Blessing v. City of Galveston

• Decision Date: 01 January 1874
• Parties: L. T. BLESSING AND OTHERS v. THE CITY OF GALVESTON.
• Court: Texas Supreme Court

42 Tex. 641

L. T. BLESSING AND OTHERS

v.THE CITY OF GALVESTON.

Supreme Court of Texas.

1874.

APPEAL from Galveston. Tried below before the Hon. A. P. McCormick.

On the 23d September, 1871, Solomon T. Blessing, Theodore B. Stubbs, F. W. Bartlett, Joseph Seitz, William B. Sorley, and John W. Wicks and James H. Trezevant, the two persons last named being partners under the firm-name of Wicks & Trezevant, filed in the District Court of Galveston county, their petition in behalf of themselves and all others of like interest, who might desire to become parties, in order to avoid a multiplicity of suits, and in their petition alleged, in substance, that the Act of 16th May, 1871, incorporating the city of Galveston, is an illegal, unconstitutional, and void act, and a pretended grant of a new charter to the city of Galveston, and not a law of the land, within the meaning of Section 16 of the Bill of Rights; and that said Act was not read on three several days in each house, while on its passage through the Legislature, as required by Section 24, Article 3, of the Constitution, and the rule requiring every bill to be so read was not dispensed with by a vote of four-fifths of the house, and that when said Act was ordered to be engrossed, and passed to its third reading, it was considered, engrossed, and read, when no quorum was present.

The petition alleged further, that Article 7, Title 3, of the charter creating the Recorder's Court, is repugnant to and unauthorized by Section 1, Article 5, of the Constitution, and that the ordinance of the city of Galveston of July 5, 1871, divides citizens into different classes, and prescribes different rates of taxation on classes of persons pursuing the same occupation, and different rates for different classes, in violation of the rule of equality and uniformity of taxation prescribed in Section 19, Article 12, of the Constitution. That, under this ordinance, taxes differing in rate and amounts were imposed on persons pursuing the occupations in which petitioners (appellants) were engaged, and that, under said ordinance and charter, the Recorder of the city of Galveston was authorized to issue writs of arrest, and to fine and imprison all persons who failed or refused to pay said taxes. That writs of arrest had been issued by one John S. Rhea, as Recorder of the city, for the arrest and trial of petitioners before him as Recorder, under charges of not procuring from the city of Galveston licenses to pursue their respective occupations. Petitioners, alleging that they apprehended arrest and fine and imprisonment of themselves, prayed that the city of Galveston, its officers and agents, be enjoined from proceeding against them, and all others who might become parties plaintiff in this suit, either by way of arrest, trial before the Recorder, or the seizure and sale of their property, under pretense of authority under said charter or ordinance.

In response to the prayer of petitioners, Hon. James Masterson, Judge of the 19th Judicial District, ordered that the writs of injunction do issue as prayed for, upon the several complainants, respectively, executing their respective bonds, conditioned and payable as required by law, each bond to be in double the amount of the tax alleged to be claimed by de fendant--a municipal corporation--as due to said corporation under the ordinance annexed as an exhibit to complainant's bill.

On the 6th of November, 1871, a large number of persons, pursuing different occupations in the city of Galveston, taxed under the above-mentioned ordinance, gave each their bonds, in compliance with the fiat of the judge, and filed their petitions in this cause as plaintiffs therein, alleging the allegations in the original petition to be true, and that a large number of the petitioners therein were then under arrest, under writs of arrest issued by John S. Rhea, acting as Recorder of the city of Galveston, and joining in the prayer for relief, and submitting themselves to the judgment of the court. Under the original and supplementary petition, a writ of injunction, as prayed for, was issued from the District Court on the 7th November, 1871, and served on the Mayor of the city and other officers. On the 13th November, 1871, a similar petition was filed in this cause by a large number of other persons, their injunction bonds being filed at the same time, and under this petition a second writ of injunction was issued.

On the 9th December, 1871, a similar petition was filed by several other persons, but no writ of injunction was issued thereon.

On the 11th December, 1871, a similar petition was filed in the cause by one Henry Duebner, alleging that he was then illegally under arrest, and held for trial before the Recorder of the city, under a charge of selling spirituous liquors in quantities less than an ordinary wine bottle, without a license from the city of Galveston. His injunction bond being filed, a writ of injunction, similar to the writs before issued, was issued and served. The petitions, original and supplementary, were duly served on the Mayor and other officers of the city.

The petitioners were pursuing the following various occupations: Photographers, life insurance agents, merchants, bankers and dealers in exchange, commission merchants, hotel keepers, dealers in carriages, buggies, etc., ship agents, coal dealers, auctioneers, merchandise brokers, keepers of restaurants, insurance brokers, keepers of bar-rooms, barber shops, venders of wood from their own wood-yards in the city of Galveston, physicians, lawyers, dentists, theatres, steamboat agents, persons engaged in transporting merchandise, tailors, shoemakers, ticket agents for railroad companies, owners of trucks for transporting merchandise and baggage, owners of vehicles or buggies kept for private use, and drawn by one horse, keepers of retail grocery stores where liquors were sold in quantities of not less than an ordinary wine bottle, and other occupations.

Petitioners refusing to pay the taxes imposed under ordinance of July 5, 1871, writs were issued by John S. Rhea, as Recorder of the city, for their arrest and trial before the Recorder's Court of the city, under the charges above mentioned.

Judgment for defendant, and plaintiffs appealed.

Ben. C. Franklin & L. E. Trezevant, for appellants, filed an able and elaborate argument, the length of which prevents its insertion.

They contended that the court erred in sustaining the ordinance of the city of Galveston of July 5, 1871, entitled, “An ordinance to establish a uniform rate of license taxes on professions, callings, and other business occupations, and on carriages, hacks, drays, and other vehicles,” because the ordinance does not, as its title contemplates, impose a uniform rate of taxes, but imposes instead diverse and discriminating rates in violation of Sections 2, 16, and 21, Article 1, and Section 19, Article 12, of the Constitution of this State.

To use the language of Woodbridge v. Detroit, 8 Mich., 301,“To compel individuals to contribute money to the use of the public without reference to any common ratio, and without requiring the sum paid by one person to bear any relation whatever to that paid by another, is, it seems to me, to levy a forced contribution, not a tax, within the sense of that term, as applied to the exercise of power by any enlightened or responsible government.”

The Constitution of this State declares that--

“All freemen, when they form a social compact, have equal rights, and no man, or set of men, is entitled to exclusive, separate, public emoluments or privileges.”

“The equality of all persons before the law is herein recognized, and shall ever remain inviolate.”

“To guard against transgressions of the high powers herein delegated, we declare that everything in this Bill of Rights is excepted out of the general powers of government, and shall forever remain inviolate; and all laws contrary thereto, or to the following provisions, shall be void.”

Section 19, Article 12, declares that--

“Taxation shall be equal and uniform throughout the State. All property shall be taxed in proportion to its value, to be ascertained as directed by law.”

“The Legislature shall have power to levy an income tax, and to tax all persons pursuing any occupation, trade or profession, provided the term occupation shall not be construed to apply to pursuits either agricultural or mechanical.”

It will be observed that the great object sought to be secured by the people, when they framed this section of the Constitution, was equality and uniformity.

In providing for this great principle, the people, says Cooley, in his work on Constitutional Limitations, page 495, have done no more than to state in concise language a principle of constitutional law which, whether declared or not, would inhere in the power to tax.

It is clear, says Blackwell, on Tax Titles, page 7, that whenever the property of a citizen shall be taken from him by the sovereign will, and appropriated without his consent, for the benefit of the public, the exaction should not be considered as a tax, unless similar contributions be made by that public itself. This is in accordance with that well known maxim, that where the burden is common there should be common contribution to discharge it.

Every preson, says Kent, Vol. II., page 331, is entitled to be protected in the enjoyment of his property, not only from invasions of it by individuals, but from all unequal and undue assessments on the part of government. It is not sufficient that no tax be imposed on the citizens but by their consent. The citizens are entitled to require that the Legislature itself shall cause all public taxation to be fair and equal in proportion to the value of the property, so that no one class of individuals, and no one species of property, may be unequally or unduly assessed.

Jean Baptiste Say, the great French politico-economist, says, “That system of taxation is...