Tex. Banking & Ins. Co. v. State

• Decision Date: 01 January 1874
• Citation: 42 Tex. 636
• Court: Texas Supreme Court
• Parties: THE TEXAS BANKING & INSURANCE CO. v. THE STATE.

42 Tex. 636

THE TEXAS BANKING & INSURANCE CO.

v.THE STATE.

Supreme Court of Texas.

1874.

MAY 23, 1874, proceedings were taken in the name of the State by suit against the Texas Banking and Insurance Company, a corporation having its principal office in the city of Galveston, and pursuing the business and occupation of dealing in stocks and bills of exchange in the city of Galveston, a city containing more than five thousand inhabitants.

It was alleged that defendant pursued its business or occupation in the city of Galveston continuously from October 1, 1872, to June 3, 1873, upon which it was claimed that one hundred and fifty-six dollars and interest from October 1, 1872, was due as an occupation tax, under an Act entitled “An Act to give effect to the several provisions of the Constitution concerning taxes,” approved April 21, 1871; that the occupation tax imposed thereby was two hundred and fifty dollars per annum in said city, it having over five thousand inhabitants.

The defendant urged that the law was repealed, was unconstitutional, and plead general denial.

Jury was waived and judgment rendered for plaintiff, and defendant appealed.

On the trial, plaintiff introduced a witness who was not a justice of the peace nor an assessor of taxes, and who testified that defendant, during the time charged in the petition, engaged in the occupation charged in the petition, in the city of Galveston.

It was proved that the city of Galveston, at the 1st October, 1872, contained more than five thousand inhabitants, and was situated in Galveston county.

Plaintiff did not offer in evidence any assessment roll made out by any justice of the peace as an assessor of taxes, and containing the name and occupation of defendant, and the amount of his occupation tax, or the names and occupations of any persons pursuing occupations, and the amount of their tax, and did not account for the absence of such assessment roll; no assessment of occupation taxes, nor of persons pursuing occupations in Galveston county, ever having been made by the assessor of taxes.

L. E. Trezevant, for appellant.

Walter Gresham, for State.

MOORE, J.

The first ground urged for a reversal of the judgment which need be considered, is, that the tax for which appellant is sued has never been assessed against him by a justice of the peace.

It is undoubtedly a pre-requisite to the collection of an ad valorem tax upon property, that it shall be assessed by the justice of the precinct in which it belongs. But the tax for which this suit is brought is not a tax upon property, which the Constitution (Article 12, Section 28) says shall be assessed by justices of the peace, under such laws as shall be provided and enacted by the Legislature. It is a direct, specific tax upon the person pursuing the occupation, trade, or business in which it is alleged the party charged with it is engaged, and by reason of which the tax is demanded. The assessment of such a tax by a justice of the peace is required neither by the letter nor spirit of the Constitution. The main and essential object intended to be secured by the constitutional requirement that “the justices of the peace shall assess the property in their respective precincts,” is, unquestionably, to ascertain the value of the property liable for the tax, and to fix and determine the just proportion of it which should be demanded and collected from the property or its owner. This purpose, evidently, has no application to a specific tax upon an occupation, trade, or profession. The amount of liability of the parties chargeable with it does not depend upon an apportionment. Its limit is fixed and determined by the law making the levy. It can neither be increased nor diminished by an assessment. If, indeed, such a tax is in any sense the subject of assessment, certainly it is not so within the meaning of the Constitution providing for the assessment of property by justices of the peace. All that could be done in any way partaking of the nature of an assessment, would be the entry of the parties' names and the amount of the levy upon a tax roll. This would be to make a list of parties...