Edward H. Napier v. J. W. Hodges, 31 Tex. 287

Lindsay, J. —This case comes before this eojirt in a very defective way for revision. There is no statement of facts, no bill of exceptions, no motion in arrest of judgment, nor for a new trial, in the record. We are left, then, by the pleadings and an exhibit in the petition, to determine upon the correctness of the judgment sought to be reversed. The question which appears to be raised by the pleadings is, has the legislature the power, by two different statutes, to make two different assessments upon the same subject of taxation in the same period of time?

Or, if it has that power, did it so intend to exercise it in the passage of the acts of the 27th of October, 1866, and of the 6th of November, 1866, upon the subject of retailing spirituous, vinous, and other intoxicating liquors in quantities less than a quart?

By the first act the retailer is required to execute and deliver to the county treasurer a bond, payable to the county judge, with two or more sureties, embracing certain specified conditions and stipulations therein set forth, and to be filed in the clerk’s office of the county, and then to pay into the county treasury a license tax, at the rate of $300 per annum, when the clerk of the county court is authorized to issue a license for the time he applies and pays for.

This license is indispensable, and is the only authority to the retailer to sell such liquors in quantities less than a quart at all, under the law as it now stands. For a violation of this bond he is made amenable, both to a suit upon it and to a penal prosecution, for a misdemeanor. By the second act the retailer, who is “ pursuing or about to pursue” this “occupation” of selling such liquors in quantities less than a quart, is assessed with a tax at the rate of $300 per annum for the benefit of the state treasury, and is required by another act, approved November 10, 1866, (Sess.

Acts, 1866, sec. 10, p. 142,) to make application to the assessor and collector, and pay the amount to him prior to pursuing such occupation, under a penalty of fifty per cent, and costs for failure to do so, within five days thereafter. These are the several acts and their general provisions, the proper construction of which is involved in the determination of the rights of the parties in this suit. Upon the policy of such legislation we have no right, as a court, to comment.

But into the power of the legislature, and its intention in the passage of these acts, it is the province and the duty of this court to inquire whenever the subject is brought before it. These several acts, upon the subject of retailing spirituous liquors, are certainly unskillfully drawn up, and are calculated to produce, and do produce, confusion in their practical application.

It is no wonder that the retailer is in great doubt whether, as a matter of duty, he is bound by law to pay a tax of $300, both to the county treasurer and to the assessor and collector, for the privilege of retailing, which retailing seems to be defined by the law, as it now stands, as selling in quantities less than a quart. Selling by the quart; but less than a gallon, is not retailing in contemplation of the statutes, although a tax of $100 is also imposed upon that method of vending spirituous liquors.

There is a want of explicitness and method in these different taxations which leaves the minds of the tax-payers, who read the law to understand their duty to the government, in great perplexity and doubt, and, when practically enforced' against them amid these doubts, it is natural enough- that dissatisfaction should arise. The mind is apt to conclude that it is wrong to assess two taxes upon the same thing at the same time. Hence it is concluded, whenever it is done, that power is wrongfully and unjustly exercised. This, however, does not necessarily follow.

With us the question is simply, has the legislature the power to impose this tax in the way it has undertaken to do it? That is, can it assess a tax of $300 for the benefit of the county treasury, and of $300 for the state treasury, in the same period of time, upon the business of retailing spirituous, vinous, and other liquors? We have no hesitancy in saying, that the legislature has such power, however unwisely or oppressively it may be deemed to have exercised that power.

By the constitutions of both 1845 and 1866 it is declared, “ The legislature shall have power ‘to lay an income tax, and to tax all persons pursuing any occupation, trade, or profession,’” with a restriction alone upon the power to impose it upon “ agricultural ” and “ mechanical” pursuits. Retailing being an occupation which is pursued for profit, there is no limitation upon the legislature as to its powers of taxation over the subject, except the limitation imposed by its own discretion. So far as its power is concerned, it may go to the very verge of an interdict.

It is only to be tempered by its own wisdom and its responsibility to its constituency. In the enactment of these laws, then, was it the purpose of the legislature to exact both of these taxes from the retailer? These several acts of the legislature were passed at the same session, with short intervals between the periods of their approval by the governor.

It is a rule of construction, recognized generally and adopted by the courts of this state, that two statutes, in pari materia, enacted at the same session, are considered as one statute, and must be construed together, and each must be upheld, unless their provisions ' are absolutely repugnant to each other. It is also a general principle of construction, in reference to statutes generally, whether passed at the same session or not, that “ a repeal by implication is not favored” whenever it is possible to reconcile the two acts of the legislature together.

There is no repugnancy between the statute of the 27th of October, 1866, and that of the 6th of November, 1866. In the first it was the purpose of the legislature to guard against abuses of the privilege of retailing, by requiring a bond with stringent conditions, and making it a misdemeanor for their violation. In the second the main obj ect seems to have been to raise revenue upon a subject of taxation which it was supposed by the legislature would in all probability prove a fruitful source of revenue.

We are satisfied, therefore, that it was the intention of the legislature that both of these taxes should be collectable. The whole is an occupation tax which by the constitution the legislature had a right to impose. It is virtually the imposition of a tax of $600 upon the occupation of retailing spirituous, vinous, and other liquors, and, from motives of policy, collected in two different ways, and by the political power of the state directed into different channels of adjustment and appropriation. Both taxes are hut the occupation tax at last. The mere requisition of a license does not change its nature.

If what is regarded as the occupation tax hy the attorney for the appellant was paid to the assessor and collector, without the other payment to the county treasurer, and the obtention [obtaining?] of the license” from the county judge, the retailer would not be shielded from prosecution for a misdemeanor. He would be still liable to the penalties of the law. But it is insisted that it was not the intention of the legislature to collect both taxes, because of the provision of the 7th

section of the act approved 6th November, 1866. That provision is, “ that all licenses taken out to pursue any taxable calling or occupation before the 1st day of January next shall expire on that day, and if the occupation be one upon which a tax is levied in

section 5 hereof, the pro rata amount for the unexpired time shall be credited on the amount as levied by this act.” Observe, it is the license tax levied by this act. It is not the tax to be assessed by the assessor and collector. This credit is not to be made by the assessor and collector, but by the county judge from whom the license to retail is obtained. As licenses thereafter were to be granted quarterly, beginning with the commencement of the year, a sense of justice, it is supposed; prompted the legislature to direct the credit upon those thus arbitrarily suspended at the beginning of the year.

This provision by no means warrants the conclusion which has been drawn from it. The purpose of the legislature seems to have been to interdict retailing altogether, unless under license, and to prescribe a method, ex eoncesso, by which the assessor and collector of the state taxes might know upon whom to call, and whom to hold responsible for the tax assessable for retailing. The law presumes that no citizen will violate the statutes of the state.

And when the retailer has procured his license, as the law requires, to engage in this occupation, then the assessor and collector has a claim upon him for the state tax. If the retailer engages in it without license, he is obnoxious to the penalty of the law, whether he has paid the assessor and collector or not. A conscientious citizen, who understands the law, and is mindful of his obligations to it, can never become responsible to the assessor and collector for this tax until he procures a license from the county judge for retailing. The 10th

section of the “ act for the assessment and collection of taxes” (Sess. Acts 1866, p. 142) makes it manifest that the legislature contemplated that licensed retailers were the persons who were to pay this tax to the assessor and collector. And, if they are licensed retailers, they must obtain license from the county judge; and to obtain that license they must first pay the tax prescribed in the statute. The 10th

section also requires the retailer, who has procured his license, to make application to the assessor and collector within'* five days of the commencement of his occupation, or within five days after the expiration of a license, (previously obtained, and running beyond the 1st of January, 1867, obviously, must be meant,) under a penalty of fifty per cent, additional and assessor’s costs. This reference to the expiration of the license, in this connection, must be to licenses already in existence at the passage of the law.

But the law still preserves and per.petuates its force and vigor, in requiring the retailer in this occupation “to make application to,” and “make payment of the amount due,” the assessor and collector “ within five days,” at least, after the commencement of his occupation. Thus we are well convinced, from the whole context of all these statutes upon this subject, that the appellant was required to pay both of these taxes.

For this reason, as well as for the defectiveness of the record, in failing to exhibit a statement of factspand in not presenting any other action in the court below to enable us to determine whether errors were committed upon the ' trial, the judgment is Aeeirmed.