Yellowstone Kit v. Wood,
| Decision Date | 18 December 1897 |
| Citation | 43 S.W. 1068 |
| Parties | YELLOWSTONE KIT v. WOOD, Tax Collector. |
| Court | Texas Court of Appeals |
Appeal from district court, Hill county; J. M. Hall, Judge.
Action by Yellowstone Kit against W. H. Wood, tax collector of Hill county, for a writ of mandamus to compel the issuance of a license to pursue the occupation of a merchant druggist, and to restrain the collector from demanding of him an occupation tax as a traveling person selling patent or other medicines. From a judgment denying the relief prayed, plaintiff appeals. Affirmed.
Bowlin & Scott and Wilson Gregg, for appellant. Short & Walker, for appellee.
This action was brought by appellant against W. H. Wood, tax collector of Hill county, Tex., seeking a writ of mandamus to compel said Wood to issue him a license to pursue the occupation of a merchant druggist, and to restrain said Wood from demanding of him an occupation tax as a traveling person selling patent or other medicines. The evidence shows that said tax collector never refused to issue to appellant a license as a merchant druggist; that, when appellant applied to him for a license as a merchant druggist, he told appellant that he was ready and willing to issue same, but that appellant was liable to pay the tax imposed on traveling persons selling patent or other medicines, and, if appellant did not pay such tax he would institute criminal proceedings against him for failure to so do. The tax collector not having refused to issue to appellant a license as a merchant druggist, but being ready and willing to do so, there was no basis for the issuance of the writ of mandamus in this particular. We also think that appellant was not entitled to the writ to restrain appellee from demanding of him an occupation tax as a traveling person selling patent or other medicines. The function of a writ of mandamus is to compel the doing of an act. It will not issue to restrain the commission of a tort, or an abuse of office. Merrill, Mand. § 43. It "runs to inferior tribunals, corporations, or persons, to compel the performance of an act which the law especially enjoins as a duty resulting from an office, trust, or situation." Id. § 1. Thus, it will be seen that the writ will not lie to prohibit the tax collector from demanding of appellant an occupation tax as a traveling person selling patent or other medicines; nor will it lie to restrain the tax collector from instituting a criminal prosecution against appellant for...
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State v. Wood
...in Crighton v. Dahmer, 70 Miss. 602, 13 South. 237; Ex parte Sawyer, 124 U. S. 200, 8 Sup. Ct. 482, 31 L. Ed. 402; Yellowstone Kit v. Wood (Tex. Civ. App.) 43 S. W. 1068; and Machine Co. v. Fletcher, 44 Ark. 139, — the prosecuting or circuit attorneys were not made parties to enjoin the pro......
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...no property rights are involved, the injunction will not be granted. Among other cases cited by Cyc. is that of Yellowstone Kit v. Wood, 18 Tex. Civ. App. 683, 43 S. W. 1068, an opinion rendered by our Court of Civil Appeals at Dallas. A license is in no sense property or contract. It is a ......
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