Hoefling v. City of San Antonio

Decision Date10 June 1892
PartiesHOEFLING <I>et al.</I> v. CITY OF SAN ANTONIO.
CourtTexas Supreme Court

Appeal from district court, Bexar county; W. W. KING, Judge.

Suit by William Hoefling & Son against the city of San Antonio to recover the amount of a tax enforced by defendant by criminal proceedings therefor. From a judgment for defendant on an agreed case, on appeal from the justice's court to the district court, plaintiffs appeal. Reversed.

Geo. C. Altgelt and Henry E. Vernor, for appellants. Upson & Bergstrom, for appellee.

STAYTON, C. J.

This case originated in justice's court, and on appeal to the district court judgment was rendered against appellants upon the following agreed case: "First. That plaintiffs, Wm. Hoefling, Sr., and Wm. Hoefling, Jr., are and were partners in business under the firm name of Wm. Hoefling & Son, doing business as butchers in the city of San Antonio, Bexar county, Texas, at two separate establishments or private markets, upon their own property, and not in the market house of the city of San Antonio. Second. That said plaintiffs opened said private markets upon their own property with the consent and approval of the city council of the city of San Antonio, under the provisions of the city ordinance, hereinafter set out. Third. That the city of San Antonio maintains, and for many years has had, a public market, with stalls that are rented to individuals at certain rentals, with prices according to location, and values fixed by the city council of San Antonio; but the market master does not collect said amount of $75 from butchers occupying stalls in said public market in addition to such stall rents. Fourth. That the following ordinance, passed by the city council of the city of San Antonio, is the only ordinance by virtue of which the sum of money herein sued for was collected from plaintiffs, and paid by them under protest, to wit: `Sec. 20. The city council may grant to individuals the right of establishing in any designated locality within the city stalls for the vending of meat, granting general market privileges. Each person or firm granted such right shall pay therefor to the market master, for the use of the city, seventy-five dollars per annum, quarterly in advance, and shall post the receipts in a conspicuous place in said stall. The city council may revoke any grants made hereunder, at any time deemed necessary.' Fifth. That heretofore, to wit, on the 1st day of April, 1891, plaintiffs were required by the market master named in said ordinance to pay to said city the sum of thirty-seven dollars and fifty cents, ($37.50,) being eighteen dollars and seventy-five cents ($18.75) on each one of said meat stands, for three months' license tax from April 1, 1891, to June 30, 1891. Sixth. That plaintiffs paid said tax under protest, and after the institution of criminal proceedings in the recorder's court in the city of San Antonio, and before making said payment, duly notified the authorities of the said city of San Antonio that said payment of thirty-seven dollars and fifty cents was made under protest, and that suit would be brought for money so paid under protest. Seventh. That there is no question before the court as to sufficiency of the protest, or as to the amount paid by plaintiffs, but that the only question before the court is the validity or invalidity of the ordinance aforesaid." "Tenth. That there is no other ordinance of the city of San Antonio imposing any occupation tax or license tax upon butchers except the one embodied in this agreement." "Twelfth. That the sole question for the determination of the court is the validity of the aforesaid city ordinance, so that, if the same is held valid, judgment should be rendered for defendant, and if the same is held invalid judgment should be rendered for plaintiffs."

The charter of the city, enacted on August 13, 1870, provides that the may or and council shall have power "to license, tax, and regulate merchants, commission merchants, hotels, and boarding house keepers, restaurants, drinking houses or saloons, barrooms, beer saloons, and all places or establishments where intoxicating or fermented liquors are sold, brokers, pawnbrokers, money brokers, real-estate agents, insurance brokers, insurance agents, and auctioneers, and all other trades, professions, occupations, and callings, the taxation of which is not prohibited by the constitution of the state, which tax shall not be construed to be a tax on property." Sp. Laws 1870, p. 253. Section 175 of the charter provides that the city council "shall have power to levy and collect taxes, commonly known as `licenses,' upon trades, professions, callings, and other business carried on," and, after enumerating many things and occupations that may be thus taxed, but not embracing butchers, it declares that "this enumeration shall not be construed to deprive the city council of the right and power to levy and collect other license taxes, and from other persons and firms, under the general authority herein granted." Another section provides "that, if any person shall engage in any business, calling, avocation, or occupation which by ordinance is subject to a license tax, without first having obtained such license, he, she, or they shall be liable to imprisonment and fine of ten dollars for each day said violation of said ordinance shall continue." Section 178. Another section provides that the city council shall have power "to make such rules and regulations in relation to butchers as they may deem necessary and proper." Section 67. Other sections give power to make regulations to secure the health of the city, and to keep cleanly and in good order all places where offensive matter is liable to accumulate, and to enforce such regulations by fine and imprisonment. Sections 49, 54, 62, 91. Section 76 of the charter gives the power to license, tax, and regulate all occupations, trades, and professions; but it is evident that the power given to license such occupations is not the same as the power to tax them, nor are either of these powers the same as the power given to regulate them.

In a general sense, "a license is an official permit to carry on a business or trade or perform other acts which are forbidden by law except to persons obtaining such permit." Abbott. This, however, is not the sense in which the word is used in the charter of the city of San Antonio, for there was no law in force in this state which prohibited the following of many of the occupations contemplated by the charter, or of that of a butcher engaged in vending meats, unless a license was first obtained. There are occupations, however, which, on account of their character, may prove hurtful to the public unless properly conducted, and, although they are not prohibited by the common law nor by statute, it has been seen that the public welfare requires that they should to some extent be kept under some restraint; and to this end it has become usual to grant a permit to follow such occupations, and usually, to insure proper conduct of the business, an obligation to conduct it properly is required to be executed before this permit is issued; but this is not always the case, and when not, if the business be not one to the conduct of which a privilege is necessary, the permit serves but little purpose other than to give information to the public authorities of the persons engaged in a given occupation, their places of business, and other like matters,...

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