Ex Parte Overstreet

• Decision Date: 22 June 1898
• Citation: 46 S.W. 825
• Parties: Ex parte OVERSTREET.
• Court: Texas Court of Criminal Appeals

46 S.W. 825

Ex parte OVERSTREET.

Court of Criminal Appeals of Texas.

June 22, 1898.

Appeal from Wise county court; J. T. Johnson, Judge.

J. H. Overstreet was arrested for peddling without a license, and brought habeas corpus. He was remanded to custody, and he appeals. Reversed.

Graham & Turner and Walton & Hill, for relator. W. W. Walling and Mann Trice, for the State.

HURT, P. J.

Appellant was arrested for pursuing the occupation of peddling buggies, carriages, etc., without first obtaining a license therefor. He resorted to the writ of habeas corpus for his discharge, but upon the trial under said writ he was remanded to custody.

The main contention of appellant is that the law under which he was arrested is unconstitutional, in that it discriminates between persons engaged in the same character of business, requiring of one an occupation tax of $350, and of the other in accordance with the amounts of the purchases, ranging from $3 where the purchases of the merchant are less than $2,000 to $300 where the amount of the purchases amount to $750,000 or more. Under article 5049, subd. 40, of the Acts of the Special Session of the 25th Legislature (page 54) it is provided: "That a merchant who pays an occupation tax, as required by this article, shall not be required to pay this special tax for selling articles named in this paragraph, when sold in his place of business or in the county in which his place of business is located." The merchants referred to by this subdivision 40 are the same as those referred to in subdivision 1, and occupy the same relation to this subject. If a merchant has paid a tax for pursuing his business, without regard to how much that tax may be, under this subdivision, it is contended he would have the right to sell buggies, etc., within the county in which his business is located, in any manner, shape, or form, either at his place of business, by sample, or by peddling the same. If this proposition be correct, as contended by relator, then there is evidently a discrimination in the tax for doing precisely the same thing. The main question, therefore, is whether or not a merchant would have the right under his license to sell buggies, etc., as a peddler, either himself or by his agents. If he would not have the right under his license, then there is no discrimination in the tax. If he would have this right, the discrimination is apparent. Let us suppose that the merchant was indicted for peddling buggies without a peddler's license, and the proof should...