Fahey v. State

• Decision Date: 30 January 1889
• Citation: 11 S.W. 108
• Court: Texas Court of Appeals
• Parties: FAHEY <I>v.</I> STATE.

11 S.W. 108

FAHEYv.

STATE.

Court of Appeals of Texas.

January 30, 1889.

Appeal from district court, Galveston county; G. COOK, Judge.

Defendant, David Fahey, was convicted of selling liquor without license, and he appeals.

Gresham, Jones & Spencer, for appellant. Asst. Atty. Gen. Davidson, for the State.

HURT, J.

This is a conviction for pursuing and following the occupation of selling spirituous, vinous, and malt liquors, in quantities less than one quart, without first having obtained a license therefor, and without having paid the tax required by law. The prosecution is based upon the acts of March 11, 1881, and April 4, 1881. Appellant moved to quash the indictment upon several grounds: (1) Because the laws of March 11 and April 4, 1881, levying the occupation tax, and providing for the issuance of a license, is unconstitutional and void, in this: that said acts contain more than one subject, to-wit, the exercise of the police power, and that of taxation for general revenue, and embrace subjects not expressed in the titles. (2) Said acts are unconstitutional in this: that they require the said payment of the tax to the state, county, and city in advance for the term of one year, as a condition precedent to the right of pursuing said occupation, while all others are permitted to pay quarterly; and are in conflict with and repugnant to sections 13 and 19 of the bill of rights, and sections 2 and 3 of article 8 of the state constitution, and the fourteenth amendment of the constitution of the United States, in this: that they require a license of persons pursuing the occupation of appellant, and of the billiard-table keeper, and require none of persons pursuing any of the other occupations taxed by law, and provide no means for obtaining license by such other persons.

Do the acts of March 11 and April 4, 1881, contain more than one subject? If so, they are void. The constitution provides that "no bill shall contain more than one subject, which shall be expressed in the title." Article 3, § 35. In the preceding constitution the word "object" was used instead of the word "subject." Judge BONNER observes: "It may be presumed that the convention had some reason for substituting a different word from that which had been so long in use in this connection, and that, in the light of judicial expressions, the word `subject' may have been thus substituted as less restrictive than `object.'" 54 Tex. 341. In People v. Lawrence, 36 Barb. 192, the supreme court of New York say: "It must not be overlooked that the constitution demands that the title of an act shall express the subject, not the object, of the act. It is the matter to which the statute relates, and with which it deals, and not what it proposes to do, which is to be found in the title. It is no constitutional objection to a statute that its title is vague or unmeaning as to its purpose, if it be sufficiently distinct as to the matter to which it refers." What is the subject of the acts of March 11 and April 4, 1881? Most clearly, the subject of these acts is the regulation of the sale of spirituous, vinous, and malt liquors and medicated bitters. Now, if there be but one subject in the act, but more than one object, the act would not be obnoxious to the constitution. We could concede for the argument that the objects of these acts are to regulate the sale of these liquors, to collect revenue, and divers other purposes and objects, still, unless there was more than one subject in the act, it would be valid and constitutional. Again, suppose that there be more than one subject mentioned in the acts, if they be germane or subsidiary to the main subject, or if relative, directly or indirectly, to the main subject, — have a mutual connection, — and are not foreign to the main subject, or so long as the provisions are of the same nature, and come legitimately under one general denomination or subject, we cannot hold the act unconstitutional. Giddings v. San Antonio, 47 Tex. 556; Breen v. Railway Co., 44 Tex. 306; Austin v. Railroad Co., 45 Tex. 267; Phillips v. Bridge Co., 2 Metc. (Ky.) 222; Smith v. Com., 8 Bush, 112; State v. County Judge, 2 Iowa, 284; Battle v. Howard, 13 Tex. 345; Webb v. Maxan, 11 Tex. 678; Tadlock v. Eccles, 20 Tex. 792. We are of opinion that these acts do not contain more than one subject.

The second ground: "That the acts above cited require payment of the tax in advance for the term of one year as the condition precedent to the right of pursuing said occupation, while all others are permitted to pay quarterly, and hence in conflict with and repugnant to sections 13 and 19 of the bill of rights, and sections 2 and 3 of article 8 of the state constitution, and the fourteenth amendment to the constitution of the United States, in this: that they require a license of persons pursuing the occupation of appellant, and of the billiard-table keeper, and require none of persons pursuing any other occupation taxed by law, and provide no means for obtaining a license for such persons." To answer these questions: (1) The constitution confers the power upon the legislature to impose occupation taxes, section 1, art. 8. (2) But all occupation taxes must be equal and uniform upon the same class of subjects, within the limits of the authority levying the tax. Section 2, art. 8.

Upon this occupation the state tax is the same all over the state, and, if a county desires to impose a tax upon this occupation, it must be equal and uniform over the county that is, all persons must be required to do and perform the same things as acts precedent to the right to pursue the occupation in said county, and they must pay the same amount of tax, neither more nor less. So within the limits of cities or towns. It is evident that the tax imposed upon the occupation of selling in quantities less than one quart the liquors named in the acts cited is equal and uniform in the state, and it appears from this record that it is equal and uniform within the limits of Galveston county. The legislature is the authority levying the state tax. The county of Galveston, through the commissioners' court, is the authority levying the county tax within the county limits. The tax being equal and uniform in every particular over the state as to the state tax, and being equal and uniform within the limits of the county of Galveston, instead of being obnoxious to the state constitution, these acts are in strict conformity with its...