Ex Parte Townsend

• Decision Date: 20 December 1911
• Citation: 144 S.W. 628
• Parties: Ex parte TOWNSEND.
• Court: Texas Court of Criminal Appeals

144 S.W. 628

Ex parte TOWNSEND.

Court of Criminal Appeals of Texas.

December 20, 1911.

Rehearing Denied February 28, 1912.

Application by W. H. Townsend for writ of habeas corpus. Writ denied, and relator remanded.

J. B. Bisland, Baker, Botts, Parker & Garwood, McGregor & Gaines, and Jesse Andrews, for relator. Jewel P. Lightfoot, Atty. Gen., C. E. Mead, Asst. Atty. Gen., and C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

On October 27, 1911, an information was filed by the county attorney in the county court of Orange county against the relator, W. H. Townsend, charging him with the offense of pursuing the occupation of selling nonintoxicating malt liquors without paying the tax and procuring the license, as is provided for in chapter 19, p. 51, Acts of the Thirty-First Legislature. The relator was arrested upon said charge, and made application to the county judge of Orange county for a writ of habeas corpus. The writ being refused, the relator made application to this court, and the application was granted by this court. The relator was released on bond, and the case is now before this court on said habeas corpus hearing.

There is an agreed statement of facts upon which the case is submitted, in which it is shown that all of the proceedings in the county court were regular; and if this court is of the opinion that the act of the Legislature above referred to imposing a tax upon those engaged in selling nonintoxicating malt liquors is constitutional, that being the only question presented, it will follow that the relator should be remanded to the custody of the proper official of Orange county. The facts show that the relator was on the date charged by the information engaged in the grocery business in the city of Orange, and, in connection with said business, he was engaged in the occupation and was selling cold drinks, including ginger ale, ginger pop, soda water, and a malt drink known as "Hiawatha," without having paid the occupation tax required therefor by law, and without having obtained the license required therefor. It is further agreed in so far as this case is concerned, that "Hiawatha" is a nonintoxicating malt liquor manufactured by the Houston Ice & Brewing Company, of Harris county, Tex.; that the commissioner's court of Orange county has regularly levied a tax of $1,000 on the occupation of selling nonintoxicating malt liquors; and that what is known as "local option" is not in effect in Orange county, there being three malt liquor dealers' licenses issued in said county under what is known as the "Robertson-Fitzhugh Act," and the three places are being operated under said malt liquor dealers' licenses, besides other licenses issued to retail liquor dealers. The relator does not hold a retail liquor dealer's or malt dealer's license, and, in fact, holds no license of any kind to sell either intoxicating or nonintoxicating liquors.

Since this case was submitted in this court, the writer has called the attention of the Attorney General to the pendency of the cause, and to the brief and argument filed herein in behalf of relator by his attorneys, in which it was stated he made certain concessions. As the case involves the constitutionality of a very important law in this state, and one which was framed to meet the constitutional objections by which a former law on this subject, enacted by the Thirtieth Legislature, was stricken down, and on account of the fact that the brief and argument for relator refers to the views and alleged concessions of the Attorney General on a vital issue in this case, in support of his contention in maintaining that this law is unconstitutional, we requested the Attorney General to file a brief and argument setting forth fully the views of the Attorney General and the Attorney General's department in support of the constitutionality of the act of the Legislature in question, if he deemed the law valid, which he assured us he did, and so ably has he and his assistants presented the questions involved we have adopted the brief and argument as the opinion of the court. He states:

"The relator vigorously attacks the validity of the law on two grounds: (1) Because the amount of the tax imposed is prohibitory and prevents the citizens of the state from engaging in a lawful business; and (2) that the act has the effect to make the tax on the pursuit of the business named in it unequal and not uniform, persons in those parts of the state where the Robertson-Fitzhugh law is in effect having to pay one amount of tax for the sale of nonintoxicating malt liquors and persons in the other parts of the state having to pay a different tax.

"We shall discuss the constitutional questions above mentioned, but, before doing so, we desire to call attention to the statement contained in relator's brief under the first proposition, which, while no doubt inadvertently made, does not in any sense express the views of the Attorney General, and in justice to himself and his department the Attorney General feels called upon to say that he has not in any manner heretofore indicated his views on the questions referred to in said statement. The statement referred to as copied in relator's brief is as follows: `It is conceded by the honorable Attorney General that the act is prohibitive; that is, that the tax named in it is fixed at such an amount that it would render the conduct of the business in the state unprofitable. That such was indeed the purpose of the Legislature is shown by the subsequent amendment of the act at the special session, by which the law which had just been passed was so changed that separate license and another tax was required for each place in the county where the occupation was pursued. It is also conceded by the Attorney General that nonintoxicating malt liquors are themselves harmless, and not deleterious to health.' There is no evidence in the record and no admission to the effect that the tax imposed is prohibitory, and while the tax is comparatively very high, and will no doubt very materially discourage the sale of nonintoxicating malt liquors, we do not think we are warranted in reaching a conclusion that the tax is necessarily absolutely prohibitive. We do not at all agree with the contention that `nonintoxicating malt liquors are themselves harmless, and not deleterious to health.' On the other hand, we think the law and facts warrant an exactly opposite conclusion. Our views as to this, however, will be more fully expressed in the discussion of the questions presented.

"The Thirtieth Legislature, by chapter 112, p. 213, Acts of 1907, enacted a law, among other things, placing an annual state tax of $2,000, and authorizing counties and incorporated cities each to levy an annual tax of not exceeding $1,000 upon all persons, firms, and corporations `selling at retail nonintoxicating malt liquors, such as Uno, Ino, Tin Top, and Teetotal, and all other such liquors.' This law was held to be unconstitutional by this court in the case of Ex parte Woods, 52 Tex. Cr. R. 575, 108 S. W. 1171, 16 L. R. A. (N. S.) 450, 124 Am. St. Rep. 1107, for the reasons that we shall hereafter mention. The present law passed by the Thirty-First Legislature, while covering the same subject as that covered by the Act of 1907, is not an amendment of any previous law, but is an independent enactment. The caption shows that it is an act to levy an occupation tax on all dealers in nonintoxicating malt liquors, and providing for the issuance of licenses, fixing penalties for the violation of the act, and providing for injunctions to prevent its violation. Section 1 of the act is as follows: `There is hereby levied upon all firms, persons, associations of persons and corporations selling nonintoxicating malt liquors an annual state tax of two thousand ($2,000) dollars. Counties, incorporated cities and towns where such sales are made may each levy an annual tax of not exceeding one thousand ($1,000) dollars upon all such persons, firms or corporations; provided that this section shall not prevent the sale of such proprietary remedies as "malt extract," "malt medicine" and "malt and iron" manufactured and used exclusively as medicine and not as a beverage, when sold upon the prescription of a regular practicing physician; provided further that not more than one sale shall be made upon any one prescription.' Section 2 of this law was amended by the second called session of the Thirty-First Legislature, as shown by chapter 9, p. 397, Acts 31st Legislature (2d Ex. Sess.), and by section 2, as amended, it is provided that each person, firm, or corporation desiring to engage in the business mentioned in section 1 of the act, before engaging in the same, shall file with the county clerk of the county in which the business is proposed to be pursued an application in writing for a license to engage therein, and shall state the place or house in which said business is to be pursued, and if within the corporate limits of any incorporated city or town that fact shall be so stated. The applicant is required to pay the tax collector of the county the entire amount of the tax that is levied by the commissioner's court, and to the city the tax levied by it. The taxes are required to be paid in advance, and no license shall be issued by the county clerk until the person applying therefor shall exhibit receipts showing the payment of all taxes. It is further provided that it shall be unlawful to carry on the business under such a license at more than one place at the same time, or in any place other than that named in said application for said license, unless the party carrying on such business shall first file with the county clerk of the county in which said business is carried on a written statement showing such change of place of business. Section 3 provides that the county clerk shall be required to make report of all licenses issued by the authority of this act as in other cases....