Asher v. State of Texas

• Decision Date: 29 October 1888
• Parties: ASHER v. STATE OF TEXAS. 1
• Court: U.S. Supreme Court

128 U.S. 129

9 S.Ct. 1

32 L.Ed. 368

ASHER v. STATE OF TEXAS.¹

October 29, 1888.

Abel Crook, for plaintiff in error.

Jas. H. Hogg, Atty. Gen. of Texas, for defendant in error.

BRADLEY, J.

This is a writ of error to the court of appeals of the state of Texas in a case of habeas corpus. By an act of the legislature of Texas passed May 4, 1882, it was provided that there shall be levied on and collected 'from every commercial traveler, drummer, salesman, or solicitor of trade, by sample or otherwise, an annual occupation tax of thirty-five dollars payable in advance; * * * to be paid to the comptroller of public accounts, whose receipts under seal shall be evidence of the payment of such tax;' and it was provided that every such commercial traveler, drummer, etc., 'shall, on demand of the tax collector of any county of the state, or any peace-officer of said county, exhibit to such officer the comptroller's receipt;' and on refusal 'shall be deemed guilty of misdemeanor, and fined in a sum not less than twenty-five nor more than one hundred dollars.' And by article 110, c. 5, tit. 4, Pen. Code Tex., it is provided that 'any person who shall pursue or follow any occupation, calling, or profession, or do any act taxed by law, without first obtaining a license therefor, shall be fined in any sum not less than the amount of the taxes so due, and not more than double that sum.' By a statement of facts agreed upon by the parties, in the court below, it appears that William G. Asher, the plaintiff in error, 'is a resident and citizen of the city of New Orleans, state of Louisiana; and on the 27th day of May, A. D. 1887, and for about the period of one month prior thereto, was engaged in the business of soliciting trade by the use of samples for the house for which he worked as drummer, in the city of Houston, Harris county, state of Texas, said house being Charles G. Schulze, of New Orleans, La., who was a manufacturer of rubber stamps and stencils, for the sale of which said Asher was then and there soliciting orders or trade. While engaged in the act of drumming for said Charles G. Schulze, and for the claimed offense of not having taken out the required license for so doing said business, the defendant, William G. Asher, was arrested by one George Ellis, sheriff of said county of Harris, state of Texas, and carried before the Honorable JAMES A. BREEDING, a justice of the peace of precinct No. 1 of said county of Harris, state of Texas, and fined for the offense of pursuing the occupation of drummer without a license. It is admitted that Charles G. Schulze is engaged in manufacturing in New Orleans, state of Louisiana, and in selling, rubber stamps and stencils, and that it was a line of such articles for the sale of which the said defendant, William G. Asher, was drumming at the time of his arrest; that the relator, Asher, was...