Calvert v. McLemore
| Decision Date | 27 June 1962 |
| Docket Number | No. A-8883,A-8883 |
| Citation | 358 S.W.2d 551,163 Tex. 562 |
| Parties | Robert S. CALVERT et al., Appellants, v. Edward E. McLEMORE, Jr., dba 'Big 'D' Jamboree', Appellee. |
| Court | Texas Supreme Court |
Will Wilson, Atty. Gen., Austin, J. H. Broadhurst, Asst. Atty. Gen., for appellant.
Jackson C. Burroughs, Dallas, for appellee.
This is a direct appeal under the provisions of Article 1738a, Vernon's Ann.Tex.Civ.Stat. The trial court denied a temporary injunction on the ground that Section 1 of Article 21.02, V.A.T.S. Tax.-Gen., is unconstitutional. This statute purports to levy a tax of one cent on each ten cents or fractional part thereof paid as admission to entertainments such as motion pictures, operas, plays and like amusements 'held at places other than at a fixed and regularly established motion picture theater', where the admission charged is in excess of fifty-one cents per person. Section 2 of Article 21.02 deals with admissions to such entertainments when held at a fixed or regularly established motion picture theater, and no tax is imposed thereon unless the amount charged is in excess of $1.05. In either situation the tax is payable by the person who owns or operates the place of amusement. Article 21.01, V.A.T.S. Tax.-Gen.
(1, 2) The tax in question is not a tax upon property or upon persons but is imposed on the business of exhibiting motion pictures, operas, plays and other like amusements. It is an occupation tax within the meaning of Article VIII, Section 2, of our Constitution, Vernon's Ann.St., which provides that all occupation taxes shall be equal and uniform upon the same class of subjects within the limits of the authority levying the tax. See Pullman Palace-Car Co. v. State, 64 Tex. 274, 53 Am.Rep. 758; H. Rouw Co. v. Texas Citrus Commission, 151 Tex. 182, 247 S.W.2d 231. There can be no doubt as to the power of the Legislature to classify the subjects of occupation taxes and impose varying burdens upon the different groups. It is essential, however, that there be a reasonable basis for the classification. Exemption of persons who are engaged in the same occupation as those who are taxed renders the levy discriminatory and therefore unconstitutional.
Texas Co. v. Stephens, 100 Tex. 628, 103 S.W. 481.
The classification established by the Legislature in this instance is based on the place where the entertainment is given. In Davis v. White, Tex.Civ.App., 260 S.W. 138 (wr. ref.), a statute purporting in general terms to levy an occupation tax on...
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