Brunk v. State

Conviction in County Court of Hall County for violating a city ordinance, punishment a fine of $110.

The city of Memphis, Texas, has fewer than five thousand people and is incorporated under the General Laws. An ordinance was regularly, passed by proper authority making it unlawful to sponsor or run a street carnival or tent show in said city without first obtaining a permit, for which a license fee of $50 was necessary, as well as $5.00 per day for each extra police officer deemed needful during the continuance and because of the presence of said carnival or tent show. A provision of said ordinance also forbade such show to operate within three hundred feet of any business house, residence, etc., within the city limits. One of the provisions of said ordinance provides that if any part of the entire ordinance be held invalid, this should not affect the remainder.

Appellant was prosecuted for a violation of the terms of this city law, two counts appearing in the complaint — one charging the running of a tent show without a permit; and the other that same was run within three hundred feet of certain business houses within the said city. The judgment of guilt was general and can, therefore, be applied to either count, if one be for any reason held bad and the other good.

We are inclined to the view that the city of Memphis is without power to enact an ordinance fixing a fee of $50.00 for a permit to pursue the occupation of operating a tent show or carnival within its limits. Mr. Bouvier says that a permit is a license to do something not forbidden by law. He also says that a license is an official permit to carry on some trade or business, and that a license fee is a tax. See also Hoefling v. San Antonio, 85 Tex. 228. A tax for carrying on a business or trade seems an occupation tax. It is provided in Sec. 1, Art. 8 of our Constitution, that cities and towns may not levy an occupation tax in amount exceeding one-half that levied by the state upon such occupation or trade. Art. 7047, Revised Civil Statutes, enumerates certain trades and occupations, etc., upon which such tax is levied by our state law. Carnivals are named in Subd. 25 of said article, and under certain conditions an annual tax of $50.00 is placed upon them. A tent show is not specifically named in said subdivision or in said article, but from the statement of facts in this case we perceive that appellant possessed a tent in which he gave dramatic performances or plays participated in by actors and for seeing which an admission fee was charged, and this seems covered by the provisions of Subd. 25 of said article, which sets forth that from "any exhibition" whatever which charges a fee, a tax of $10.00 for each performance, or if same be open continuously during the day, an annual tax of $50.00 shall be levied. We are not favored with any brief on behalf of the city of Memphis and are cited to no authorities holding contrary to our view of this matter, and believing that said city has attempted to levy an occupation tax upon the calling of appellant, greater than it is permitted to do by statute or by the Constitution, we are constrained to hold that that part of the ordinance requiring appellant to pay a $50.00 license fee before he can pursue the occupation mentioned in said city, is invalid. This disposes of the offense covered by the first count in the complaint.

As to the other count, however, which seems based entirely on the ground that no one can operate and run a tent show in said city within three hundred feet of a business house without being subject to prosecution, we believe appellant properly held liable in this case. Fire limiting ordinances and those of like purpose and character seem well within the police power of a city, and we believe in this case the ordinance forbidding such carnival or tent show within the named distance from the business houses, residences, etc., in Memphis, is constitutional. No question being raised as to the regularity of the passage of such ordinance, and none as to the fact that appellant did operate his tent show within the forbidden distance of business houses, and no claim that the punishment fixed is not within that set by said ordinance, we must therefore apply the judgment of conviction to the second count in the complaint.

The judgment is affirmed.

Affirmed.

Morrow, P. J., absent.

ON MOTION FOR REHEARING.