Victor Tarde v. Hermann Benseman, 31 Tex. 277

Lindsay, J. — This was a suit brought by the appellee, as relator, against the appellant, upon a penal statute prohibiting the keeping of a billiard table without having first obtained a license therefor. The suit was brought by the assessor and collector in the character of an informer, as a qui tarn action, as is averred in the petition itself, in which he states he sues as well for the State of Texas as for hirhself.

Certainly the assessor and collector might become the informer as well as another, and be entitled to one-half the penalty prescribed by the statute; and, being the real actor in this suit, he was entitled to receive the whole judgment, one-half of which would have to “ be accounted for by him and paid into the state treasury,” as directed by the express language of the statute. There was no necessity for the judgment to direct the assessor" and collector to pay himself, nor to pay into the state treasury.

The collection of the judgment would have created, ipso facto, his liability to the state treasury, which could not be enhanced by the judgment of the court in this case. But the judgment of the court directed payment to the county treasurer, which was certainly an error, of which the appellee might have complained, but not the appellant.

Of the jurisdiction of the district court in a case of this kind, concurrently with that of a justice of the peace, we entertain no doubt,, as the statute itself provides that the suit may also be brought before “any court of competent jurisdiction.” The general jurisdiction of the district courts extended to all cases of penalties, forfeitures, and escheats, and they possessed full authority by the constitution to take cognizance of all such cases.

The real and important question in this case was raised by the demurrer to the special defense set up in avoidance of the action, to wit, the keeping of a billiard table for amusement and not for profit. If in this case the keeping of the billiard table was an “ occupation,” the occupation was subject to the license tax imposed by the statute, because the constitution expressly warrants such legislation. The special defense set up made the issue directly, whether the keeping of the billard table in this case was an “ occupation,” as contemplated by the constitution and the statute.

If the facts stated in the special plea be true, that is, if the billiard table was simply kept for amusement, and not with a view to profit, was the owner, or the person who gave some attention to it while others were amusing themselves by playing on it, engaged in an occupation which was subject to taxation under the statute? What is an occupation in contemplation of the constitution and the law? The connection in which the word “occupation” stands in the constitution -would seem to give some indication 'of what was intended by it.

It says: “Pursuing any occupation, trade, or profession.” Certainly the two latter, “trade or profession,” import profitable pursuits. Why not the former? All lexicographers, in defining this word in the sense of business, give the word that complexion. It is the. usual and customary acceptation of the term. If this be so, (and we think it is quite obvious,) and the Milliard table was simply kept for amusement, and not for profit, then it was not a proper subject of taxation in this way. The same

section of the constitution which empowers the legislature to tax “occupations” declares: “Taxation shall be equal and uniform throughout the state. All property in this state shall be taxed in proportion to its value,” &e. . This mode of taxation of a billiard table, merely as property, would conflict with the constitution. We think, therefore, that the demurrer to the special plea of the defendant in the district court ought to have been overruled, and the proof let in to show the character of keeping of the billiard table. For these reasons the judgment is reversed and the cause remanded. Reversed and remanded.