Tarde v. Benseman

• Decision Date: 31 October 1868
• Citation: 31 Tex. 277
• Parties: VICTOR TARDE v. HERMANN BENSEMAN.
• Court: Texas Supreme Court

31 Tex. 277

VICTOR TARDE

v.HERMANN BENSEMAN.

Supreme Court of Texas.

October, 1868.

The assessor and collector of taxes of a county may sue in a qui tam action, as an informer, as well as another, and recover the penalties prescribed in the statute, “to be accounted for by him and paid into the state treasury.”Pas.Dig. arts. 5153, 5156.

There was no necessity why the judgment allowing a penalty for an occupation tax, without having paid the license tax, should direct one-half to be paid into the state treasury.But an order to pay into the county treasury was error.Pas.Dig. art. 5156.

As the statute provides that the suit may be brought before any court of competent jurisdiction, and the general jurisdiction of the district court extends to all cases of escheats and forfeiture, it had jurisdiction of an amount under $100.Pas.Dig. Const. art. IV, p. 57, sec. 10, note 182.

If a billiard table be kept for “occupation,” the occupation was subject to the license tax imposed by the statute; because those “pursuing any occupation, trade, or profession” are by the constitution subject to a license tax.Pas. Dig.p. 942, art. VII, sec. 27.

Trade or profession imports a profitable pursuit, and, if the billiard table was kept for amusement and not for profit, it was not subject to taxation.

The use for which a billiard table was kept ought to have been left to the jury.

APPEAL from Medina.The case was tried before Hon. E. F. BUCKNER, one of the district judges.

Benseman presented his petition to the district court, alleging that Tarde was keeping a billiard table, and had refused to pay the tax of fifty dollars, the license required by law.Wherefore he sues him for $100.The defendant pleaded to the jurisdiction because of the amount; he also demurred, and pleaded the general issue, and that the billiard table was kept for another person, and in a private room, and not for profit.

The motion to dismiss for want of jurisdiction was overruled.The plaintiff also demurred to the special pleading of the defendant, “for that he admits he keeps a billiard table, and only denies that he keeps the same for profit to himself, whereas the law gives the penalty for the mere keeping of the billiard table, without reference to its being kept for profit.”This demurrer was sustained and the special plea stricken out.The case was submitted to the jury without any proof whatever, and the court gave judgment for $100; $50 “to be paid to the county treasury.”[See the briefs for further facts.]

Geo. W. Paschal, for appellant.I.The questions are--1.As to jurisdiction; 2.As to overruling the defendant's demurrer; 3.As to sustaining the plaintiff's demurrer; 4.As to rendering judgment without proofs.

The act of 1858(O. & W. Dig. art. 1938) requires “a license tax of $50 of each and every person or firm keeping a billiard table, for each and every table so kept.”And the next section imposes a penalty of double the license tax, recoverable before any justice of the peace or court of competent jurisdiction, “one-half to be paid to the assessor and collector, which shall be accounted for by him and paid into the state treasury, as other license tax is required to be paid, and the other half to be paid to the informer.”Probably the district court had jurisdiction concurrent with the justice of the peace.But we think it equally clear that the suit should have been brought in the name of the state, as well for the use of the state as the informer.Such is the universal rule as to qui tam actions.They are not rights which belong to the informer, but to the state.

II.The sustaining the demurrer to the special plea was certainly erroneous.

The amended petition averred “That Tarde pursued the occupation of keeping a billiard table, and that on divers days, before the 28th June, 1859, he did pursue the occupation of keeping a billiard table without first having obtained a license therefor, and that he demanded and received from various persons certain sums of money for the use of his said billiard table.”“Wherefore a cause of action has accrued to plaintiff, and he prays judgment as in original petition.”

The special answer to this was, “That the defendant keeps for another person a private billiard table, in his private room, for his own amusement and for the amusement of his boarders;” and, further, defendant says “that neither he nor the owner makes any charge whatever for the use of said table, neither do they derive any profit from the same, directly nor indirectly.”

We have given the demurrer to this.It was certainly erroneously sustained.The mere ownership of a billiard table, or the storing of one in a private room, or the keeping there for amusement, and receiving no profit from it, cannot be what the statute intends.The keeping is classed with the ““occupations,” and, like all other intentions, it must be proved that the thing was kept as an occupation; that is, for the uses ordinarily understood, and which must have entered into the legislative mind.

III.The record and statement of facts show the extraordinary case of the demurrer to the special plea being sustained, and the case submitted on the plea of not guilty; and yet the court, without any other evidence than the special plea, found the defendant guilty, and mulcted him in the fine of $100.The court must have gone upon the notion that the demurrer to the petition admitted the facts, and therefore the proof of gravamen was unnecessary.But the demurrer did not admit the facts for the purposes of the trial, but only for the purpose of testing whether, admitting the case made by the petition to be true, the plaintiff had a good case in law.Chambers v. Miller and Wife, 7 Tex. 75.

E. B. Turner, Attorney General, for the appellee.I.Qui tam action, instituted by appellee, assessor and collector of Medina county, to recover the penalty denounced in art. 5156 Pas. Dig., for failing to take out license, etc.

Objection is made to the suit because brought by the person to whom part of the penalty goes as informer.This is the correct and proper practice.2 Bouv.LawDic. 415;Bradley v. Baldwin, 5 Conn. 288;Hickman v. Littlepage, 2 Dana, 344;Burly v. Burly, 6 N. H. 200;10 Wend. 97.

Plea to the jurisdiction, the penalty being $100.The district court had jurisdiction.

The cause was submitted to the judge, jury waived, and it appears from the record that the facts proved consisted in offering in evidence to the court...