Harvill v. State, 9505.
| Decision Date | 06 June 1945 |
| Docket Number | No. 9505.,9505. |
| Citation | 188 S.W.2d 869 |
| Parties | HARVILL v. STATE. |
| Court | Texas Court of Appeals |
Appeal from 126th District Court, Travis County; Roy C. Archer, Judge.
Suit by the State of Texas against J. B. Harvill to recover amount allegedly due as occupation tax by a loan broker and penalty for failure to exhibit or have in defendant's immediate possession a license or receipt showing that taxes had been paid in advance for the year involved. Judgment for plaintiff, and defendant appeals.
Affirmed.
Cunningham, Lipscomb & Cole, of Bonham, for appellant.
Grover Sellers, Atty. Gen., and W. V. Geppert and C. K. Richards, Asst. Attys. Gen., for appellee.
The State of Texas sued J. B. Harvill and recovered judgment for $150, due as his annual occupation tax as a loan broker; and also sued him and recovered judgment for $50, due as penalty for failure to exhibit, or to have in his immediate possession a license or receipt showing the tax to have been paid in advance for the year in question.
Appellant Harvill did not pay the tax in advance for the year in question, and of course did not exhibit at his place of business, nor have in his immediate possession, a license or receipt showing that he had done so. He makes two contentions here:
1. That the evidence did not show him to be a loan broker within the meaning of the statutes imposing the tax.
2. That the judgment for penalty finds no support in law.
The stipulated facts and the testimony of appellant show that he was a practicing attorney, but that during the year in question he was also engaged in the business of making loans of money to the various individuals listed, which loans were secured by chattel mortgages upon household and kitchen furniture and equipment. Such business was advertised in a newspaper, as follows:
Vernon's Ann.Civ.St. art. 7047 and Sec. 14 thereof provide that there shall be collected in advance "from loan brokers, as that term is defined by the laws of this State, an annual tax of one hundred and fifty dollars."
Sec. 2 of Art. 6165a, V.A.C.S., defines a loan broker as follows: "A loan broker is a person, firm, or corporation who pursues the business of lending money, purchasing salaries and taking for security for the payment of such loan and interest thereon an assignment of wages or assignment of wages with Power of Attorney to collect the same or other order for unpaid chattel mortgage or bill of sale upon household or kitchen furniture." (Italics ours.)
Appellant contends that he did none of the things set forth by the foregoing underscored language of the statute, but that he merely made loans of money to the various mortgagees listed and took as security therefor ordinary form chattel mortgages upon household and kitchen furniture as stipulated. He argues that having never at any time accepted or required any assignment or other order for unpaid chattel mortgages, and never having taken a bill of sale upon household or kitchen furniture, he was not a loan broker within the meaning of that term as used in the statute.
The trial judge, trying the case without a jury, found and concluded upon sufficient evidence that appellant was a loan broker within the meaning of the statutes imposing the occupation tax in question. The facts stipulated and testified to by appellant show that he advertised and conducted a business of lending money upon interest to numerous persons during the year in question. The stipulations show a list of 35 such loans, aggregating several thousand dollars, each of which was secured in whole or in part by a chattel mortgage on household or kitchen furniture, and each such mortgage was recorded in Lamar County, Texas.
Art. 6165a, Acts 1927, 1st Called Sess., 40th Leg., c. 17, amended and reenacted portions of prior statutes defining and regulating the loan broker business. The above quoted portion of the amending act defining a loan broker made no material change in the language of the former statutes defining a loan broker. The decisions construing both the original and the amended acts hold that a loan broker as so defined is one who pursues the business of lending money upon interest, taking as security therefor an assignment of wages, or a chattel mortgage on household and kitchen furniture. Brand v. State, 109 Tex.Cr.R. 96, 3 S.W.2d 439; Hubbard v. State, 109 Tex. Cr.R. 320, 4 S.W.2d 971; Juhan v. State, 86 Tex.Cr.R. 63, 216 S.W. 873; Sutton v. Lovan, Tex.Civ.App., 279 S.W. 295; Mason v. Green, Tex.Civ.App., 226 S.W. 829; Means v. State, Tex.Civ.App., 75 S.W.2d 953. It is clear...
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...for the violation of any legally promulgated rule or regulation against any person violating such rule or regulation. Harvill v. State, 188 S.W.2d 869 (Tex.Civ.App.1945). The Legislature, therefore, had the authority to provide a civil penalty for breach of the contract with the Once he vol......
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