Eppstein v. State

• Court: Texas Supreme Court
• Writing for the Court: Dibrell
• Citation: Eppstein v. State, 143 S.W. 144, 105 Tex. 35 (Tex. 1912)
• Decision Date: 07 February 1912
• Parties: EPPSTEIN v. STATE.

143 S.W. 144

EPPSTEIN v. STATE.

Supreme Court of Texas.

February 7, 1912.

Error to Court of Civil Appeals of Third Supreme Judicial District.

Action by the State against Milton L. Eppstein. From a judgment of the Court of Civil Appeals (138 S. W. 1124) affirming a judgment for plaintiff, defendant brings error. Affirmed.

W. L. Evans and I. M. Standifer, for plaintiff in error. Jewel P. Lightfoot, Atty. Gen., and James D. Walthall and John W. Brady, Asst. Attys. Gen., for the State.

DIBRELL, J.

This is a suit by the state of Texas against Milton L. Eppstein, to recover the sum of $2,012.15 principal, alleged to be due the state by defendant for occupation taxes as a wholesale dealer and distributor of spirituous, vinous, and malt liquors, capable of producing intoxication, as provided for by section 11 of chapter 18, of the Acts of the Thirtieth Legislature (1st Ex. Sess.) 1907. It was alleged by the state "that the defendant, as such wholesale dealer, sold within the state of Texas from July 1, 1907, up to and including October 1, 1909, spirituous, vinous and malt liquors, capable of producing intoxication, amounting to the total sum of $402,429.96, of which amount there was sold for cash $156,882.14, the remainder of said sales, amounting to $245,547.82 being sold on credit," and that by reason of such sales the defendant became and was indebted to the state of Texas in the sum of one-half of one per cent. of said gross sales collected and uncollected, amounting to the principal sum sued for, on which interest was claimed at 6 per cent. on the amount due and unpaid each quarter respectively from the due date and a penalty of 10 per cent.

The defendant answered by general demurrer and special plea, in effect admitting all the material allegations of the state's petition, except his liability to pay the tax of one-half of one per cent. on such portion of his gross sales, as shown by his several reports to have been uncollected, and that he had at the time such tax became due tendered payment to the proper officer of said tax on such portion of his sales as had been collected, and denying his liability under the statute to pay the tax on such uncollected sales.

The cause was tried by the court without a jury, and judgment was rendered for the state for the principal amount sued for, together with the penalty of 10 per cent.

No issue of fact was presented, and the sole question of law is whether the wholesale dealer in intoxicating liquors is required under the act of 1907, § 11, 30th Legislature, to pay the occupation tax of one-half of 1 per cent. on the gross sales of his business in this state, whether collected or uncollected, during the quarter for which he is to pay, or whether he is required only to pay on such amount of such gross sales as he may collect during the quarter.

The issue is determinable upon the proper construction to be given the legislative act levying the occupation tax in question (section 11 of chapter 18 of the Thirtieth Legislature) which is as follows: "Each and every individual, company, corporation or association created by the laws of this state or any other state, who shall engage in his own name or in the name of others, or in the name of its representatives or agents in this state in the business of a wholesale dealer or a wholesale distributor of spirituous, vinous or malt liquors or medicated bitters capable of producing intoxication, shall on or before the first day of July, 1907, and quarterly thereafter, make a report to the Comptroller of Public Accounts, under oath of the individual, or of the president, treasurer or superintendent of such company, corporation or association, showing the gross amount collected and uncollected from any and all sales made within this state of any of said articles during the quarter next preceding. Said individuals, companies, corporations and associations, at the time of making said report shall pay to the Treasurer of the State of Texas, an occupation tax for the quarter beginning on said date, equal to one-half of one per cent. of said gross receipts from said sale as shown by said report."

From a careful reading of the above section we conclude that those engaged in the wholesale or wholesale distribution of intoxicating liquors are required to make quarterly reports of the gross amount of any and all sales of...