J. F. Baker & Co. v. Panola Cnty.

• Citation: 30 Tex. 86
• Parties: J. F. BAKER & CO. v. PANOLA COUNTY.
• Decision Date: 30 April 1867
• Court: Supreme Court of Texas

30 Tex. 86

J. F. BAKER & CO.

v.PANOLA COUNTY.

Supreme Court of Texas.

April, 1867.

The 1st section of the act of 11th May, 1846, to incorporate counties, reads as follows: “Each county which now exists, or which may be hereafter established, in this state, shall be a body corporate and politic.” Pas. Dig. art. 1044, note 430. The county court is the organ or agent of the county, but in levying taxes it is limited by law.

The 4th section of the act of 16th March, 1848, to organize county courts, reads as follows: “The said county courts shall have power to levy and collect a tax for county purposes upon all subjects of taxation in their respective counties on which a tax may be levied by the state: Provided, Said tax shall not exceed in one year one-half the amount of the tax levied by the state on such subjects of taxation: And provided, also, That such tax shall be apportioned in the same manner as the state tax; and the said tax upon all subjects of taxation, other than trades, and occupations, and professions, shall be assessed and collected by the assessor and collector of state taxes in the same manner as the state tax, and shall be paid by him into the county treasury; and all of said taxes upon trades, occupations, and professions, shall be collected by the county treasurer in the same manner as the state tax upon such subjects is collected, and the county treasurer shall have the same power to enforce the collection of such taxes for the counties as the assessor and collector has for the state.” Pas. Dig. art. 1230. This article limited the powers of the counties to tax to the subjects upon which a tax was levied by the state.

But the tax law of 1848, upon which the controversy rested, did not enumerate the occupation of retailing spirituous liquors among the callings to be taxed. O. & W. Dig. arts. 1933, 1936, 1937; Pas. Dig. arts. 5150, 5153, 5154, notes 1127-1129. Therefore it was not a subject of taxation on which a tax had been levied by the state. Pas. Dig. art. 1230.

The act of 2d February, 1856, licensing the retailing of spirituous liquors, was not intended as a tax law, as ordinarily understood; but it was mainly for that occupation, conferring a privilege upon the conditions prescribed in the act. Pas. Dig. arts. 2061-2071, notes 651-653.

The assessors and collectors had no authority to collect this tax; and hence the county court had not the authority to levy a tax on this occupation of retailing liquor.

Where a citizen was compelled to pay the county tax, in addition to the license tax prescribed under the act of 1856, as a condition precedent to obtaining a license to retail liquor under that act, and paid under protest, he had the right to recover the money; his claim having been refused under the 2d section of the act about counties. Pas. Dig. art. 1045; 25 Tex. 460.

APPEAL from Panola. The case was tried before Hon. CHARLES A. FRAZER, one of the district judges.

This was an action brought by the appellants against the appellee to recover back the sum of $280, paid by them to Panola county as a license tax for retailing spirituous liquors. The demurrer of defendants was sustained, judgment rendered against plaintiffs, to which they excepted, and brought this appeal.

A. W. De Berry, for appellant. The principal question that I desire to present is this: Had the county court any authority to levy any license tax in addition to the $250 tax imposed upon retailers by the act of 2d February, 1856? O. & W. Dig. p. 386. The appellee claims the right under art. 248, O. & W. Dig.

Again, the act of 2d February, 1856, art. 1754, provides, that upon the presentation of the application the court shall direct the clerk to issue a license to the applicant, authorizing him or them to retail, etc., upon the conditions thereinafter named. The conditions are, the payment of $250 and the giving of bond.

No other conditions are mentioned. It will, therefore, be presumed that no others were intended.Charles D. Moore, for appellee. I presume that it is not necessary to cite authority to show that all the counties are corporate bodies, and as such have full and ample authority to do any act not in conflict with the constitution and laws of the state. It certainly cannot be denied that the county courts have power to exercise all the authority conferred on them by statute. The duties and powers of the county courts, other than for probate business, is fully defined by statute. O. & W. Dig. art. 248. By reference to that section of the statute it is seen, that the several county courts are authorized to levy taxes upon all things taxed by the state, provided the tax does not exceed fifty per cent. of the state tax for any one year, and provided taxes shall be equal: the last cited article being the one under which the tax imposed was levied.

I would ask, is there anything contained in article 1759 that would abridge the power of the county courts to levy the tax, unless it is the application of the revenue thus arising? I would here remark, that in addition to the authority conferred on the county courts by article 248, to levy taxes generally, article 1986 (O. & W. Dig.) beyond a doubt authorizes the said court to tax, for county purposes, all vocations and callings.

But to return to the argument based upon the application of the revenue arising under the liquor law: I reply, the state is bound to protect her citizens and to organize and establish courts to decide their disputes. Vatt. pp. 77 and 78, secs. 158, 159, 161. This being the duty of the state, it follows that the state must sustain the courts.

The state imposed the tax of $250 per annum on retailers, and had the authority under the constitution. Const. State, art. VII, sec. 27. And if the state levied the tax through the legislature, had not the legislature the authority to direct how and to what particular purpose the revenue thus arising, or any other revenue, should be appropriated? Vatt. p. 111, sec. 242.

The mere fact that the liquor law does not, in so many terms, authorize the county courts to lay an additional tax, will not repeal the provisions of arts. 248 and 1986, O. & W. Dig. There is no repealing clause in the act of February 2, 1856. And it is a well established principle, that repeals by implication are not favored. “A subsequent act, in order to repeal a former act by implication, must be clearly in conflict with the former act, and show a change of the legislative mind.” Such is not the case in this instance.

SMITH, J.

The main question in this cause is, whether the county courts, in the years 1858 and 1859, had authority to levy and collect, for county purposes, a tax upon the occupation of retailing spirituous and vinous liquors in quantities less than a quart, in addition to the $250 per annum fixed by law as “license tax” upon that occupation.

Each county established in this state is a body corporate and politic. Art. 229, O. & W. Dig.; Pas. Dig. art. 1044, note 430. And the county court is constituted the organ or agent by which the county acts. It contracts, creates, and fixes the liabilities upon the county, and provides to discharge them; yet I presume it cannot be seriously contended, that the county court has any power or authority to levy a tax beyond that which may be conferred upon it by law. The extent of its agency for the county is fixed and defined by law, and it cannot go beyond the authority thus conferred.

“An act to organize county courts,” approved 16th March, 1848, provides in the 4th section as follows, to wit: “The said county courts shall have power to levy and collect a tax for county purposes upon all subjects of taxation in their respective counties on which a tax...