Brand v. State

• Decision Date: 20 April 1927
• Docket Number: (No. 10669.)
• Parties: BRAND v. STATE.
• Court: Texas Court of Criminal Appeals

3 S.W.2d 439

BRAND v. STATE.

(No. 10669.)

Court of Criminal Appeals of Texas.

April 20, 1927.

Rehearing Denied March 7, 1928.

Appeal from Grayson County Court; R. M. Carter, Judge.

G. L. Brand was convicted of pursuing the occupation of a loan broker without having first paid the occupation tax, and he appeals. Affirmed.

C. F. Greenwood, of Dallas, for appellant.

Sam D. Stinson, State's Atty., and Robt. M. Lyles, Asst. State's Atty., both of Austin, for the State.

LATTIMORE, J.

Conviction for pursuing the occupation of a loan broker without having first paid the occupation tax; punishment, a fine of $225.

Appellant raises the question of the unconstitutionality of the law under which the prosecution was had, and the sufficiency of the facts. Article 121, P. C., penalizes him who follows any occupation, calling, or profession taxed by law, without having first obtained a license therefor, and fixes the punishment at not less than the amount of the tax due nor more than double such amount. Subdivision 14 of article 7047, Revised Civil Statutes, fixes the annual occupation tax for pursuing the business of loan broker at $150. Subdivision 15, Id., fixes the occupation tax of a money lender at the same amount. Counties are given the right by statute to fix the rate of county tax.

The definition of a loan broker, among others, is one who pursues the business of lending money upon interest, taking as security for the payment of same an assignment of wages. The facts in the instant case show that appellant pursued the business of lending money, taking notes from his customers, and, if the borrower was employed for a salary or wages, the accused and the borrower would have an understanding with the employer that he would retain out of such salary or wages an amount sufficient to protect the loan. We think these facts bring appellant within the definition of a loan broker, and that the agreement and understanding referred to was in law an assignment of such salary or wages. Whether the agreement or understanding be oral or written would not seem to affect its character. Atkinson v. Jackson Bros. (Tex. Civ. App.) 259 S. W. 280; Neely v. Dublin Fruit Co. (Tex. Civ. App.) 199 S. W. 827; Thornburg v. Moon (Tex. Civ. App.) 180 S. W. 959; Hill v. Frost, 59 Tex. 25; Thomas v. Hammond, 47 Tex. 42. In either event, the amount of the wages, equal to the principal and interest of the loan, by the terms of such agreement was removed from the control of the employee and made subject to the repayment of the loan.

We perceive no reason why the Legislature might not fix an occupation tax on all money lenders, nor why they might not set those who lend money, under the circumstances and conditions appearing in this record, in the class described and designated in article 1127, P. C., as loan brokers. The principle involved seems announced in Juhan v. State, 86 Tex. Cr. R. 63, 216 S. W. 873, which was reversed for other reasons. We are unable to agree with appellant's contention that the law is unconstitutional, nor that the facts do not support the judgment.

The judgment will be affirmed.

On Motion for Rehearing.

HAWKINS, J.

Appellant suggests that an act of the First Called Session of the Fortieth Legislature (chapter 17, p. 30), having expressly repealed articles 1127, 1128, and 1129 of the P. C., calls into operation article 14 of the P. C., which reads as follows:

"The repeal of a law where the repealing statute substitutes no other penalty will exempt from punishment all persons who may have violated such repealed law, unless it be otherwise declared in the repealing statute."

We are not in accord with appellant's view of the matter. Article 6162, R. C. S. (1925), is a definition of a loan broker. Carried forward into the Revised Penal Code of 1925 as article 1127 is identically the same definition. Article 1129 of the P. C. provided for the punishment of a "loan broker" who engages in business without complying with the law relative to such business and affixed a penalty. Appellant was not prosecuted under article 1129. Subdivision 14 of article 7047, R. C. S. fixed an annual occupation tax upon "loan brokers." Appellant was prosecuted for failing to pay said occupation tax. The Special Session of the Fortieth Legislature amended article 6162 of the R. C. S. by making a slight change in the definition of a "loan broker." One who engaged in such business as appellant was following would be a "loan broker" under the amended act the same as under the old, and, while article 1127 of the Penal Code was expressly repealed, the amendment of said article 6162 had the effect only of changing the definition of a "loan broker," and we think brings into operation article 16 of the Penal Code rather than article 14 which is invoked by appellant. Article 16 reads as follows:

"If an offense be defined by one law and by a subsequent law the definition of the offense is changed, no such change shall take effect as to the offenses already committed; but one accused of violating the first law shall be tried under that law."

The repealing statute substituted a new penalty for that which was included in article 1129 of the P. C., but, as heretofore stated, the present prosecution is not under that article.

In his motion for rehearing appellant renews his attack upon the "loan broker" law, assailing it as unconstitutional upon various grounds. The law as enacted at the Regular Session of the Thirty-Fourth Legislature (chapter 28, p. 48) was much emasculated by the opinion in Juhan v. State, 86 Tex. Cr. R. 63, 216 S. W. 873. In the R. C. S. of 1925 there were brought forward and re-enacted as articles 6162, 6163 and 6164, and in the revised Penal Code of 1925 as articles 1127 and 1129, such parts of the law as...