Aulanier v. Governor

• Decision Date: 31 December 1846
• Citation: 1 Tex. 653
• Parties: AULANIER v. THE GOVERNOR.
• Court: Texas Supreme Court

1 Tex. 653

AULANIER

v.THE GOVERNOR.

Supreme Court of Texas.

December Term, 1846.

Appeal from Galveston County.

The tax imposed upon retailers of spirituous liquors by the 4th section of the act of April 26, 1846, “To raise a revenue,” etc., is a license tax, and its collection as such is provided for by the 29th and 30th sections of the act of the 13th May, 1846, “To provide for the assessment and collection of taxes.” Both acts are constitutional.

A person acting as an officer, under color of a commission, is de facto such officer, until ejected by a proceeding having that object directly in view; and his authority cannot be questioned in a collateral way. His official acts, until ejected, are valid.

It is a well settled rule that where a good cause of action is shown, and the exception is only to the person of the plaintiff, it can only be sustained by a plea showing who is the person really entitled to be plaintiff. [12 Tex. 112;25 Id. 473.]

When a cause is taken by appeal to the district court, if the court a quo had not jurisdiction, the appellate court could have none. [2 Tex. 196;3 Id. 158;9 Id. 313;10 Id. 216;23 Id. 104.]

The district courts have original jurisdiction for the recovery of sums due for license tax, whatever may be the amount in controversy. A jnstice of the peace has no such jurisdiction. [3 Tex. 158;9 Id. 544;28 Id. 230.]

The suit should be brought in the name of the state. Quære, Can it be brought in the name of the governor.

The suit in this case was for the recovery of a license tax. The facts are stated in the opinion of the court.

Alexander, for appellant, contended:

1st. That the legal right to taxes or penalties for failure to pay is vested in the corporation aggregate known as the state of Texas, and not in the corporation sole designated as the governor of the state of Texas.

2d. The warrant does not specify any taxes or the penalties for a failure to pay, and hence is insufficient. 3d. The statement of facts shows that the appellant kept the “Eagle Hotel,” and that being an inn-keeper he could not be held liable for keeping a boarding-house.

4th. If the appellee relies upon the acts above cited that they are unconstitutional, i. e., repealed by new constitution.

5th. If he relies upon the late acts of the state of Texas, it is held that sections 29 and 30 of the “act to provide for the assessment and collection of taxes” have no reference to the “act to raise a revenue by direct taxation.”

6th. That each of these acts is unconstitutional.

7th. There was no assessor and collector to whom the state taxes might be paid.

First. He only may be plaintiff in whom the legal right is vested. 1 Chit. Pl. p. 1. The state of Texas (the constitution of which limits and defines the powers and rights of its various departments) has never been divested of its legal right to taxes, nor has the governor been vested with the power to sue for, or under any circumstances to collect them. In the constitutional distribution of official duties the assessment and collection of taxes has been assigned to another officer. Const. Gen. Prov. sec. 29. This amounts to a negation of the right to collect taxes on the part of all other state officers.

Second. Upon reference to the warrant it will be seen that suit is not brought for a license tax or taxes, nor for the penalty of a failure to pay the same for an alleged period of time, but for one hundred dollars “damages.” The judgment of the district court is not in conformity to the warrant -- it is for “damages.”

Third. The license tax for innkeepers would necessarily include that for keeping a boarding-house. The defendant is proved to have kept the “Eagle Hotel;” but it must be observed that there neither was, nor is, any license tax for keeping a boarding-house.

Fourth. The state of Texas is a government of limited powers. The constitution authorizes the legislature to impose taxes, but not licenses. The laws of the republic above referred to conflict in that particular with existing constitutional restriction. As some of the objections to the constitutionality of the laws of the republic are identical with those to be urged against the late acts of the state, they are omitted under this head.

Fifth. Sections 29 and 30 of the late act of May 13, 1846 (p. 357), cannot be construed to refer to the “act to raise a revenue by direct taxation” of the same year, p. 146. That law did not have effect at that time; nor, indeed, was it intended to be in force until the 1st of August ensuing, and it does not contain the word license in either its body or title; while the law of February 5, 1842 (if any such law could be -- if unrepealed by the constitution of the state) was then in force. It opposes licenses eo nomine, and is clearly the law to which those sections have reference.

Sixth. If, however, the act to raise a revenue by direct taxation of 1846 (p. 147) is the law referred to, it conflicts with the 27th section of the general provisions of the constitution. This section requires that taxation shall be equal and uniform throughout the state, and that all property shall be taxed in proportion to its value.

Upon examination it will appear that the saving clause with which it concludes, in favor of agricultural and mechanical pursuits, is repugnant to the body of the section, and therefore void. 1 Bl. Com. p. 77.

It is not a “proviso,” for it imports no condition. See Bouv. Law Dic. tit. Proviso, and the cases there cited. Upon reference to the statute it will be observed that it follows the exceptions of the saving clause and hence must share its fate. Besides, such “occupations” as are taxed are not taxed uniformly, nor at an equal rate. In addition, it seems that a man's occupation or pursuit is his property, and, as such, that it should be taxed in proportion to its value.

Say's Political Economy, book 1, ch. xiv. p. 134.

Taxes upon “occupations” are taxes upon industry (or as the politico-economists term it “labor”), and to comply with the constitution, should be uniform and equal, and in proportion to the value of the occupation, estimated from its yield, as well as of the other property of the tax payer.

A man who combines labor with capital for the purpose of keeping a house of public entertainment is an innkeeper. One who unites industry with capital in the prosecution of buying and selling goods is a merchant; while he who unites labor with capital for the cultivation of the soil is a farmer. Analysis teaches us that the ordinary pursuits or occupations of life differ only in the objects with regard to which human labor and capital are employed.

By this law the individuals engaged in all pursuits (i. e. polls) and their capital, whether in the form of hotels, stores, merchandise or real estate, are taxed in conformity to the constitution; while the labor with which that capital is combined, in the case of the innkeeper and the merchant, is taxed at a rate that is neither equal nor uniform, without any regard to its value or profit, and in the case of the farmer, is not taxed at all.

The same grounds may be maintained in regard to the act of February 5, 1842.

Again, the repealing clause of the act of the state under consideration is not expressed in its title. It is a law embracing more than one object; hence the repealing clause and the whole act is void. The repealing clause is a fortiori void, if in repealing “parts of laws” it amends the act of February 5, 1842, and perhaps others, without re-enacting and publishing the rest of them at length. Vide Const. Gen. Prov. secs. 24 and 25.

The act of May 13, 1846 (secs. 29 and 30, p. 357), also conflicts with all of the sections of the constitution heretofore referred to. It imposes the taking out of a license (which is not authorized by Const. Gen. Prov. sec. 27) and a penalty for a failure to pay a license tax, which are distinct objects, neither of which are expressed in the title; and it amends some former law without re-enacting or incorporating the act amended, or indeed designating it with precision.

Seventh. The court may judicially notice that the legislature has not directed how the assessors and collectors are to be appointed; but that they have directed that they shall be elected by a popular vote. Const. Gen. Prov. sec. 29; Acts of 1846, p. 347.

The constitution recognizes a distinction between an appointment and an election. Gen. Prov. sec. 3. In common parlance these words are not synonymous. If the constitutional provision concerning assessors and collectors is taken in its plain, obvious and legitimate import, the people have no more right to elect assessors and collectors than the governor has to appoint representatives in the legislature for the various counties of the state, or to collect the revenue. Wherefore the appellant asks that the judgment of the court be reversed, etc.

Duval, representing the Attorney General, for appellee.

The only point raised by the bill of exceptions is grounded upon the refusal of the court below to admit proof that Sundberg was not duly qualified according to law, as assessor and collector. We contend that such a refusal was proper. For, inasmuch as Sundberg produced his certificate of election, as well as his commission, and also proved that he had acted as such assessor ever since the 1st day of August previous, his authority could not be questioned, but was conclusive.

It is held in England in the case of revenue officers, where the question is whether they are such officers, proof of being reputed to be so, or having exercised the office, is good evidence of the fact. Phil. Ev. p. 170.

And it has been decided in the United States that an officer of the customs, duly commissioned and acting in the duties of his office, is presumed to have taken the regular oath. United States v. Bachelder, 2 Gallis. p. 15.

As regards the agreement shown by the record to have been made by the counsel of the parties in the court below, we say...