Davis v. White

• Decision Date: 23 February 1924
• Docket Number: (No. 9224.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 260 S.W. 138
• Parties: DAVIS et al. v. WHITE, County Tax Collector, et al.
• Court: Texas Court of Appeals

Page 138

260 S.W. 138

DAVIS et al. v. WHITE, County Tax Collector, et al.

(No. 9224.)^*

Court of Civil Appeals of Texas. Dallas.

February 23, 1924.

Rehearing Denied March 22, 1924.

Appeal from District Court, Navarro County; Hawkins Scarborough, Judge.

Suit by Guy Bert Davis and others against Fred White, as Tax Collector of Navarro County, and another. Judgment for defendants, and plaintiffs appeal. Reversed and rendered.

J. S. Simkins and J. S. Callicutt, both of Corsicana, for appellants.

B. W. George, of Corsicana, and Strickland & Seagler, of San Antonio, for appellees.

LOONEY, J.

Appellants brought suit in the district court of Navarro county against Fred White, tax collector, and Ballard George, county attorney, of Navarro county, for the issuance of a perpetual injunction restraining the county officials named from collecting the occupation taxes imposed by an amendment to article 7355, Revised Civil Statutes of 1911, adopted by the Thirty-Eighth Legislature, and to prevent criminal prosecution. The suit is based on the contention that the act of the Legislature in question is unconstitutional for the following reasons: (1) That it is in conflict with both the state and federal Constitutions, in that its enforcement against appellants will result in taking their property without adequate compensation; and (2) that it violates section 2, article 8, of the Constitution of the state, in that the occupation taxes imposed by said act are not equal and uniform upon the same classes of subjects.

The county officials answered by denying the allegations of appellants, affirmed the validity of the statute in question, and admitted that they had, as officials, demanded of the appellants, and are now demanding, the payment of the occupation taxes imposed by the statute, and had threatened criminal prosecutions for failure to pay same.

The case was tried before the court without the intervention of a jury, and resulted in judgment for appellees, to which appellants excepted, gave notice of and have perfected their appeal.

It is necessary to notice but one of the several assignments of error urged by appellants.

By an appropriate assignment, appellants contend that the judgment below, based on the provisions of chapter 6, Acts of the Third Called Session of the Thirty-Eighth Legislature, is erroneous, for the reason that the occupation tax imposed by the act on theatrical, dramatic, musical comedy, and other similar shows sought to be collected from appellants by appellees violated the equality and uniformity provisions of section 2, art. 8, of the Constitution, and is therefore void.

Appellants owned and exhibited a show in Navarro county taxable under the statute in question if the same is a valid law, and in such view the judgment below should be affirmed; otherwise, the cause should be reversed and rendered for appellants.

In considering the constitutionality of a statute, it is but a decent respect due to the wisdom, integrity, and patriotism of a co-ordinate branch of the state government, by which the law is passed, to presume in favor of its validity until its violation of the Constitution is shown beyond a reasonable doubt. We have not considered the propositions that the law is unwise, unjust, or that it was probably enacted in response to the activities of private interests. The courts are not charged with the duty of correcting every abuse arising from the exercise by the Legislature of its conceded authority; to do so would be to obliterate all distinction existing between the different departments of the state government. If the act in question is unwise, unjust, or mischievous in its tendencies, relief must be obtained from the Legislature. Courts will not, for mere considerations of reason, wisdom, or questionable motives on the part of members of the Legislature, invade its realm and undo its work. This we understand to be a time-honored rule of conduct, or the attitude of mind, rather, in which a court considers the validity of a statute under an attack against its constitutionality.

When this much has been said, it may, with perfect propriety, be further said that the courts should never shirk the duty or fail to assume the responsibility of declaring an act of the Legislature unconstitutional and void when it appears so to be beyond a reasonable doubt. As said by Chancellor Kent (1 Com. 450):

"It is only by the free exercise of this power that courts of justice are enabled to repel assaults and to protect every part of the government and every member of the community from undue and destructive innovations upon their charter rights."

The act of the Legislature called in question was approved June 15, 1923, and is an amendment of section 13 of article 7355, Rev. St. 1911, and passed at the Third Called Session of the Thirty-Eighth Legislature. Section 1 of the act levies, for each day's performance, an occupation tax, graded according to the amount charged for admission, and according to the number of inhabitants in the cities and towns where the shows are given, on "every theatrical or dramatic representation and from every musical comedy show, and from all similar amusements, for which pay for admission is demanded or received, that travel from place to place and give exhibitions, shows, or performances."

Section 2 reads:

"Provided, however, that nothing in this act shall be construed to impose a tax upon traveling shows giving exhibitions for private profit in regular established theaters subject to an occupation tax under this act."

Section 3 reads:

"This act shall not be construed to mean that a regular established theater showing pictures, vaudeville or theatrical presentations, or either of same, shall pay more than one occupation tax."

Section 4 provides for the collection of an annual occupation tax, graded in amount according to the number of inhabitants of the village, town or city, from "the owner, proprietor or operator of every regularly established and recognized opera house, theater, air dome, and other established places where moving picture or other entertainments or exhibitions are given for private profit."

Section 6, the emergency clause, contains the following:

"The importance of this legislation to raise needed revenues for public purposes and to equalize taxes on the show and amusements herein enumerated, creates an emergency," etc.

As we view the question presented, the exemption provided for in section 2 of the act quoted above destroyed the equality and uniformity of the tax imposed in so far as it affects traveling shows described in sections 1 and 2.

The occupation tax provisions of our Constitution applicable to this case are parts of sections 1 and 2 of article 8.

That portion of section 1 applicable here is as follows:

"It [the Legislature] may also impose occupation taxes, both upon natural persons and upon corporations, other than municipal, doing any business in this state."

Section 2:

"All occupation taxes shall be equal and uniform upon the same class of subjects within the limits of the authority levying the tax."

Undoubtedly the Legislature was well within its authority when it classified traveling shows as proper subjects for taxation. But, after establishing the class, was it authorized to exempt from the payment of the tax those of the class who exhibit in a regularly established theater? We do not think so.

One of the essential elements of a valid classification is that it must be reasonable and natural, neither capricious nor arbitrary; it must rest on some difference which bears a natural, reasonable, and just relation to the act in respect to which the classification is proposed.

Associate Justice Williams, of the Supreme Court, defined a valid classification for purposes of taxation and regulation in the case of Texas Co. v. Stephens, 100 Tex. 640, 641, 103 S. W. 485, as follows:

"The considerations upon which such classification shall be based are primarily within the discretion of the Legislature. The courts, under the provisions relied on, can only interfere when it is made clearly to appear that an attempted classification has no reasonable basis in the nature of the...