City of Laredo v. Loury

• Decision Date: 22 June 1892
• Citation: 20 S.W. 89
• Parties: CITY OF LAREDO v. LOURY.
• Court: Texas Court of Appeals

20 S.W. 89

CITY OF LAREDO v. LOURY.

Court of Appeals of Texas.

June 22, 1892.

Appeal from Webb county court.

Action by Charles T. Loury against the city of Laredo to recover the amount of taxes paid under an ordinance alleged to be illegal. Judgment for plaintiff and defendant appeals. Reversed in part.

Atlee & Ernest, for appellant. Nicholson & Dodd, for appellee.

SIMKINS, J.

Appellee was a butcher, and rented a stall in appellant's market at $15 per month. All butchers and vendors of meat and vegetables were required under an ordinance of the city to rent stalls and to sell only at the market. Appellant also had a market master, whose duty it was to inspect all meats and vegetables offered for sale, and under the ordinance of the city every person pursuing the occupation of a butcher was required to pay $1 per head for every beef, 10 cents for every goat or mutton, 50 cents for every calf, and 25 cents for every hog; and disobedience of the market master's order was punished by fine of from $10 to $100. The proceeds from these inspection fees were $350 per month. The salary of the market master was $40 per month. Appellee paid the inspection fee under constant protest, and on January 26, 1891, sued the city to recover the taxes so paid, and praying for injunction against the further collection of the inspection fees. The city filed its obligation to refund the inspection fees should the injunction be perpetuated, and the court thereupon dissolved the injunction, but on final hearing gave judgment for $550, the amount of inspection fees paid by appellant from the time of protest, and perpetuated the injunction, and the city appeals.

There are two questions to be considered:

First. Can a city levy a tax on an occupation for revenue, where not authorized by the statute or city charter? It cannot be questioned that the inspection tax levied under the city ordinance was for revenue purposes. The taxes were paid directly into the city treasury, and passed into the general fund; were paid out in general appropriations, and did not specially go to the inspecting officer in payment for his fees for inspecting. On the contrary, the officer only received $40 per month paid by the city, while the city received from such source $350 per month. Again, the ordinance declares it a tax on the occupation, as follows: "There shall be paid by every person pursuing the occupation of butcher an inspection fee of one dollar per head for every beef slaughtered, etc." Section 4, c. 2, of City Ordinances. The occupation of butcher is not subject to taxation in Texas, and it is not pretended or shown that under any charter powers specially granted to the city of Laredo she can tax any occupation not declared taxable by law. Could such powers be granted under the constitution? The question then recurs, can the tax be sustained? We think not. Our supreme court, in the case of Hoefling v. City of San Antonio, 20 S. W. Rep. 85, (just decided,) has passed upon the very question, and holds that under the last paragraph of section 1, art. 8, of the constitution, to wit: "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...