# Tiernan v. Rinker

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United States Supreme Court
102 U.S. 123
Tiernan v. Rinker
ERROR to the Supreme Court of the State of Texas.
A statute of Texas, entitled 'An Act regulating taxation,' approved June 3, 1873, enacts as follows:--
'SECT. 3. That there shall be levied on and collected from every person, firm, or association of persons, pursuing any of the following named occupations an annual tax (except when herein otherwise provided), on every such occupation or separate establishment, as follows: For selling spirituous, vinous, malt, and other intoxicating liquors, in quantities less than one quart, $200; in quantities of a quart and less than ten gallons, $100: Provided, that this section shall not be so construed as to include any wines or beer manufactured in this State, or when sold by druggists for medicinal purposes: And provided further, that this section shall not be so construed as to authorize druggists to sell spirituous or intoxicating liquors, except alcohol. For selling in quantities of ten gallons and over, $100.
'SECT. 4. That the county courts of the several counties of this State shall have the power of levying taxes equal to the one-half of the amount of the State tax herein levied, except as hereinbefore provided: And provided further, that any one wishing to pursue any of the vocations named in this act for a less period than one year may do so by paying a pro rata amount of such occupation for the period he may desire: Provided further, that no occupation license shall issue for a less period than three months: And provided further, that the receipt of the proper officer shall be prima facie evidence of the payment of such tax.'
In pursuance of the authority conferred by this statute, the county court of Galveston County, in March, 1876, levied a tax upon certain parties engaged in the occupations mentioned in the third section, equal to one-half the tax levied by the State.
Barney Tiernan and a number of others, who were the petitioners in the court below, are engaged in the county of Galveston in the occupation of 'selling spirituous, vinous, malt, and other intoxicating liquors,' some of them in quantities less than one quart, and others in quantities of one quart and less than ten gallons; and the wines and beers which they sell are not of the manufacture of the State. By the present suit against Rinker, the treasurer of that county, they seek to enjoin the enforcement of the tax against them, on the alleged ground that the statute is invalid in that it discriminates in favor of wines and beer manufactured in the State against those which are manufactured elsewhere. The District Court of the State sustained a demurrer to their petition and dismissed the case. The Supreme Court of the State affirmed the decision. The petitioners thereupon sued out this writ of error.
Mr. A. H. Willie for the plaintiffs in error.
The statute subjects to a tax persons engaged in the pursuit of a given occupation, which is defined to be the selling of spirituous, vinous, malt, and other intoxicating liquors.
The first proviso embraces the plaintiffs in error, as their occupation is that of selling vinous and malt liquors which are not manufactured in Texas, and of spirituous and other intoxicating liquors. It discriminates in favor of wines or beer manufactured in Texas, and against those liquors if they are the product of other States or of foreign nations. The statute is, therefore, a regulation of commerce and is repugnant to the Constitution. Welton v. State of Missouri, 91 U.S. 275.
The proviso is an essential part of the statute. Its office is to restrain the enacting clause and to except something which would otherwise have been within it, or, in some measure, to modify it. Wayman v. Southard, 10 Wheat. 1. The court can no more limit the legal effect of terms, because they are in a proviso, than it can qualify the terms of a private agreement, because they are in one part of the instrument instead of another. Dugan v. Bridge Company, 27 Pa. St. 310.
To strike out the proviso as unconstitutional, and yet sustain the statute as imposing the tax upon the sale of spirituous, vinous, malt, and other intoxicating liquors indifferently, would defeat its obvious intention, which is to encourage the manufacture of Texas wines and beer. Where a statute is clearly made up of parts, sections, or provisions, one part will not be held good and another bad, unless the respective parts are independent of each other. State v. Commissioners of Perry County, 5 Ohio St. 507; Potter's Dwarris, 249. The constitutional parts can stand only when, after rejecting the others, the object and effect of the law are not destroyed. State v. Estabrook, 3 Nev. 180. The whole must fall, if, after rejecting the unconstitutional parts, the remainder is incapable of being executed in accordance with the legislative intent. Cooley, Const. Lim. 178; Washington v. The State, 13 Ark. 763. Where the different provisions form inseparable parts of the same system, the whole is invalidated by the unconstitutionality of a part. People v. Detroit, 29 Mich. 108; Sedgwick, Stat. Law, 414, and cases cited.
No counsel appeared for the defendant in error.
Mr. JUSTICE FIELD, after stating the case, delivered the opinion of the court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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