Amato v. Dreyfus

• Decision Date: 19 February 1896
• Citation: 34 S.W. 450
• Parties: AMATO v. DREYFUS.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

34 S.W. 450

AMATO v. DREYFUS.¹

Court of Civil Appeals of Texas.

February 19, 1896.

Appeal from Dallas county court; T. F. Nash, Judge.

Action by G. Dreyfus against P. Amato. Judgment for plaintiff. Defendant appeals. Affirmed.

Thompson & Thompson, for appellant. Chas. A. Rasbury, for appellee.

JAMES, C. J.

Suit by appellee for commission in reference to a sale of real estate. It appears that appellee was a merchant, and not a real-estate agent, and paid no tax for pursuing the latter occupation; the service claimed to have been rendered in this instance being a casual undertaking.

The first assignment is that a person pursuing the occupation of a land agent, under Sayles' Civ. St. arts. 4665, 4668c, who has not paid the occupation tax, and does not hold the receipt prescribed by the latter article, cannot recover for services performed while he is thus in default. Assuming that appellee was, as to the service alleged, one pursuing the occupation of land agent, within the meaning of the former article the question is solved by determining whether the prohibition contained in the latter article is directed against the person or the business. It is plain to us that the primary object of the statute is to provide revenue, and that it was not its purpose to repress or prohibit the several occupations it undertakes to license. The provision is that no person shall pursue any occupation unless he has such a receipt, which means that the person is prohibited, not the occupation. No consideration of public policy, nor one looking to the regulation of the business, enters into the statute in question. The purpose sought to be subserved is altogether different. It could with as much propriety be asserted that a merchant carrying on business under the same circumstances would not be allowed to enforce payment for goods sold, nor a banker for money loaned. If the legislature intended that the act should be so far reaching in its operation, it would certainly have made such intention clear. The view is amply sustained by authority. Harris v. Runnels, 12 How. 79; Larned v. Andrews, 106 Mass. 435. See, also, cases cited in Kenedy v. Schultz, 6 Tex. Civ. App. 461, 25 S. W. 667, in which it was held by this court that, under our statute relative to physicians, one who had not qualified under its provisions could not recover for services. The reasons distinguishing that case from the present one are clearly indicated in the cases cited in that opinion.

The...