Citation Numbers: 2 Tex. Ct. App. 196
Judges: Ector
Filed Date: 7/1/1877
Status: Precedential
Modified Date: 9/3/2021
The applicant, F. A. Schmidt, was tried and convicted in three cases, March 31, 1877, in the recorder’s court of the city of Houston, in Harris county, for the offense of pursuing the occupation of agent of the Union Marine and Fire Insurance Company, of Galveston, within the limits of the city of Houston, without paying the annual occupation tax of $75, as required by an ordinance of the city of Houston prescribing the taxes and licenses to be assessed and collected for the year 1877, passed December 15, 1876 ; and he was sentenced to pay a tine of $50 and costs of court in each case, and warrants of com
It is agreed between the counsel on both sides that the-printed copy of the ordinance of the city, of Houston, attached to the petition for the writ of habeas corpus, viz., “An ordinance passed December 15, 1876, prescribing the-taxes and licenses to be assessed and collected for the year 1877,” etc., be received and considered by the court, in. evidence, as a true copy of said ordinance. The charter of the city of Houston is declared by its terms to be “ a public act,” and is found in the Special Laws of 1874, p. 4; and the amendments to the charter in the Special Laws of 1876, p. 43.
It is essential that the legislature should keep within its proper sphere of action in imposing taxes. In this state it has not been left an entirely discretionary power as to the-subjects and amount of taxation. In other words, the power to determine the persons and objects to be taxed is not trusted, as in most of the states of the American Union, exclusively to the legislative department, but certain limits, have been prescribed to it by the Constitution.
It is essential to valid taxation that the taxing officers be able to show authority for the taxes they assume to impose, in every instance. Taxes are appropriations made by the. people to the state; and to the county and municipal corporations, to be expended in furnishing the proper protection,, security, and such facilities for enjoyment' as properly pertain to government to provide ; and, while it is the duty of" every good citizen to bear this portion of the burdens of the. government, and to pay all. his lawful taxes, it has ever-been held as a chief corner-stone of Anglo-Saxon liberty that the taxing power keep within its proper limits, and be able to show legal authority for every levy of taxes.
The 5th section of the 11th Article of the Constitution reads as follows: “Sec. 5. Cities having more than ten thousand inhabitants may have their charters granted or amended by special act of the legislature, and may levy and assess such taxes as may be authorized by law,” etc.
The first legislature which assembled' after the adoption of the Constitution, by an act approved August 4, 1876 (Special Laws Fifteenth Legislature, 43-49), amended certain sections of the law incorporating the city of Houston, in Harris county. Section 9 of this special act provides that “section thirty-one shall hereafter read as follows: ‘ Sec. 31. That the city council, by a vote of the majority of the whole number of aldermen, taken by yeas and nays and entered upon the journal, shall have- power to assess, license, and tax hawkers, peddlers, auctioneers, theatrical and other exhibitions, shows, and amusements, billiard tables,
At the same session the legislature passed a general act entitled " An act to regulate taxation and. affix the rate of the same.” The 3d section of this last act is as follows: “ Sec. 3. That there shall be levied on and collected from every person, firm, company, or association of persons, pursuing any of the following named occupations, an annual tax (except when herein otherwise provided) on every occupation or separate establishment, as follows:” * * * “ From every life insurance company doing business in this state an annual tax of two hundred dollars, and in every county in which they may do business ten dollars as county taxes ; from every fire and marine insurance company doing business in this state an annual tax of two hundred dollars, and in every county in which they may do business five dollars as county taxes. The state tax due from insurance companies shall be paid by the company to the comptroller of public accounts, whose receipt under seal shall be issued-to the company, certified copies of which shall be evidence of payment of state tax,' and the county collector’s receipt shall be authority to work in any county in this state for which said company has a receipt.”
Section 4 of the same act, amongst other things, provides “ that any one wishing to pursue any of the vocations named in this act, for a less period than one year, may do. so by paying a pro-rata amount of such occupation tax for the period he may desire; provided, further, that no such,
The city of Houston passed certain ordinances on December 15, 1876, prescribing the taxes and licenses to be assessed and collected for the year 1877, one of which is as follows:
Art. 580, sec. 4. “ That there shall be levied on and collected from every person, firm, company, or association of persons, pursuing any of the, following named occupations, an annual tax (except when herein otherwise provided) on every such occupation or separate establishment, as follows : * * * it From every fire and marine insurance company seventy-five dollars.”
The counsel for the petitioner insists that the insurance company, having paid the state occupation tax of $200, and the county tax of $5 in every county in which they do business, as required by section 3 of the “Act to regulate taxation,” etc. (General Laws of 1876, 245), have authority to work in any county in this state where they have paid such tax, and cannot be required to pay any further occupation tax in each town or city ; that it was the plain intent that payment of the state and county occupation tax should be authority to work in any county in the state; that the legislature might very properly have imposed an occupation tax on insurance agencies and agents, but, not having done so, the city of Houston has no power to do so, and has not attempted it; and that, therefore, his client is illegally restrained of his liberty.
Section 9 of the Special Laws of 1876, which we have already given, we believe did .confer the power on the city
These laws to which we have referred were both passed during the same session of the legislature, and both are in harmony with the Constitution. The general tax law did not take effect until ninety days after the adjournment of the legislature.' Unless the general tax law repealed section 9 of the special Lav, they are both in force.
It is a well-settled rule of construction of statutes, and' for the arriving at the legislative intention, that all laws in pari materia, or on the same subject-matter, are to betaken together in order to arrive at the result. Sedgw. 247. “All acts in peri materia,” said Lord Mansfield, “are to be taken together as if they were one law.” Sedgw. 247.
Our supreme court say that "the same legislature is-supposed to be'actuated, in all that it does, by the same mind, and to have at all times had the same objects and" policy, and that it will not change its mind.from' day to day' during the same session ; and nothing short of expressions-' so plain and positive as to force upon the mind an irresistible conviction will justify a court in presuming that it was the intention of the legislature that their acts passed at the same session should abrogate and annul one another. The decent respect due a coordinate department of the government would seem to forbid that such a presumption be indulged by the courts.” Cain v. The State, 20 Texas, 360.
If the maximum occupation tax which the legislature has authorized the city council of Houston to levy on such insurance companies should amount to a prohibition, the
In this case F. A. Schmidt, the applicant, resides in the city of Houston. It is not denied that he does the business-of the Marine and Fire Insurance Company of Galveston, in the city of Houston; that he does the substantial and profitable work of said insurance company of Galveston in the municipality of Houston. By taking the provisions of the Constitution, the different sections of the general and special laws, and the ordinances which we have copied herein, we believe it is a fair interpretation of them to hold that the applicant, Schmidt—call him person, agent, or what we will—is liable for this city occupation tax for pursuing the business of the Marine and Fire Insurance Company of Galveston, in the city of Houston, and that, if delinquent, he is liable to punishment under the ordinances, of the city therefor. If not, how easy would it be for all foreign insurance companies doing business in this state through agents who own their office furniture to evade the payment of taxes. This court, having examined the return and all documents attached, and heard the testimony on both sides, and finding no error in the lower court, do remand the said applicant into the custody of the said marshal of the city of Houston.
Ordered accordingly.