Owens v. State

• Decision Date: 19 February 1908
• Citation: 112 S.W. 1075
• Parties: OWENS v. STATE.
• Court: Texas Court of Criminal Appeals

112 S.W. 1075

OWENS v. STATE.

Court of Criminal Appeals of Texas.

February 19, 1908.

Rehearing Denied June 13, 1908.

Appeal from Bexar County Court; Robt. B. Green, Judge.

M. F. Owens was convicted of engaging in the business of procuring assignments of unearned wages without having paid an occupation tax, and appeals. Reversed, with directions to dismiss.

Onion & Henry and T. J. Newton, for appellant. J. E. Yantis, Asst. Atty. Gen., for the State.

BROOKS, J.

An information was filed against appellant in the county court of Bexar county, Tex., on the 27th day of January, 1906, charging her with unlawfully engaging in the business and occupation of procuring assignments and transfers of wages not earned and not due and payable at the date of such assignment and transfer, without having first paid to the state of Texas the sum of $5,000 as an occupation tax. The information alleges that appellant had taken and purchased more than three assignments of unearned wages not due and payable during the month of January, 1906, and further alleges that said purchases and transfers of wages were not for necessaries, or for any purpose legalized under the act of April 15, 1905. In the trial of the case a jury was waived and the facts support the allegations in the information.

Appellant's first insistence is that Acts 29th Leg. p. 217, c. 111, which imposes said tax, is unconstitutional, because said act exempts from its provisions any person, firm, or corporation taking, accepting, purchasing, or procuring such assignments or transfers to pay or secure the purchase price for the necessaries of life for the family of the assignor, or of the purchase price of a homestead of the assignor, or of improvements or repairs thereon, or for any article necessary for the use of the assignor in the pursuit of his employment, or for the payment of life or accident insurance premiums, dues, or assessments, where such assignments or transfers are made directly to the person, firm, or corporation from whom such purchases are made, or to whom such premiums, dues, or assessments are payable; the exception, as appellant insists, from its said provisions of said persons, firms, or corporations, constituting a privileged class, being grossly discriminative, and not an equal and uniform tax in violation of article 8, §§ 1 and 2, of the Constitution of the state of Texas. Section 1 of said act reads as follows: "Be it enacted by the Legislature of the state of Texas: There is hereby imposed an annual occupation tax of five thousand dollars for state purposes upon every person who, in his own behalf or as agent for another, shall engage in the business of taking, purchasing or procuring assignments or transfers of wages not earned or not due and payable at the date of such assignment or transfer, whether such assignment or transfer is made absolutely, conditionally or as security for each separate county in which such person may engage in such business, either in his own behalf or as agent of another." Section 2 provides that the commissioners' court of each county shall have the right to levy one-half of the state tax above stated and authorizes incorporated cities or towns to also levy one-half of the state tax. Section 3 reads as follows: "Any person shall be deemed to be engaged in the business referred to in section 1 of this act, who shall take, accept, purchase or procure, directly or indirectly, either in his own behalf or as the agent of another, more than three such assignments or transfers during any calendar month: Provided, that this act shall not apply to or impose a tax upon any person, firm or corporation, taking, accepting, purchasing or procuring such assignments or transfers to pay or secure the purchase price of the necessaries of life for the family of the assignor or the purchase price of a homestead of the assignor, or of improvements or repairs thereon, or for any article necessary for the use of the assignor in the pursuit of his employment, or for the payment of life or accident insurance premiums, dues or assessments where such assignments or transfers are made directly to the person, firm or corporation from whom such purchases are made or to whom such premiums, dues or assessments are payable, or where such assignment made for any such purposes shall not be taken or accepted at a discount."

The first ground upon which appellant insists that said act is unconstitutional is that the proviso in same constitutes a privileged class, being grossly discriminative, and not an equal and uniform tax, and in violation of article 8, §§ 1 and 2, of the Constitution of the state of Texas. Section 1, art. 8, of the Constitution reads as follows: "Taxes shall be equal and uniform." Section 2, art. 8, of the Constitution states that "all occupation taxes shall be equal and uniform upon the same class of subjects within the limits of the authority levying the tax." It will be seen that the proviso of the act above cited exempts from its provisions all dealers in the necessaries of life, the seller of a homestead, or dealers in the necessaries for the use of the assignor in his employment, all persons...