H. A. McMeans, Tax Collector, v. R. W. Finley; R. D. Byrom, Tax Collector, v. R. W. Finley, 88 Tex. 515

GAINES, Chief Justice. —These cases present substantially the same questions, and will be disposed of in the same opinion. They proceed upon the theory that

article 5049 of the Revised Civil Statutes, adopted by the present Legislature at its regular session, places a tax upon prize fighting, and licenses it as an occupation. The statutes make it the duty of the tax collector of each county to issue a license for each occupation upon which a tax is levied, upon the application of any person desiring to pursue such occupation, and upon his paying the tax levied thereon; but he is prohibited from issuing such license except upon a blank furnished by the Comptroller for that purpose.

It is the duty of the Comptroller to furnish him with the blanks, and it would seem that it is his right to demand the performance of that duty, and upon the Comptroller’s refusal to comply, to compel such performance by the writ of mandamus. In the first case, the tax collector of Hays County alleges, that he has demanded blank licenses for prize fights of the respondent, as Comptroller of the State, and that the latter has refused to furnish them. He prays that the latter may be compelled to comply with his demand.

In the second case, the tax collector of Williamson County alleges, that application has been made to him for a license for a prize fight, and that the State and county taxes have been tendered by the applicant; that he has demanded of the Comptroller the proper blanks, and that the demand has been refused. He also prays for a peremptory writ of mandamus to compel the officer to furnish the blanks. The Comptroller in neither case denies the facts alleged, but claims there is no law licensing prize fighting in this State.

Since these suits were instituted, the Governor of the State has convened the Legislature for the purpose of passing a law prohibiting prize fighting, and making it a penal offense. The Legislature has met in pursuance of that call, and has passed'an act intended to effectuate that object, which, if valid, took effect from its passage. It is conceded, that if this act be operative, the writ of mandamus must be refused in these cases. But it is claimed, on behalf of the petitioners for the respective writs, that the act is in violation of

section 35 of

article 3 of the Constitution, and is therefore void. This presents the first question for our determination. The constitutional requirement in question reads as follows: “No bill (except general appropriation bills, which may embrace the general subjects and accounts for and an account of which moneys areappropriated) shall contain more than one subject, which shall be expressed in its title. But if any subject shall be embraced in

an act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be so expressed.” Omitting the emergency clause, inserted for the purpose of giving it immediaté effect, the statute under consideration reads as follows: “An Act to prohibit prize fighting and pugilism, and fights between men and animals, and to provide penalties therefor, and to repeal all laws in conflict therewith. “Section 1.

Be it enacted by the Legislature of the State of Texas: That any person who shall voluntarily engage in a pugilistic encounter between man and man, or a fight between a man and a bull or any other animal, for money or other thing of value, or for any championship, or upon the result of which any money or anything of value is bet or wagered, or to see which any admission fee is charged, either directly or indirectly, shall be deemed guilty of a felony, and upon conviction shall be punished by imprisonment in the penitentiary not less than two nor more than five years. “Sec. 2.

By the term ‘pugilistic encounter,’ as used in this act, is meant any voluntary fight or personal encounter by blows by means of the fist or otherwise, whether with or without gloves, between two or more men, for money or for a prize of any character, or for any other thing of value, or for any championship, or upon the result of which any money or anything of value is bet or wagered. “Sec. 3. That all laws and parts of laws in conflict herewith be and the same are hereby repealed.” It is admitted that the subject is expressed in the title, but the contention is, that the act contains more than one subject.

It was doubtless intended by

section 35 to prevent certain practices sometimes resorted to in legislative bodies to secure legislation contrary to the will of the majority: one, that of misleading members, by incorporating in the body of the act some subject not named in the title; the other, that of including in the same bill two matters foreign to each other, for the purpose of procuring the support of such legislators as could be induced to vote for one provision merely for the purpose of securing the enactment of the other.

Similar constitutional requirements are found in the former Constitutions of this State, and in many of the Constitutions of other States; and in construing them the courts have kept in view the evils intended to be remedied, and have uniformly held, that the provision as to one subject does not apply where two matters are incorporated in the act which are germane to each other and parts of the same general subject matter. Let us apply this rule to the act in question.

Its object is to suppress contests for physical supremacy, whether between man and man or man and beast, by prohibiting such contests, whether entered into for a prize or a wager, or as a public exhibition. The subject matter of the act is such physical contests, and it is but one subject, within the meaning and intent of the Constitution. The fact that “a pugilistic encounter between man and man” and “a fight between a man and a bull or any other animal” are specified, makes the object of the law, nevertheless, one in legal contemplation and the subject matter single.

If the Legislature, instead of entering into specifications, had defined the offense in general terms, and had particularized neither fights between men nor fights between men and beasts, it seems to us there could have been no serious question as to the validity of the law; and yet the effect of the present act is precisely the same. Ret us suppose

an act were passed making it a felony to steal “any domestic animal,” without specifying any animal in particular, could it be doubted that such

an act contained but one subject? And yet

an act which declared that any person who should steal any horse or cow should be punished by confinement in the penitentiary would be less comprehensive, and could not therefore be void, as embracing more that one subject. A contrary construction would render legislation practically interminable, and would convert a wise provision of the Constitution into a serious hindrance upon the lawmaking power. Delivered October 14, 1895. For the reasons given, we are clearly of the opinion that the act is valid. The writs of mandamus prayed for in these cases must therefore be refused.

If there was any law in force at the time the petitions in these cases were filed which made it the duty of the comptroller to issue occupation blanks for prize fights, it is repealed; and the officer can not be commanded to do that which it is not now his duty to do. But it is insisted, that if that part of

article 5049 of the new Revised Civil Statutes relating to “fights between man and man” is valid, and was not repealed by that

article of the revised Penal Code which prohibits prize fights, the petitioners were entitled to their remedy at the time the suits were instituted, and that therefore they should, in any event, recover their costs. But in this proposition we do not concur. These are suits at law, and in such cases the statute is peremptory. It provides, that “the successful party shall recover of his adversary all the costs expended or incurred therein, except when it is or may be otherwise provided by law.” Rev. Stats. 1879, art. 1421. We know of no law that affects this provision as applied to cases of this character.

If it were otherwise, in view of the labors devolved upon the court, we should not be inclined to enter upon the work of deciding the intricate questions originally involved in the suits for the purpose of determining a mere issue of costs. Robinson v. The State, 87 Texas, 562; La Coste v. Duffy, 49 Texas, 769; Gordon v. The State, 47 Texas, 208. ' The writs of mandamus prayed for are refused; and each of the petitioners will pay the costs incurred in his suit. Writs refused.