McMeans v. Finley

• Decision Date: 24 October 1895
• Citation: 32 S.W. 524
• Parties: McMEANS, Tax Collector, v. FINLEY, Comptroller. BYROM, Tax Collector, v. SAME.
• Court: Texas Supreme Court

32 S.W. 524

McMEANS, Tax Collector, v. FINLEY, Comptroller.

BYROM, Tax Collector, v. SAME.

Supreme Court of Texas.

October 24, 1895.

Petitions by H. A. McMeans and R. D. Byrom, tax collectors, respectively, against R. W. Finley, comptroller, for writs of mandamus to compel defendant to issue licenses for prize fights. Writs denied.

Warren W. Moore, for petitioner McMeans. J. W. Parker, Robt. A. John, and West & Cochran, for petitioner Byrom. M. M. Crane, Atty. Gen., and Hogg & Robertson, for respondent.

GAINES, C. J.

These cases present substantially the same questions, and will be disposed of in the same opinion. They proceed upon the theory that article 5049 of the Revised Civil Statutes, adopted by the present legislature at its regular session, places a tax upon prize fighting, and licenses it as an occupation. The statutes make it the duty of the tax collector of each county to issue a license for each occupation upon which a tax is levied, upon the application of any person desiring to pursue such occupation, and upon his paying the tax levied thereon; but he is prohibited from issuing such license, except upon a blank furnished by the comptroller for that purpose. It is the duty of the comptroller to furnish him with the blanks, and it would seem that it is his right to demand the performance of that duty, and, upon the comptroller's refusal to comply, to compel such performance by the writ of mandamus.

In the first case the tax collector of Hays county alleges that he has demanded blank licenses for prize fights of the respondent, as comptroller of the state, and that the latter has refused to furnish them. He prays that the latter may be compelled to comply with his demand. In the second case the tax collector of Williamson county alleges that application has been made to him for a license for a prize fight, and that the state and county taxes have been tendered by the applicant; that he has demanded of the comptroller the proper blanks; and that the demand has been refused. He, also, prays for a peremptory writ of mandamus to compel the officer to furnish the blanks. The comptroller in neither case denies the facts alleged, but claims there is no law licensing prize fighting in this state.

Since these suits were instituted the governor of the state has convened the legislature for the purpose of passing a law prohibiting prize fighting, and making it a penal offense. The legislature has met in pursuance of that call, and has passed an act intended to effectuate that object, which, if valid, took effect from its passage. It is conceded that, if this act be operative, the writ of mandamus must be refused in these cases. But it is claimed on behalf of the petitioners for the respective writs that the act is in violation of section 35 of article 3 of the constitution, and is therefore void. This presents the first question for our determination. The constitutional requirement in question reads as follows: "No bill (except general appropriation bills, which may embrace the general subjects and accounts for and on account of which, moneys are appropriated), shall contain more than one subject, which shall be expressed in its title. But if any subject shall be embraced in an act, which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be so expressed." Omitting the emergency clause, inserted for the purpose of giving it immediate effect, the statute under consideration reads as follows:

"An act to prohibit prize fighting and pugilism, and fights between men and animals, and to provide penalties therefor, and to repeal all laws in conflict therewith.

"Section 1. Be it enacted by the legislature of the state of Texas: That any person who shall voluntarily engage in a pugilistic encounter between man and man, or a fight between a man and a bull or any other animal, for money or other thing of value, or for any championship, or upon the result of which any money or any thing of value is bet or wagered, or to see which any admission fee is charged, either directly or indirectly, shall be deemed guilty of a felony, and upon conviction shall be punished by...