Adams Fish Market v. Sterett

• Decision Date: 03 February 1915
• Docket Number: (No. 2619.)
• Citation: 172 S.W. 1109
• Parties: ADAMS FISH MARKET v. STERETT, Game, Fish, and Oyster Com'r.
• Court: Texas Supreme Court

Page 1109

172 S.W. 1109

ADAMS FISH MARKET v. STERETT, Game, Fish, and Oyster Com'r.

(No. 2619.)

Supreme Court of Texas.

February 3, 1915.

Mandamus by Mrs. C. P. Adams, doing business under the name of the Adams Fish Market, against W. G. Sterett, Game, Fish, and Oyster Commissioner. Mandamus refused.

Barry Miller and Smith, Robertson & Robertson, all of Dallas, for plaintiff. B. F. Looney, Atty. Gen., and G. B. Smedley, Asst. Atty. Gen., for defendant.

PHILLIPS, J.

The mandamus for which the relator prays will be refused, because it is apparent from her petition that she is not clearly entitled to it; but we shall briefly indicate our views, inasmuch as one of the questions involved properly calls for an interpretation of a statute governing the administration of an important department of the state government.

It is to be inferred from the petition and answer that during the months of September, October, and November, 1913, the relator had been engaged in the wholesale fish and oyster business in the city of Dallas, without the license required by article 3987, Rev. St. 1911, or the payment of the tax for such license prescribed by article 3989. On December 19, 1913, she made application to the respondent for a license — whether for one year beginning September 1, 1913, or for one year beginning December 19, 1913, does not appear — subscribing to and presenting the statutory affidavit. She accompanied her application with a due tender of $35.36, being an amount equivalent to the statutory tax upon the quantity of fish "purchased by her within the state of Texas from September 1, 1913, to November 30, 1913, inclusive," namely, $1 for each 1,000 pounds upon 35,364 pounds of fish; no oysters having been purchased, as she alleges. The answer of the respondent is that, during the period of time stated, the relator had "handled" in the conduct of her business within the state, 84,484 pounds of fish and 994 barrels of oysters, upon which she was due a tax, according to the statutory rate, of $94.42; and that, because of her failure to pay the proper amount of tax, he had refused to issue the license. There seems to be no controversy between the parties that the quantity of fish representing the difference between that which the respondent claims was "handled" by the relator, and that which she claims was "purchased" by her, during the period named, namely, 49,120 pounds, as well as the 994 barrels of oysters, was purchased by her without the state; and an agreed issue between them is whether the tax may be lawfully computed upon such purchases.

The statute (article 3989, as amended by Laws 1913, c. 146) fixes the tax for the license at "one dollar for each thousand pounds of fish, and one cent per barrel of oysters, handled by the dealer," payable monthly. The term "handled," as made use of in the statute, cannot, by mere construction, be given the restricted meaning for which the relator contends. Fish and oysters sold within the state, though originally purchased out of it, so as to constitute, in their purchase, articles of interstate commerce, would certainly be considered as commodities "handled" within the lawful intendment of the statute. The term very plainly has reference to the quantity of fish and oysters dealt in, or passing through the hands of the dealer, in the ordinary conduct of his business; and those sold within the state are as equally "handled" within the state as those purchased.

In our opinion the tax may not be lawfully computed upon "the quantity purchased without the state." It is, of course, true that articles of merchandise brought from another state, at rest within the state and enjoying the protection of its laws, are taxable, like other property there situated. American Steel & Wire Co. v. Speed, 192 U. S. 500, 24 Sup. Ct. 365, 48 L. Ed. 538. But a tax computed upon the quantity of merchandise purchased from dealers in another state to be transported within the state amounts, practically, to a tax upon the purchase — that which essentially gives the transaction its character as commerce — since, in such case, the amount of the purchase becomes the measure of the tax, and would therefore constitute a burden upon interstate commerce, which it is without the power of the state to impose. G., H. & S. A. Ry. Co. v. State of Texas, 210 U. S. 217, 28 Sup. Ct. 638, 52 L. Ed. 1031.

The proper measure of the tax according to the statute is, in our opinion, the quantity of fish and oysters purchased within the state, and, in addition the quantity sold within the state of any amount acquired from without it. In this way the quantity "handled" within the state may be fairly computed, and is made the subject of the tax laid by the statute.

It not being shown by the relator that she had not sold any of the fish and oysters purchased by her without the state, the amount of the tax, computed only upon the purchases within the state, was insufficient, and upon this ground alone the respondent would have been justified in refusing to issue the license.

She was not entitled to the license without the payment of the proper tax due for the period named. It is plain that she had pursued the business throughout this period. The statute very clearly contemplates the payment of the tax for each month the business is pursued. The relator does not contend to the contrary. The issue she makes is with respect to the proper amount of the tax. It would defeat the manifest purpose of the law, and contravene its terms, in our judgment, if a dealer, having pursued the business from September to December, should wait until, say, December 19th, to apply for the license, and then, while in clear default for the three preceding months, be held entitled to a license for the year following. By this method payment of the tax could be altogether avoided by refusing to apply for the license.

The mandamus is refused, but upon payment of the proper amount, as we have indicated, and making the deposit provided by article 3990, the license should be issued.

HAWKINS, J. (dissenting).

Relator, Mrs. C. P. Adams, a feme sole, doing business under the name of "Adams Fish Market," filed here a petition for a writ of mandamus to compel respondent, W. G. Sterett, game, fish, and oyster commissioner of the state of Texas, to issue to her a wholesale dealer's license to sell fish and oysters. Respondent answered.

From the pleadings it appears that during the period of time beginning with September 1, 1913, and ending with November 30, 1913, relator was engaged, and is yet engaged, in the business of a wholesale dealer in fish and oysters in the city of Dallas, Tex., without license. Between said dates she "handled," in the state of Texas, 84,484 pounds of fish and 994 barrels, or 1,998 gallons, of oysters; 35,364 pounds of said fish and no oysters having been purchased by relator within the state of Texas during said period, and all the residue of said fish and all of said oysters having been purchased by her outside of this state during said period. Some lack of certainty as to the source of supply of the oysters and of some of the fish is disclosed by the pleadings. Relator alleges, substantially, that all fish and oysters which she had purchased outside of this state were purchased "in other and different states of the United States of America." The affidavit which is embodied in respondent's answer is, substantially, to the effect that he demanded of relator, as a condition precedent to issuance of such license, payment of a tax under said statute, measured in amount by "the total amount of fish and oysters handled" by relator during said three months, and that she tendered "only the amount of taxes due on the fish and oysters purchased in the state of Texas" during said period. And it was argued at the bar, upon behalf of respondent, that some of the fish so purchased outside of the state of Texas might have been taken and sold to relator directly from the high seas.

Any issue between the parties as to a material fact would be fatal to our jurisdiction herein. However, under my view of this case, at least in its present attitude, it is wholly immaterial whether all or any of the oysters and fish purchased by relator outside of this state were purchased in a sister state, or in some foreign country, or were taken and sold to relator directly from the high seas.

On December 19, 1913, "Adams Fish Market, per H. Schwarz, Manager," made and duly presented to one of respondent's deputies a written application for a wholesale dealer's license to sell fish and oysters. Relator's petition alleges that:

"Said application for said license was then and there in strict compliance with the provisions of article 3988 of the Revised Civil Statutes of the State of Texas of 1911, and in strict compliance with all other provisions of law applicable thereto."

And respondent's answer admits that said application was in proper form and was presented to said deputy.

Along with said application for such license, relator, through said manager, tendered to said deputy the sum of $35.36, only, as the amount of taxes owing by said relator under said statute, upon the business handled by her during said three months, claiming that the amount of the prescribed tax should be calculated upon only the number of pounds of fish, and the number of barrels of oysters, if any, handled by her as such wholesale dealer, which had been purchased by her within the state of Texas, during said period of time. Respondent declined to accept the amount so tendered, and refused to issue such license, basing such declination and refusal upon the sole ground that the amount of taxes owing by relator, under said statute, for said three months, should be calculated upon the number of pounds of fish and the number of barrels of oysters handled by relator in the state of Texas during said period of time, including that which was purchased by her without, as well as...