Caswell & Smith v. State

• Decision Date: 15 May 1912
• Citation: 148 S.W. 1159
• Court: Texas Court of Appeals
• Parties: CASWELL & SMITH v. STATE.<SMALL><SUP>†</SUP></SMALL>

148 S.W. 1159

CASWELL & SMITH v. STATE.^†

Court of Civil Appeals of Texas. Austin.

May 15, 1912.

Rehearing Denied May 29, 1912.

Appeal from District Court, Travis County.

Action by the State against Caswell & Smith. From a judgment for plaintiff, defendants appeal. Affirmed.

J. L. Peeler, of Austin, for appellants. Jewel P. Lightfoot, Atty. Gen., and John W. Brady and C. E. Mead, Asst. Attys. Gen., for the State.

RICE, J.

By section 12, c. 18, of the Acts of the First-Called Session of the Thirtieth Legislature, p. 479, all dealers in pistols and other firearms were required to make report, under oath, to the Comptroller on or before the 1st of July, 1907, and quarterly thereafter, showing the gross amount, collected and uncollected, from sales of such firearms during the preceding quarter, and at the same time to pay to the State Treasurer an occupation tax of 50 per cent. of the gross receipts of all such sales, as shown by said report; and section 19 of said act prescribed a penalty of 10 per cent. in the event of failure, after 30 days, to pay the same. This law has been since so amended as to apply to sales of pistols alone. See New Revised Statutes, adopted by the Thirty-Second Legislature, art. 7380, c. 2, tit. 126. Appellants made the report in accordance therewith, but refused to pay 50 per cent. of said gross receipts from such sales, and this suit was brought by the state to recover said amount, as well as the penalty denounced for such failure. Appellants sought to defeat said recovery on the ground that such tax and penalty were prohibitory and confiscatory of their business, which they claimed to be a useful and harmless occupation, and for which reason it was claimed that said tax was illegal and unconstitutional. It was also contended that the act in question was unconstitutional and void, because it denied to appellants the privilege of selling, and the people the right of purchasing, keeping, and bearing, arms, within the spirit and meaning of section 23 of the Bill of Rights of this state and the second amendment to the federal Constitution.

The case was submitted to the court upon an agreed statement of facts, who rendered judgment for the state, from which appellants have appealed; it appearing therefrom that under the operation of said law dealers in pistols and firearms in this state were unable to pay the tax and sell said articles in competition with outside dealers, and that the peace officers of this state, numbering some 5,000, had since said time been purchasing their pistols without the state.

If the sale of pistols can be classed as a harmless pursuit or occupation, such, for instance, as the sale of ordinary merchandise, then the fact that the Legislature has undertaken by its taxing power to impose a tax upon dealers therein, so great in amount as to be prohibitory of their business, then there is much force in appellants' contention. But is this true? While the sale of a pistol, within itself, cannot be said to be harmful or deleterious to the welfare, good order, or security of society, any more than the sale of any other article of merchandise, still the ulterior use that frequently is made of such weapon may be taken into consideration in determining whether or not the act of selling it should be so taxed as to diminish, if not possibly to prohibit, the same. It is a matter of common knowledge that the indiscriminate carrying and use of pistols leads often to gross violations of law, such as affrays, broils, and murders, for which reason the state is justified in keeping a constant vigil, not only upon their sale and other methods of procurement, but their use as well; and for many years the law of this state has prohibited, with certain exceptions, the carrying of pistols, imposing heavy penalties against its infraction; and other states have similar laws. This being true, is not the government, which is instituted for the preservation of the peace and welfare of society, as well as for guarding each individual from unlawful encroachment upon his rights of person or property, justified, not only in regulating, but also in absolutely prohibiting, any business, the pursuit of which may become the fruitful source of such disorders and disturbances as materially interfere with public safety? We think so. If this be true, then any law which tends to conserve the peace and safety of the citizen and safeguard his welfare should be upheld. We might cite numerous cases illustrating the rule above announced, only a few of which, however, are necessary for our purpose.

In Thompson v. State, 17 Tex. App. 257, defendant was convicted of unlawfully pursuing the occupation of selling the Police News and Gazette, without paying the tax ($500 in each county where the sale was made or offered to be made) prescribed by law. This law was assailed as unconstitutional, on the ground, among others, first, that the tax levied by it was not equal and uniform upon the same class of subjects; and, second, it was oppressive, vague, and uncertain and beyond the power of the Legislature. Mr. Justice Willson held against each of these positions, saying with reference to the second that the taxing power must be left to that part of the government which is to exercise it (that is, the Legislature); and it is only where statutes are passed which impose taxes on false and unjust principles, or operate to produce gross inequality, so that they cannot be deemed in any sense proportional in their effect of those who are to bear the public charges, that courts can interpose and arrest the course of legislation by declaring such enactments void. Quoting from Mr. Cooley, he said: "The power to impose taxes is one so unlimited in force, and so searching in extent, that the courts scarcely venture to declare that it is subject to any restrictions whatever, such as rest in the discretion of the authority which exercised it. It reaches to every trade or occupation, to every object of industry, use, or enjoyment, to every species of possession—" holding, therefore, that it was not for that court to say whether this tax is oppressive; "that was a question for the Legislature to pass upon, and the judiciary has no right to inquire into it. It is to be conclusively presumed that the Legislature had good and sufficient reasons for imposing this tax upon persons selling or offering to sell the publications named, and all other publications of the same character." Remarking that it was a matter of notoriety that when this law was enacted an illustrated publication, known as the Police News, and another known as the Police Gazette, were offered for sale and were sold in all the cities of the state and upon the passenger trains of all the railroads in the state; and, further, that these publications were of an indecent, immoral, and pernicious character, and that many of the citizens of the state demanded some legislation that would prevent, restrict, or regulate the sale of this class of publications, and that the facts were of such notoriety that the courts would...