A B C Storage & Moving Co. v. City of Houston

• Decision Date: 10 February 1925
• Docket Number: (No. 8732.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 269 S.W. 882
• Parties: A B C STORAGE & MOVING CO. et al. v. CITY OF HOUSTON et al.
• Court: Texas Court of Appeals

269 S.W. 882

A B C STORAGE & MOVING CO. et al. v. CITY OF HOUSTON et al.

(No. 8732.)^*

Court of Civil Appeals of Texas. Galveston.

February 10, 1925.

Rehearing Denied February 26, 1925.

Appeal from District Court, Harris County; W. E. Monteith, Judge.

Action by the A B C Storage & Moving Company and others against the City of Houston and others. From judgment dissolving temporary injunction and refusing application for permanent injunction, plaintiffs appeal. Affirmed in part, and reversed and rendered in part.

Henry & Clark, of Houston, for appellants.

Sewall Myer and W. Ray Scruggs, both of Houston, for appellees.

LANE, J.

This action is brought by the A B C Storage & Moving Company and others against the city of Houston and certain executive officers of said city to restrain said city and its officers from enforcing a certain city ordinance, which ordinance provides, among other things, as follows:

"The owner of every carriage or vehicle carrying freight or merchandise for hire in the city of Houston shall pay to the city assessor and collector of the city of Houston annually license fees as follows:

"For one-horse drays or wagons, three dollars ($3.00).

"For two-horse wagons and other horsedrawn vehicles, five dollars ($5.00).

"For one-ton automobile trucks or less capacity, fifteen dollars ($15.00).

"For other trucks, twenty-five dollars ($25.00).

"All license dues above provided for shall run from the 1st day of January to the 31st day of December of each year."

The plaintiffs, among other things, allege that they are now, and have been for some time past, engaged in the business of carrying freight and merchandise for hire within the purlieus of the city of Houston and the immediate vicinity thereof; and that in the conduct and prosecution of such business those petitioners own and operate a large number of wagons and trucks; that the wagons, so owned and operated, are drawn by two and sometimes three horses; and that the numerous trucks owned and operated are of varying capacities, some less than one ton, whereas others are in excess thereof. They further allege that said officials of the city are demanding of them payment of the fees provided by said ordinance and are threatening to prosecute them in the event of their failure to make such payments; that if such payments are not paid each and all of them will become subject to arrest and prosecution under the provisions of the ordinances of the city of Houston.

The grounds for their contentions for an injunction, as stated in the petition, are: (1) That the taxes sought to be assessed and collected are occupation taxes, and therefore the ordinances of the city providing for their assessment and collection are in violation of article 8, § 1, of the Constitution of the State of Texas, which provides that occupation taxes, levied by any city or town for any year on persons or corporations pursuing any profession or business, shall not exceed one-half of the tax levied by the state for the same period on such profession or business, since no occupation tax is levied by the state on the businesses pursued by them. (2) That if such taxes are not occupation taxes, but are, in effect, merely a license fee thereon, then, in that event, the levy of them by the city is without authority of law and in violation of article 3, § 7, of the Charter of said city, which provides that the city council shall have power to assess, license and tax public drays, wagons, omnibusses, carriages, and automobiles and such other trades and occupations not specifically mentioned as are, or may be, taxed or licensed by the laws of the state, but no assessment or license tax levied under such section shall exceed one-half of the amount levied by the state for the same period on such trade, profession, or occupation, and the same may be regulated, levied, and collected in the same manner as such taxes are regulated and collected by the state of Texas. (3) That said taxes or license fees provided for by said city ordinances are invalid and unenforceable, in that the same are imposed unequally and unjustly, in that they are not the same upon all persons engaged in the same or similar business.

A temporary injunction was issued upon the petition of the plaintiffs, but upon a hearing on the motion of the defendants, the trial court dissolved said temporary injunction and refused the application of the plaintiffs. The plaintiffs appealed.

The contentions presented by appellants for reversal of the judgment, reduced to the ultimate, are: (1) That the taxes or fees sought to be collected from them are occupation taxes levied against the business in which they are engaged; that the state of Texas does not levy an occupation tax against such business, therefore the ordinance or ordinances of the city of Houston demanding of them payment of an occupation tax on such business violate section 1 of article 8 of the State Constitution, and are void. (2) That if the taxes or fees sought to be collected are not occupation taxes, but are, in effect, merely license fees, still the city is without authority to levy and collect the same, in that it is forbidden so to do by section 7 of article 3 of its charter. (3) That such taxes or license fees provided for by the city ordinances are invalid and unenforceable, because the same are imposed unequally and unjustly, in that they are not the same upon all persons engaged in the same or similar business. (4) That said ordinances demanding the collection of either an occupation tax or license fee, upon their business, are invalid and unenforceable, in that it is provided by section 25 of chapter 190, Acts 35th Legislature of 1917, now article 7012½h, Vernon's Civ. Statutes 1918, that the certificate of registration and the fees provided by the preceding sections of said chapter shall be in lieu of all other similar registrations theretofore required by any county, municipality, or other political subdivision of the state. That it provides further that said act shall not affect the right of incorporated cities and town to license and regulate the use of motor vehicles for hire in such incorporations, but that nothing in such act should in any manner authorize or empower any county, city, or town to levy and collect any occupation tax or license fees on automobiles and motor trucks such as are used by appellants.

We will dispose of the several contentions in the order named.

If the sums demanded by the city from appellants as license fees are in fact occupation taxes, we must, in view of the decisions of our courts holding that since the state imposes no occupation tax on that class of business followed by appellants, the city is without authority to impose such tax on such business, hold that an attempt on the part of the city so to do is in violation of article 8, § 1, of the Constitution of Texas. Article 8, § 1, Constitution of Texas; Hoefling v. City of San Antonio, 85 Tex. 228, 20 S. W. 85, 16 L. R. A. 608; City of Laredo v. Loury (Tex. App.) 20 S. W. 89; Ex parte Terrell, 40 Tex. Cr. R. 28, 48 S. W. 504.

The Supreme Court, in discussing and disposing of the question now being discussed, in the case of Hoefling v. City of San Antonio, said:

"This proposition is based on the last paragraph of section 1, art. 8, of the Constitution, which provides that `the occupation tax levied by any county, city, or town for any year on persons or corporations pursuing any profession or business, shall not exceed one-half of the tax levied by the state for the same period on such profession or business.' The charter of the city, created prior to the adoption of the Constitution now in force, is broad enough to sustain such a tax; but, if in conflict with the Constitution, must be held to be in so far repealed, or to stand in subordination to the requirements of that instrument. The purpose of so much of the Constitution as is quoted was evidently to place a limitation on the power of municipal corporations to levy and collect occupation taxes; to deny to them the unrestricted power to tax any occupation. Under the Constitution, the sum a municipal corporation may collect as a tax on a given occupation cannot `exceed one-half of the tax levied by the state for the same period on such profession or business,' and this necessarily involves the proposition that the Legislature must determine that the occupation shall be taxed for the benefit of the state before a municipal corporation can tax it at all. When the Legislature has declared that a named occupation shall be taxed, and has fixed the amount of the tax, then, and not before, has a county, city, or town...