Baldwin v. State

• Decision Date: 23 June 1886
• Citation: 3 S.W. 109
• Parties: BALDWIN <I>v.</I> STATE.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

3 S.W. 109

BALDWINv.

STATE.¹

Court of Appeals of Texas.

June 23, 1886.

Appeal from district court, Bexar county.

The opinion discloses the nature of the case. A fine of $750 was the penalty imposed.

W. W. Walling and Brenneman & Bergstrom, for the appellant, traversing the doctrines announced in the opinion.

Asst. Atty. Gen. Burts, for the State.

WILLSON, J.

It is charged in the indictment that the defendant pursued and followed the occupation and business of selling, and offering for sale, the Illustrated Police News and the Police Gazette, without first paying the tax upon such occupation, etc. Defendant excepted to the sufficiency of the indictment, because it did not allege that the papers sold or offered for sale were illustrated papers. This exception was properly overruled. The Illustrated Police News and the Police Gazette are papers which are specifically named in the statute, and it was not, therefore, necessary to further describe them in the indictment. If the prosecution had been for selling, or offering to sell, a publication not specifically named in the statute, but of like character with those so named, then it would have been essential to allege in the indictment the character of such publication, and that it was illustrated. Article 4665, Gen. Laws Seventeenth Leg. Sp. Sess. 18.

It is contended by counsel for defendant that the section of the article of May 4, 1882, which levies an occupation tax upon persons who engage in the sale of the Illustrated Police News and the Police Gazette, etc., (Gen. Laws Seventeenth Leg. Sp. Sess. 18, art. 4665,) is unconstitutional, because it was enacted at a special session of the legislature, without authority, in that the governor did not, in his proclamation convening said legislature, nor by any other means, designate or present to said legislature, as a subject for legislation, the tax in question; and that, therefore, the law levying the said tax is without authority, and was enacted in violation of section 40, art. 3, of the constitution, which reads as follows: "When the legislature shall be convened in special session, there shall be no legislation upon subjects other than those designated in the proclamation of the governor calling such session, or presented to them by the governor."

This court is asked to declare that the legislature, in enacting the law in question, acted without authority, in violation of the mandatory provision of the constitution above quoted. It is a question well worthy of serious consideration whether a court in this state can go behind a statute which is valid upon its face, and inquire into the particular authority by virtue of which it was enacted. Usener v. State, 8 Tex. App. 177; Central R. Co. v. Hearne, 32 Tex. 546; Blessing v. Galveston, 42 Tex. 641. We will not now determine this question, as it is not necessary to the final disposition of the case that we should do so.

We will concede, for argument sake only, that it is within the power of this court, and its duty...