Ex Parte Mehlman

• Decision Date: 13 June 1934
• Docket Number: No. 16923.,16923.
• Citation: 75 S.W.2d 689
• Parties: Ex parte MEHLMAN.
• Court: Texas Court of Criminal Appeals

75 S.W.2d 689

Ex parte MEHLMAN.

No. 16923.

Court of Criminal Appeals of Texas.

June 13, 1934.

Rehearing Denied November 7, 1934.

Commissioner's Decision.

Appeal from County Criminal Court, Dallas County; Henry King, Judge.

Application on the relation of M. Mehlman for a writ of habeas corpus. From a judgment remanding the relator, the relator appeals.

Affirmed.

R. B. Humphrey, of Dallas, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

CHRISTIAN, Judge.

Chapter 29 of the General and Special Laws passed by the Forty-Third Legislature at the First Called Session (Vernon's Ann. P. C. art. 934a), among other things, provides that no person shall engage in the business of retail dealer in either fresh or frozen edible aquatic products without procuring a license from the Game, Fish and Oyster Commission; that the licensee shall pay an annual tax of $3 in any city or town of less than five thousand population, $10 in any city or town of not less than five thousand and not more than forty thousand population, and $20 in any city or town of more than forty thousand population; and that failure to pay the tax and procure the required license shall constitute a misdemeanor for which the person offending may be punished by a fine of not less than $10 nor more than $200. Also the act provides that no person shall engage in the business of wholesale dealer of fish, oysters, shrimp, or other commercial edible aquatic products without paying an annual tax of $200 and procuring a license from the Game, Fish and Oyster Commission; and that failure to pay the tax and procure the license shall constitute a misdemeanor punishable as in the case of a retail dealer. The pertinent definitions set forth in the act are as follows:

"A `Wholesale Fish Dealer' is any person engaged in the business of buying for the purpose of selling, canning, preserving or processing, or buying for the purpose of handling for shipments or sale, fish or oysters or shrimp or other commercial edible aquatic products, to Retail Fish Dealers, and/or to Hotels, Restaurants or Cafes and to the Consumer."

"A `Retail Fish Dealer' is any person engaged in the business of buying for the purpose of selling either fresh or frozen edible aquatic products to the consumer."

Relator was engaged in the business of retail dealer in fish in the city of Dallas, the population of which exceeds forty thousand, without paying the required tax of $20 and procuring a license. Upon being arrested under a complaint charging him with engaging in the business of retail dealer without procuring the required license, relator applied to the judge of the county criminal court of Dallas county for a writ of habeas corpus. Upon the writ being awarded, a hearing was had and relator remanded to the custody of the proper officer. The case is here on appeal from the order mentioned.

The contention is made that the act is invalid, in that it is so indefinitely framed that it cannot be ascertained from the definitions of dealers what sort of license a particular dealer must have or what amount he must pay as a license fee. See section 10, article 1, Constitution of Texas, and article 6, Penal Code. It is observed that one who sells to the consumer is a retail dealer. The word "consumer," not being defined in the act, must be taken and construed in the sense in which it is understood in common language. Article 8, Penal Code. Webster's International Dictionary defines a "consumer" as: "One who uses (economic) goods and so diminishes or destroys their utilities;—opposed to producer." The same authority defines the word "consume" to mean, "use up, expend, waste, devour," and gives as synonyms the following: "Destroy, swallow up, engulf, absorb, waste, exhaust, spend, expend, squander, lavish, dissipate, burn up." In State v. Lagomarcino-Grupe Co., 207 Iowa, 621, 223 N. W. 512, 513, the Supreme Court of Iowa, in construing the word "consumer" as employed in a statute levying a tax on cigarettes, used language as follows: "The word `consume' has a general and popular meaning which is consistent with the dictionary definition and which it must be assumed was in the mind of the Legislature at the time of the enactment of the statute in question."

It is clear from a reading of the definitions of dealers that one who confines his business to selling to the consumer is required to pay the tax provided for retail dealers, and that the amount of such tax is determined by the population of the city or town in which the occupation is pursued. It is true that the wholesale dealer is permitted to sell to the consumer. However, when he has paid the tax required of wholesale dealers he is authorized to extend his operations. For example, in addition to selling to the consumer, he may buy for the purpose of canning and may buy for the purpose of selling to retail dealers. For the privilege of extending his operations beyond those of the retail dealer, he pays a higher tax. It is argued, however, that the wholesale dealer is permitted to sell to hotels, restaurants, and cafés, all of which are properly comprehended by the term "consumer" as employed in the definition of "retail dealer," and that therefore the dealer who desires to sell to hotels, etc., is unable to determine the sort of license he must secure. We perceive nothing in the definition of "retail dealer" that should be taken to prohibit one operating under a retail dealer's license from selling to hotels, restaurants, and cafés; they being comprehended by the term "consumer" as that term is ordinarily understood. We, therefore, express the opinion that one desiring to sell to the consumer alone is apprised by the act that he is required to procure a retail dealer's license, and that thereunder he may sell to hotels, restaurants, and cafés. We are constrained to hold that the definition of "retail dealer" is sufficient to meet the legal demand that provisions of the penal law must be intelligible.

It is urged that the act is unconstitutional, in that it is provided therein that the money derived from levying the tax shall be appropriated exclusively to the use and benefit of the Game, Fish and Oyster Commission. It is pointed out that section 3, article 7, of the Constitution provides that one-fourth of the revenue derived from state occupation taxes shall be set apart for the benefit of the public free schools. It is unnecessary to decide whether the act is a regulatory measure under the police power, or a revenue measure. If that part of the act relating to the appropriation of the receipts should be held invalid—and we disclaim any intention of so holding—the remainder of the act would not be affected. We quote section 9 (Acts 43d Leg. [1st Called Sess.] 1933, c. 29): "If any paragraph, section or any part of this Act shall be held unconstitutional or inoperative, it shall not affect any other paragraph, section or part of this Act; and the remainder of this Act, except the part declared unconstitutional or inoperative shall continue to be in full force and effect."

It is insisted by relator that the act is a revenue measure controlled by the provisions of sections 1 and 2 of article 8 of our Constitution, and that said act violates that part of said section 2 requiring that "all occupation taxes shall be equal and uniform upon the same class of subjects within the limits of the authority levying the tax." We reiterate that it is unnecessary to decide whether the tax is a regulatory measure under the police power, or a revenue measure. In either event the Legislature is prohibited from making an arbitrary or unjustifiable classification. Davis et al. v. White, County Tax Collector, et al. (Tex. Civ. App.) 260 S. W. 138. If it should be conceded that the act is a revenue measure, we are unable to discern wherein the classification adopted by the Legislature is violative of the constitutional provision to which reference has been made. Dealers are divided into wholesalers and retailers. The tax exacted of retailers ranges from $3 to $20, being graduated according to the population of the city or town in which the dealer pursues his occupation. Touching the power of the Legislature to classify the subjects of occupation taxes, we quote the language of Associate Justice Williams in Texas Company v. Stephens et al., 100 Tex. 628, 103 S. W. 481, 485: "The very language of the Constitution of the state implies power in the Legislature to classify the subjects of occupation taxes and only requires that the tax shall be equal and uniform upon the same class. Persons who, in the most general sense, may be regarded as pursuing the same occupation, as, for instance,...