Ex Parte Woods

• Decision Date: 19 February 1908
• Parties: Ex parte WOODS.
• Court: Texas Court of Criminal Appeals

108 S.W. 1171

Ex parte WOODS.

Court of Criminal Appeals of Texas.

February 19, 1908.

Rehearing Denied March 20, 1908.

Habeas corpus on petition of W. C. Woods. Writ granted. Petitioner discharged.

J. J. Eckford, O. L. Stribling, Bisland & Bruce, T. H. McGregor and Wm. Aubrey, for relator. Looney & Clark and F. J. McCord, Asst. Atty. Gen., for the State.

RAMSEY, J.

On July 25, 1907, application was made by relator for a writ of habeas corpus to Hon. W. L. DAVIDSON, Presiding Judge of this court. The writ was granted and the application made returnable before the court at the Tyler term of last year. The matter was submitted at Tyler; but, in view of the absence of Judge DAVIDSON at the time of the submission and the recent accession of the writer to the bench, the court requested oral argument on the important matters involved. The case has been ably and well briefed on both sides and thoroughly presented on oral argument. Counsel for the state make a clear statement of the several matters involved in the application, and for convenience, and as conducive to clearness, we adopt their classification of the propositions urged by the several attorneys for the applicant.

As grounds for the discharge of the relator the following propositions are urged: (1) It is urged that the act in question is void, because in conflict with section 35, art. 3, of the Constitution, in that it contains "more than one subject." (2) That the act is void, because in conflict with section 20, art. 16, of the Constitution (local option clause), in that (a) it attempts to delegate to the people the power to levy a tax on the liquor business; (b) it attempts to enlarge the scope of the local option law; (c) the Legislature is without power to enact any prohibitory law with reference to the sale of liquor, except as provided by section 20, art. 16, of the Constitution. (3) That the act is void, because in conflict with section 2, art. 8, of the Constitution, in that the (alleged) tax is not "equal and uniform," within the meaning of the Constitution. (4) That the act is void, because the license tax is prohibitory, the penalties cruel and unusual, and prohibited by section 13, art. 1, of the Constitution, and, being so enormous, operate to deter the citizen from invoking the protection of the courts, and thereby deny due process of law, as prohibited by section 19, art. 1, of the Constitution. (5) That the act is unconstitutional and void, because the traffic regulated, being nonintoxicated liquors, a harmless business, is taken out of the domain of the police powers of the Legislature. (6) That the act is in conflict with section 28, art. 1, and section 56, art. 3, of the Constitution; in other words, that the act is a local or special law, and for that reason is void. It will be perceived that all the grounds urged as a basis for the discharge of the relator raise constitutional questions. If the act under which he is charged is in contravention of the Constitution of this state, and violative of same, and we shall hold that either of the propositions above stated are well taken, then it must follow that the relator is entitled to his discharge.

The Thirtieth Legislature (Laws 1907, p. 212, c. 112) undertook to levy and did levy an occupation tax on nonintoxicating malt liquors. By section 1 of this act it is provided as follows: "Section 1. In all counties, justices' precincts, towns, cities or other subdivisions of a county where qualified voters thereof have, by a majority vote determined that the sale of intoxicating liquors shall be prohibited therein, there is hereby levied upon all firms, persons, associations of persons and corporations, selling at retail nonintoxicating malt liquors, such as `Uno,' `Ino,' `Frosty,' `Tintop' and `Teetotle,' and all other such liquors an annual state tax of $2,000, and counties, also incorporated cities and towns where such sales are made, may each levy an annual tax of not exceeding $1,000 upon all such persons, firms or corporations. Provided, that this section shall not apply to regular druggists or pharmacists, who, as such, keep for sale as a part of a regular drug stock, such proprietary remedies as `malt extract,' `malt medicine,' and `malt and iron' used exclusively as medicine and not as a beverage." Among the contentions of relator is that this section is in contravention of section 2, art. 8, of the Constitution, which in respect to occupation taxes reads as follows: "All occupation taxes shall be equal and uniform upon the same class of subjects within the limits of the authority levying the tax." It is also contended by counsel for relator that section 3 of the Bill of Rights is important to be considered in connection with this contention, and that a proper construction of section 2, art. 8, is aided by reference to section 3 of the Bill of Rights. This section is as follows: "All free men, when they form a social compact, have equal rights and no man or set of men, is entitled to exclusive separate public emoluments or privileges but in consideration of public services."

This court has seemed, in decisions heretofore, to have esteemed this section of the Bill of Rights as having some application to the uniformity or quality of taxing measures. Ex parte Jones, 38 Tex. Cr. R. 482, 43 S. W. 513. The Constitution preceding that under which we are now operating contained the following provision: "Taxation shall be equal and uniform throughout the state." Whereas the present Constitution provides: "All occupation taxes shall be equal and uniform upon the same class of subjects within the limits of the authority levying the tax." This has been held (Fahey v. State, 27 Tex. Cr. App. 146, 11 S. W. 108, 11 Am. St. Rep. 182) as applying to the whole state, as to legislative authority, and that of a county, city, or town, as to their respective boundaries. So that the provision of the Constitution here in question in fact provides that taxes shall be equal and uniform throughout the state, as applied to all taxes levied for state use by the Legislature. If the contention is true that the act of the Legislature complained of makes an exception in favor of druggists and pharmacists, and if it be true, as contended by relator, that the tax levied is not equal and uniform throughout the state upon the same class of subjects, then the tax levied is without authority of law, in contravention of the Constitution, and the relator is entitled to be discharged.

This is not a new question in this state. This matter has received consideration, both by this court and by the Supreme Court. Probably the most notable case in which this provision of the Constitution has received construction was the case of Pullman Palace Car Company v. State of Texas, 64 Tex. 274, 53 Am. Rep. 758. In that case the state sought to enforce an occupation tax of $2 a mile under that part of the act of March 24, 1881, authorizing the collection from every person, firm, etc., owning or running any palace car, sleeping or dining cars, not owned by the railway company, of any railroad in this state. Touching this matter and the contention that the act was invalid, in that the occupation tax sought to be laid was not equal and uniform, the court say: "The inquiry arises whether a law which thus imposes a tax on others than railway companies for the pursuit of this business, while it exempts railway companies therefrom, does not violate the provisions of the Constitution referred to. That the tax contemplated by the act is an occupation tax it too clear for discussion. Does the business done by persons or corporations owning such cars and running them on the roads of others, or the business done by persons not owning, but running, such cars on the roads of others, and business done by railway companies on their own roads with such cars, embrace the same class of subjects of taxation? The subject of taxation is the thing or business done, the occupation followed, for and on account of which the tax is imposed on persons and corporations that pursue it. The business or occupation of the owners of such cars running them on the roads of others, and of those who are not owners, but run such cars on the roads of others, in so far as the particular occupation for which the tax is imposed is concerned, in no essential differs from that pursued by a railway company that runs its own cars of the same kind for the same purpose over its own road. The same acts and facts make the occupation in either case, and it looks to the same end and purpose. That a railway company may pursue another business or occupation than that taxed by the law in question cannot affect the question whether a business which it does pursue is the subject of taxation for the pursuit of which others are taxed; nor can the fact that it owns other property, without which the occupation in a given case could not be pursued affect the question. There are, however, some occupations taxed which are very kindred in the elements which make them up; i. e., the acts and things which constitute the occupation taxed. * * * Here the facts which constitute the occupation are in part the same, but not entirely so, and hence are held to belong to different classes of occupations, and not required to pay the same amount of tax. There is no act or fact entering into the occupation of running such cars as are mentioned in the statute over the road of another which does not enter into the occupation of the road owner who runs over his own road the same kind of cars for the same uses and purposes, from which the road owner can be withdrawn from the class on which the statute imposes the tax. If the things done constitute in one person or corporation the taxed occupation, no one doing the same things can be omitted from the class taxed without a violation of the constitutional provisions, even though the omitted or excepted person or corporation may do more or other things than are...