Ex Parte Mihlfread

• Decision Date: 22 May 1935
• Docket Number: No. 17714.,17714.
• Citation: 83 S.W.2d 347
• Parties: Ex parte MIHLFREAD.
• Court: Texas Court of Criminal Appeals

83 S.W.2d 347

Ex parte MIHLFREAD.

No. 17714.

Court of Criminal Appeals of Texas.

May 22, 1935.

Commissioners' Decision.

Appeal from Tom Green County Court; Jim W. Stovall, Judge.

Application by F. J. Mihlfread for a writ of habeas corpus. From an order refusing release, petitioner appeals.

Reversed, and release from custody ordered.

B. W. Smith, of San Angelo, for appellant.

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

CHRISTIAN, Judge.

Relator is charged by complaint in the corporation court of the city of San Angelo with having connected with him in his business of photography a solicitor; it being averred that said employee solicited patronage for relator's business without relator having first paid the tax assessor of the city of San Angelo the $50 annual license fee required by a city ordinance. Upon being taken into custody, relator sought his release by way of habeas corpus, and was remanded to custody. Hence this appeal.

Relator insists that the ordinance under which the complaint was drawn is invalid on several grounds. It is provided in said ordinance that persons engaged in photography in the city of San Angelo shall obtain a license and pay an annual fee of $10. A further provision is to the effect that, in addition to the annual fee of $10, each photographer shall pay an annual fee of $50 for each solicitor engaged or connected with him in soliciting business. We quote: "The term `solicitor' herein shall mean any person whose principal business or occupation is going from house to house, or from store to store, or from place of business to place of business, or from building to building soliciting patronage for any person, firm, corporation or association of persons engaged in the business of photography." One section of the ordinance requires that a photographer who engages in person or by solicitor in collecting money in advance shall make bond in the sum of at least $1,000, conditioned that said photographer will carry out his contract, etc.

It is conceded that the state has not required an occupation tax on persons engaged in the business of photography. Hence, if the city has undertaken to levy an occupation tax on photographers, the ordinance is void, as the Legislature must determine that the occupation may be taxed for the benefit of the state before municipal corporations may tax it at all. Hoefling et al. v. City of San Antonio, 85 Tex. 228, 20 S. W. 85, 16 L. R. A. 608. If the said tax is levied for regulation under the police power of the city and not for revenue, then the opinion is expressed that the ordinance is invalid for the reason that the proof was uncontroverted that the tax was prohibitory in so far as the fee of $50 for each solicitor employed was concerned. Although a fee for a license may be exacted when the purpose of the tax is to regulate the business under the police power, still such fee may be exacted...