax, by disfranchising, counsel, may operate against that right.

(3) Because said right violates section 1, article 8, in not being equal and uniform.

(4) Because article 110, Penal Code, is unconstitutional, in that it prohibits the practice of law, unless the attorney, already licensed under the judgment of the court, should procure a new license from the county clerk, thereby impairing the obligation of a contract and interfering with a vested right.

The relator was prosecuted under article 110, Penal Code, which reads: "Any person who shall pursue or follow any occupation, calling, or profession, or do any act taxed by law, without first obtaining a license therefor, shall be fined in any sum not less than the amount of taxes so due, and not more than double that amount."

1. The first ground has been so earnestly pressed, both in oral argument and brief, that we will consider it at length. If relator expects to escape the taxing power of the State, he must show clearly his constitutional right so to do. In speaking of the power of taxation, Mr. Cooley declares it is one so unlimited in force and searching in extent that courts scarcely venture to assert it is subject to any restrictions, except such as rest in the discretion of the authority which exercises it. It reaches to every trade or occupation, to every object of industry, use, or employment Cool. Const. Lim., ch. 14, p. 587.

The right of the State to tax professions and occupations, unless there is some special constitutional prohibition, seems to be generally conceded. Tied. Lim., sec. 101, p. 292; The State v. Hayne, 4 Rich. (S.C.), 403; Ould v. Richmond, 23 Grat., 469; Commonwealth v. Moore, 25 Grat., 951; Cousins v. The State, 50 Ala. 113; Stewart v. Potts, 49 Miss. 749; Morrill v. The State, 38 Wis. 428; Young v. Thomas, 17 Fla. 169.

Is there any special constitutional inhibition against taxing lawyers? Article 8, section 1, of the Constitution, provides that the Legislature may impose occupation taxes both upon natural persons and corporations other than municipal doing business in this State. * * * Persons engaged in mechanical and agricultural pursuits shall never be required to pay an occupation tax.

It is obvious from the express terms of the Constitution that the only exemptions from the all-pervading power of taxation are the agricultural and mechanical pursuits; and under the familiar rule of construction, expressio unius est exclusio alterius, the occupation of a lawyer would be subject to taxation.

But it is claimed that there is an implied exemption from this tax in favor of lawyers, arising from the fact that as officers of the court they are a part of the judicial system of the State, and if the right to tax be conceded the "Legislature could tax them out of existence. The right to tax implies the power to destroy. It could thereby greatly impair or destroy the judicial department. Now, in the first place, it can not be contended that lawyers are constitutional officers. All terms of office not otherwise fixed by the. Constitution are limited to two years. Sec. 30, art. 16. The office of an attorney is for life. They are not regarded as public officers, for their duties appertain only to the courts in which they are authorized to practice. Ex Parte Garland, 4 Wall., 333; Ex Parte Law, 35 Ga. 285; Ex Parte Yale, 24 Cal. 241.

But, conceding them to be officers, still that would be no ground for exemption from taxation. The proposition so strongly relied on by counsel, "that the State call not tax Federal agencies," has no application here. Mr. Cooley says: "The United States may tax the salaries or compensation of its own officers, and the State may tax those of the State officers, though neither can tax the compensation received by the officers of the other." Cool. Tax., 391. But, ill the second place, the contention that the Legislature may cripple or destroy the judicial department is more plausible than sound. We certainly are not to presume that a co-ordinate department of the government would abuse its power by imposing a prohibitory tax on the practice of law. The objection goes to the existence of the power, rather than to any probability of its exercise. It is, indeed, an objection that could be urged against any exercise of the taxing power. Thus, the Legislature ought not to have the power to tax land, for fear it might confiscate; nor personal property, because the tax imposed might exceed its value; nor any occupation, business, or pursuit, because they could be taxed out of existence, and the livelihood of many be destroyed. The answer to tall such objections is to be found in "the law and order instincts" of the people, and their capacity for "self-government." In the language of Chief Justice Marshall: "The only security against, abuse lies in the structure of our government, and the influence of the constituency over the representatives." He says the people of a State give their government a right to tax themselves and their property, and proscribe no limit, as the exigencies of the government can not be measured or limited, resting confidently on the interest of the legislator, and on the influence of the constituency over the representative. McCulloch v. Maryland, 4 Wheat., 428.

But this contention of an indirect crippling of the judicial department by the imposition of a small tax on lawyers grows very tenuous when we think how directly the same result may be accomplished if the Legislature was so disposed. The license of an attorney grows out of the requirement of the legislative act. It is not granted to him simply as a personal privilege, but also as a protection to the community from the evils resulting from a want of professional qualifications. The same public policy requires there should be licensed preachers, physicians, teachers, and other professional occupations.

Now, if the Legislature, intending to destroy the legal class, was to minimize, or even repeal, all requirements for professional learning, and allow any one who desires so to do to argue cases in court, all licenses would ipso facto become nugatory, and cease to give any distinctive standing to their holders. In Fletcher v. Peck, 6 Cranch, 136, Judge Marshall declared that the question, how far the Legislature — the law-giving power — may involve every other power in cases where the Constitution is silent, has perhaps never been, and never can be, definitely settled.

Again, if the possibility of abuse is an argument against the power, the Legislature might impose a heavy tax upon litigation, and thereby strike directly at the usefulness of the courts and the business of the lawyers; or again, the Legislature might fail to make an appropriation for the support of the judiciary, and thereby suspend the operation of that department, which would have no power to compel the Legislature to levy any tax or make any appropriations for their benefit. But there is no danger of any such revolutionary emergency. The people know how to govern themselves and uphold their government. The ballot, that voices the will of the people, guards their most sacred rights, and tempers legislative acts with conservatism. We can safely assert, the legal profession will be the last in this government to be endangered. In every period of our history its members have been, as they always will be, honored and trusted more than any other class by the people; and we may say, with just pride, they have not been undeserving of this confidence.

2. There is certainly no force in the proposition that by the imposition of this tax some defendant may be deprived of counsel. As is well said by the Assistant Attorney-General in his able brief in this case: "The presumption is absolute, that all good citizens will obey their State's laws, and pay the taxes imposed. There will always be lawyers who obey the law, and pay their occupation taxes. The person accused of crime will always be within reach of lawyers in a position to defend him by reason of having paid their tax. Until the criminal can show that he has actually been deprived of legal counsel by reason of this occupation tax, the lawyer can not interpose this plea, that can only inure to the benefit of the defendant. It is a defense peculiarly personal, and this court would not declare the occupation tax law unconstitutional on the ground that some criminal might be deprived of counsel by reason of the law, although no such case arose, or ever will arise. This contention is utterly without foundation, for the reason that this provision was put in the Bill of Rights not to operate upon contingencies, but upon actual occurrences; and we have none such here. Many reasons could be urged against this position, but it is deemed so frail that it is not necessary to deal with it further than to draw a plain parallel. We might with equal propriety charge the Legislature with murder because some person gets snake bitten, and can get no whisky to drink for it, and dies on account of the Legislature imposing an occupation tax on liquor dealers, as to say that a criminal is deprived of the right of appearing by counsel on account of the Legislature placing an occupation tax on lawyers; or might, with the same propriety, accuse the Legislature with murder because some persons die on account of a tax on traveling physicians. The cases are about on a par." See Tax Cases, 8 Heisk., 660.

3. The objection that the tax is not equal and uniform is not tenable. The rule is, that taxation will be equal and uniform if all persons in the same calling, trade, or profession are taxed alike. Albrecht's case, 8 Texas Ct. App. 226[8 Tex. Crim. 226]; Texas Banking and Ins. Co. v. The State, 42 Tex. 640; Tied. Lim., sec., 101, p. 282; Cool. Const. Lim., 128, 138; Hodgson v. City of New Orleans, 21 La. Ann., 301.

4. That in requiring a new license it impairs the obligation of a contract. We do not agree to the proposition asserted in the Languille case, 4 Texas Court of Appeals 312[4 Tex. Crim. 312], that a lawyer's license is a naked privilege, revocable at pleasure by the State. We think there is no question that a lawyer holds his license during good behavior, and can only be deprived of it for misconduct, ascertained and declared by a judgment of the court, after opportunity to be heard has been afforded. Ex Parte Garland, 4 Wall., 333. But to tax the employment of a vested right has never been held to impair it, or interfere with its exercise. The question before us, then, is not whether defendant shall be deprived of the right to practice law by forbidding the exercise of the right, or by annexing conditions impossible of performance, as in the Garland case, but whether, having been licensed and permitted to practice, he may be taxed for the privilege granted by the State; for, though a license be a vested right, yet, unless there is something in the privilege by which the State has relinquished the right of taxation, it is presumed to be accepted subject to the power of the State to impose upon its exercise a share of the public burdens by way of taxation. Bank v. Billings, 4 Pet., 553.

This question has been repeatedly before the courts of the country, and, with but a single qualified exception, they have declared that the practice of the legal profession is subject to an occupation tax, like any other occupation. In the leading case of Ould v. Richmond, 23 Grattan, 464, the court says that while the lawyer could not be deprived of his right except by the judgment of a court, it was also a valuable civil right and privilege, to which were attached valuable immunities and pecuniary advantages, and is a fair subject of taxation by the State. Weeks, Attys. at Law, sec. 41; Tied. Lim., 101; The State v. Hayne, 4 S.C. 410; Jones v. Page, 44 Ala. 658; Cousins v. The State, 50 Ala. 113; In re Knox, 64 Ala. 465; Mayor v. Hines, 53 Ga. 616; Wright v. Mayor, etc.,54 Ga. 645; Holland v. Isler, 77 N.C. 1; Wilmington v. Macks,86 N.C. 88; The State v. King, 21 La. Ann., 201; The State v. Wapples, 12 La. Ann., 343; Young v. Thomas, 17 Fla. 170; Ohio v. Gazley, 5 Ohio, 22; The State v. Hibbard, 3 Ohio, 63; The State v. Poudfit, Id.; City of St. Louis v. Laughlin, 49 Mo., 559.

Neither do we see any objection to the requirement by the statute of a license to be issued to attorneys who propose to practice law. This license, issued by the county clerk, is not issued to any one who may apply for it and pay the tax. It can not of itself authorize any one to practice law. It is good only in the hands of one who has been previously licensed as an attorney at law. This county clerk's license is simply a convenient method of collecting the tax. Though called a "license," it does not purport to, neither does it, confer the privilege of being a lawyer upon its face. It is simply a receipt for the occupation tax. License Tax Cases, 5 Wall., 472; Brown v. Maryland, 12 Wheat., 555; Ward v. Maryland, 1 Am. Rep., 54; Cool. Const. Lim., 496.

Our conclusion is, that the lawyers of the State are liable to the occupation tax, and we think the County Court did not err in refusing the writ of habeas corpus. The prayer of petitioner is hereby refused, and he is remanded to the custody of the sheriff of Tarrant County.

Relator remanded.

Judges all present and concurring