Hoefling v. City of San Antonio
Decision Date | 10 June 1892 |
Parties | HOEFLING <I>et al.</I> v. CITY OF SAN ANTONIO. |
Court | Texas 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.
This case originated in justice's court, and on appeal to the district court judgment was rendered against appellants upon the following agreed case:
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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