Pullman P. C. Co. v. State

• Decision Date: 22 May 1885
• Docket Number: Case No. 5147.
• Citation: 64 Tex. 274
• Parties: THE PULLMAN P. C. CO. v. THE STATE OF TEXAS.
• Court: Texas Supreme Court

64 Tex. 274

THE PULLMAN P. C. CO.

v.THE STATE OF TEXAS.

Case No. 5147.

Supreme Court of Texas.

May 22, 1885.

APPEAL from Bexar. Tried below before the Hon. G. H. Noonan.

Mason & Carr, for appellant, cited: Const. of Texas, art. 7, sec. 2; Pennito v. Petition, 7 Penn., 174;Augusta v. North, 57 Me., 392; Mitchell v. Board, 7 N. C., 400; McQuilker v. Doe, 8 Black, 581.

J. H. McLeary and John D. Templeton, for the state, cited: Cooley on Taxation, 128; Sacramento v. Crocker, 16 Cal., 120.

STAYTON, ASSOCIATE JUSTICE.

The general nature and result of this action is thus correctly stated by counsel:

“This suit is brought by the state of Texas, by its attorney-general, charging that appellant is pursuing the occupation of owning and running on railroads in Texas, palace, sleeping and dining-room cars; that on and after the 24th day of March, 1881, appellant, for the privilege of pursuing said occupation, became liable and indebted to appellee in the sum of $2 for each mile of railroad in the state of Texas over which appellant's said cars run, as an annual occupation tax--said cars not being owned by any of the railroad companies who own the railroads, claiming in the aggregate $5,000.

Defendant pleaded general and special demurrer, general denial, unconstitutionality of the law authorizing the collection of the tax sued for, and repeal of the law before the collection of the t??ax, and that defendant's cars were interstate and not liable to occupation tax.

The cause was submitted to the district judge without jury. The trial resulted in a judgment for plaintiff in the sum of $4,302.”

There are many assignments of error, some of which do not properly arise upon the record before us, and many of the others refer to matters not deemed important or necessary to be considered.

The first essential inquiry which arises is: Is the act under which the tax is claimed invalid, in so far as it affects the question involved in this case?

The tax in question is claimed under that part of the act of March 24, 1881, which is as follows:

“From every person, firm or association of persons owning or running any palace, sleeping or dining-room cars not owned by the railway company, on any railroad in this state, there shall be collected an annual tax of $2 per mile for each and every mile of any and all railroads in this state over which such cars may run. The tax herein due shall be paid by said person, firm or association of persons, to the comptroller of public accounts, whose receipt, under seal, shall be issued to the company, person or firm, certified copies of which shall be evidence of the payment of state tax; provided, that nothing herein contained shall authorize the levy of any county or municipal tax upon such person, firm or association of persons.” Gen. Laws 1881, p. 58.

The tax contemplated by this part of the act is not a tax upon property, which, under the constitution, must be taxed in proportion to its value; nor is it a tax upon persons, which must be uniform.

It is a tax imposed on a named business which may be carried on by natural persons or by corporations within this state on property belonging to others; and such as is designated in the constitution an “occupation tax.”

The act applies to three classes of natural persons and corporations, distinguished by their different degrees of ownership or relationship to the entire property with which the business is conducted.

1st. It applies to the owners of such cars as are named, who run them, or permit them to be run, on railways within this state not belonging to the owners of such cars.

2d. It applies to such persons or corporations as do not have the full ownership of such cars, who, with right or without right to use them as against the owners, do run them on railways within this state, such persons not being the owners of the railway on which they are run.

Upon these two classes the tax is imposed.

3d. It applies to persons or corporations who own or run such cars on railways belonging to themselves, and upon such imposes no tax whatever on the business.

The pursuit of the business, with the cars described,??constitutes the occupation taxed, and the ownership is not made an element by which the amount of the tax is determined; for the tax imposed on the owner of such cars who runs them is no more nor less than the tax imposed on one who runs such cars not being their owner.

The first and second classes referred to are evidently embraced for the purpose of including all who pursue business with such cars, except the third class, which is not subjected to the burden imposed on the others.

The tax authorized by the act is essentially an occupation tax, in which the ownership of the cars is of no importance, except as it may fix the person on whom the liability is imposed.

The constitution declares that “all occupation taxes shall be equal and uniform upon the same class of subjects within the limits of the authority levying the tax.” Const., art. 8, sec. 5.

Under the act a railway company is not made liable for the tax if it uses on its own road its own or the cars of others, in every respect the same as those named in the act, and used in the same way and business, with like charges for the use of such cars, in addition to the ordinary and lawful charges for carriage, as are made by persons or corporations owning or running such cars on railways not their own.

The inquiry arises whether a law which thus imposes a tax on others than railway companies, for the pursuit of this business, while it exempts railway companies therefrom, does not violate the provisions of the constitution referred to.

That the tax contemplated by the act is an occupation tax is too clear for discussion.

Does the business done by persons or corporations owning such cars and running them on the roads of others, or the business done by persons not owning but running such cars on the roads of others, and business done by railway companies on their own roads with such cars, embrace the same class of subjects of taxation?

The subject of taxation is the thing or business done; the occupation followed for and on account of which the tax is imposed on persons and corporations that pursue it.

The business or occupation of the owners of such cars running them on the roads of others, and of those who are not owners but run such cars on the roads of others, in so far as...