Preston v. Finley

• Decision Date: 09 March 1896
• Citation: 72 F. 850
• Parties: PRESTON v. FINLEY, Comptroller.
• Court: U.S. District Court — Western District of Texas

72 F. 850

PRESTON v. FINLEY, Comptroller.

United States Circuit Court, W.D. Texas.

March 9, 1896

This bill, duly sworn to by H. L. Strohm, Esq., one of the attorneys of complainant, was brought by Henry L. Preston, a citizen of the state of Missouri, against the comptroller of public accounts of this state, to restrain the collection of an occupation tax. The question now before the court arises upon a motion made by the complainant for a temporary injunction. The allegations of the bill, material to be considered, are the following:

'Your orator, Henry L. Preston, is now, and for more than five years last past has been, engaged in the newspaper business at Kansas City, Missouri, as editor and publisher of the Kansas City Sunday Sun, a weekly newspaper wholly prepared edited, and published at Kansas City, in the state of Missouri. That the said newspaper, the Kansas City Sunday Sun, has been duly entered by the post-office department for transmission through the United States mails as second-class matter. and is so transported by the United States government from the state of Missouri into and through the various states of the United States, including the state of Texas. That each separate copy of said newspaper, before being mailed from the state of Missouri is separately folded, and constitutes a separate, original and complete package in itself, and is so delivered and sold by your orator through his various agents in the state of Texas. That the monthly shipments of your orator's said newspaper from the state of Missouri into the state of Texas exceed fifty thousand copies, of a total value of over two thousand five hundred dollars. That said shipments are made by your said orator to one or more persons in each of the several counties of the state of Texas, who are the duly employed and authorized agents for your said orator, and, as such, distribute and sell your orator's said newspaper to the numerous patrons within the state of Texas. Your orator further says that the defendant R. W. Finley, in his official capacity as comptroller of public accounts of the state of Texas, has notified each tax collector throughout the state of Texas that there is a special occupation tax of five hundred dollars per annum, in each county, to be levied upon every person, firm, or association of persons selling or offering for sale the Kansas City Sunday Sun, and that he is about to transmit to each tax collector of the state of Texas receipts executed by him for the immediate collection of said alleged occupation tax, in accordance with article 4668c, Sayles' Civ. St. Tex., and that he threatens and is about to enforce and compel the collection of said tax against each of the agents of your orator; that said threatened act of said defendant, if performed or attempted to be performed, will occasion a multiplicity of suits throughout the state of Texas, and will do your orator an irreparable injury, for which he has no sufficient or adequate remedy at law. Your orator further says that the threatened act of the defendant herein complained of is founded upon an act of the Twenty-Fourth legislature of the state of Texas, entitled 'An act to provide for levying a tax on the occupation of selling or offering for sale the Sunday Sun, the Kansas City Sunday Sun, or other publications of like character, whether illustrated or not,' and is in the words and figures following, to wit:

''Section 1. Be it enacted by the legislature of the state of Texas. There shall be levied on and collected from every person, firm or association of persons selling or offering for sale, the 'Sunday Sun,' the 'Kansas City Sunday Sun,' or other publications of like character, whether illustrated or not, the sum of five hundred dollars in each county in which sale may be made or offered to be made.

"Sec. 2. The near approach of the close of the present session of the legislature and the large number of bills now pending on the calendar, and the fact that the occupation herein taxed is not now taxed by law, creates an emergency and a public necessity exists that the constitutional rule requiring bills to be read on three several days be suspended, and that this act take effect and be in force from and after its passage, and it is so enacted.''

The bill then alleges that the act of the legislature is unconstitutional and void, and states at length the reason therefor, which may be summarized as follows:

First. Because it is in violation of section 8, art. 1, of the state constitution, in that it curtails the liberty of the press. Second. The act amounts in fact to an attempt at an unauthorized police regulation, and creates a prohibitory tax upon complainant's newspaper, and is not a bona fide tax for any purpose. Third. Because the subject of the act is not expressed in its title, and the act is therefore repugnant to section 35, art. 3, of the state constitution. Fourth. Because it is in violation of clause 3, Sec. 8, art. 1, of the constitution of the United States, in that it attempts to regulate commerce among the several states. Fifth. It conflicts with clause 2, Sec. 10, art. 1, of the constitution of the United States, in that it lays an impost or duty on imports without the consent of congress. Sixth. Because the act of the legislature is so indefinitely and unintelligibly framed, and of such doubtful construction, that it cannot be properly understood what character of publication it is intended to tax, or what particular class of persons it is designed to effect, etc. Seventh. Because it is special legislation, and it is calculated to affect only the newspaper of complainant, and deprive him of the legal use of his property without just cause, and without due process of law.

An injunction is prayed to enjoin the comptroller, his clerks, agents, etc., from doing any act tending to collect, or enforce the collection of, the tax. Attached to the motion are the following exhibits:

'Exhibit A.

'State of Missouri, Jackson County-- ss.: Henry L. Preston, the complainant herein, being first duly sworn, on his oath says that he has read the complainant's bill herein filed, and that, of his own knowledge, the allegations therein are true, except as to those stated on information and belief, and those affiant believes to be true. Affiant further says that according to his best information and belief, and so alleges the fact to be, there are 226 organized counties in the state of Texas, a list of the names of which, with the names of each county seat, is hereto attached, and marked 'Exhibit B.' That affiant attaches hereto, and marks 'Exhibit C,' a true copy of the entry of the Kansas City Sunday Sun at the post office at Kansas City, Missouri, to which he has added an affidavit of the postmaster at Kansas City, Missouri, establishing the fact that said certificate is in full force and effect. Affiant further says that Exhibit D, hereto, is a true copy of the Kansas City Sunday Sun of a date prior to the passage of chapter 50 of the Acts of the 24th legislature, and that Exhibit E, hereto attached, is a true copy of the Kansas City Sunday Sun of a date subsequent to the passage of said act. Further, affiant saith not.

'Henry L. Preston,

'Subscribed and sworn to before me by said Henry L. Preston this Nov. 20th, 1895. My commission expires April 13th, 1899.

'(Seal.) Ida E. Snow,

'Notary Public for Jackson County, Missouri.'

'Exhibit C.

'State of Missouri, County of Jackson-- ss.: Homer Reed, being duly sworn, says that he is the postmaster of Kansas City, Missouri; that the Kansas City Sunday Sun is a newspaper published at Kansas City, Missouri, and is regularly admitted for transmission through the United States mails as second-class mail matter; and that the certificate, a copy of which is hereto attached, is in full force and effect.

Homer Reed, 'Postmaster Kansas City, Missouri.

'Subscribed and sworn to before me by said affiant this 20th day of November, 1895.

Ida E. Snow, Notary Public.

'My commission expires April 13th, '99. (Seal.)

'(3249)

'Certificate of Entry of Publication as Second-Class Matter.

'Post Office of Kansas City, Mo., Sept. 17th, 1894.

'I hereby certify that the Kansas City Sunday Sun, a weekly newspaper published at this place, has been determined by the third assistant postmaster general to be a publication entitled to admission in the mails at the pound rate of postage, and entry of it as such is accordingly made upon the books of this office. Valid while the character of the publication remains unchanged.

'Homer Reed, Postmaster, 'By Chas. N. Seidlitz, Asst. P.M.'

Attached as exhibits to the bill are also several copies of complainant's newspaper, the Kansas City Sunday Sun.

The attorney general, appearing in behalf of the comptroller, interposes demurrers setting forth the following objections to the bill:

'First. That the complainant hath not in said bill made or stated such a cause as doth or ought to entitle him to any such relief as is thereby sought and prayed for against this defendant. Second. If the statute of the state imposing an occupation tax on the business of selling the Kansas City Sunday Sun is void, the courts of law afford complainant an adequate and complete remedy. Third. That complainant's bill fails to show that the Kansas City Sunday Sun is such a newspaper as, under the laws of this state and of the United States, can be circulated through the mails, or the circulation of which in this state could not be prevented by this state, in a reasonable exercise of its police powers. Fourth. The complainant's bill does not show that this defendant has any authority to prosecute or force the collection of any of the occupation tax alleged to be due but, on the...