L. B. Thompson v. The State, 17 Tex. Ct. App. 253

Willson, Judge. By the act of May 4, 1882, which provides for levying occupation taxes, it is provided that there shall be levied ■on and collected “ from every person, firm or association of persons selling, or offering for sale, the illustrated Police Mews, Police Gazette, and other illustrated publications of like character, the sum ■of $500 in each county in which such sale may be made or offered ■to be made.” • (Geni.

Laws, Called Session 17th Leg., sec. 3, p. 20.) This conviction was had upon an indictment which charges the defendant, in proper form, with following the occupation and business of selling, and offering to sell, the illustrated Police Mews and Police Gazette, ivithout paying the tax prescribed by law There is but a single question presented by the record for our determination, and that is the constitutionality of the above quoted statutory provision. Counsel for appellant contends that said law is unconstitutional for two reasons: 1.

That the tax levied by it is not “ equal and uniform upon the same class of subjects.” (Canst., art. YÍII, secs. 1, 2.) 2. That it is oppressive, vague, uncertain, indefinite, and beyond the power of the Legislature. We will consider these propositions in their order. What class of subjects is embraced in this law?

Its language plainly answers the question; “ the illustrated Police Mews, Police 'Gazette, and other illustrated publications of like character.” Whatever the publication may be, if it be illustrated, and of like character with the two named publications, it is included in the class of publications made subject to the tax. This character of publications constitute a particular class under the law, distinct from other publications, the class being known and determined by the characteristic features of the two publications named as examples.

It is immaterial what may be the number of publications, whether few or many, which come within this class, still, if the tax levied reaches ■all belonging to the particular class, it is not obnoxious to the objection that it is not equal and uniform. It is only when individuals ■of a class are singled out for exemption, that this objection can obtain. (Cooley on Taxation, 128; Burroughs on Taxation, §§ 53, 54.) This law exempts no publication belonging to the class represented ■by. the two named publications, from the tax levied.

We conclude, ■therefore, that the tax levied is equal and uniform; applicable to all publications coming within the class designated. The second objection is also, in our opinion, untenable.

The taxing power must be left to that part of the government which is to •exercise it, that is, the Legislature, and “it is only where statutes are passed which impose taxes on false and unjust principles, or operate to produce gross inequality, so that they cannot be deemed in any just sense proportional in their effect on those who are to bear the public charges, that courts can interpose and arrest the course of legislation by declaring such enactments void.” (Com. v. Savings Bank, 5 Allen, 428; Cooley on Taxation, 126, 127.) Mr.

Cooley says; “The power to impose taxes is one so unlimited in force and so searching in extent, that the courts scarcely venture to declare that it is subject to any restrictions whatever, except such as rest in the discretion of the authority which exercises it. It reaches to every trade or occupation; to every object of industry, use or enjoyment; to every species of possession.” (Cooley on Const.

Lim., 593.) And it was said by that great jurist Chief Justice Marshall, that it is “ unfit for the judicial department to inquire what degree of taxation is the legitimate use, and what degree may amount to the abuse of power.” (McCulloch v. Maryland, 4 Wheat., 430.) It is not for this court, therefore, to say whether this tax is oppressive. That was a question for the Legislature to pass upon, and the judiciary has no right to inquire into it.

It is to be conclusively presumed that the Legislature had good and sufficient reasons for imposing this tax upon persons selling or offering to sell the publications named, and all other publications of the same character. The law is, in our opinion, sufficiently definite and certain. It is leveled at a well known class of publications which were regarded by the Legislature as immoral and pernicious in their tendency, and there can be no misunderstanding the class of publications intended .to be embraced in the act.

In construing a statute we must look to the intent of the Legislature in enacting it, and not alone to its language.

It is.a matter of notoriety that when this law was enacted an illustrated publication known as the Police Sews, and another known as the Police Gazette, were offered for sale, and wrere sold in all the cities of the State, and upon the passenger trains of all the railroads in the State; and, further, that these publications were of an indecent, immoral and pernicious character, and that many of the citizens of the State demanded some legislation that would prevent, restrict or regulate this class of publications.

These are facts of such notoriety that the courts will take judicial notice of them in arriving at the meaning, scope and purpose of the act in question. (1 Whart. Ev., § 330; Stearnes v. The State, 21 Texas, 705; Allbrecht v. The State, 8 Texas Ct. App., 216.) The tax imposed by this law is not a tax upon property, but upon a privilege, and is a police regulation as well as a tax for revenue. The power of the Legislature to levy such a tax, in the language of Justice Hiller, “is, and must be from its very nature, incapable of any very exact definition or limitation.

Upon it depends the security of social order, the life and health of the citizen, the comfort of an existence in a thickly populated community, the enjoyment of private and social life, and the beneficial use of property. It extends to the protection of the lives, limbs, health, comfort and quiet of all persons, and the protection of all property within the State; and persons and property are subjected to all kinds of restraints and burdens, in order to secure the general comfort, health and prosperity of the State.

Of the perfect right of the Legislature to do this, no question ever was, or, upon acknowledged general principles, ever can be made, so far as natural persons are concerned.” (Slaughter-House Cases, 16 Wallace, 62.) In support of our view, that the law in question is valid; that it was fully within the power of the Legislature to enact it, and that it is not obnoxious to any of the objections made to it, we cite the following additional authorities: Cooley on Taxation, 396,403,404; Cooley on Const. Lim., 713, 725, 748, 749; Burroughs on Taxation, § 77; Languille v. The State, 4 Texas Ct. App., 312; Higgins v.

Rinker, 47 Texas, 393. It is no sufficient objection to the law levying the tax that there exists another statute for the prevention of the circulation of indecent and immoral publications. (Penal Code, art. 343.) It was within the discretion and power of the Legislature to enact as many statutes upon the subject as were thought by them to be necessary to regulate, restrict or prohibit the evil which they were seeking to remedy. We are of the opinion that there is no error in the conviction, and the judgment is affirmed. Affirmed. [Opinion delivered December 3, 1884.]