The weekly democratic statesman. [volume] (Austin, Tex.) 1871-1883, 1881-06-30
Department Notes.


To Messrs. L. C. Michael, Leon Blum and j. f.
Wallis, Galveston, Texas;
Gentlemen-Your communication OF the
21st ultimo was duly received, inclosing
the professional opinion OF Hon. w. Z.
Ballinger on what Is known as the
.Drummer Tar, :" with the request that
the Comptroller would take into consid-
Grafton the view therein presented upon
a review of the ruling adopted in the col
lection of said tax.
Respect for the community OF mer-
chants OF the city of Galveston, and of
the country at large, no less than sense
Of official duty induces compliance with
your request. .-.
i transmit herewith a copy OF the act
Of 1881, with the several sections therein
that are discussed. marked for reference.
The act approved April %, 1879, pro-
vided ''That there should be levied on
and collected From every COM
mereial traveller, drummer, salesman or
solicitor of trade by sample or otherwise,
an annual occupation tax of $500; pro
uid6d. that such person shall not be re-
quired TO pay the same IL the person,
firm or association ofpersons represented
by him or for whom he is soliciting trade,
shall have paid n merchants occu-
patton tax as provided In this section
OF $500, and any person, firm. or assocla-
and solicit trade by such commercial
travellers shall have the right TO do so by
paying to the comptroller OF the state
state tax OF 500, payable annually In adj
vance. and such person. firm or associa-
ton of persons paying such tax shall be
\ empt from the payment OF every other
state tax as n merchant. and, provided
further, that the tax herein required
to be paid by such commercial traveller,
drummer, salesman or solicitor, shall be
paid by such commercial traveller, drum
mer, salesman, or solicitor to the
comptroller OF public accounts,
whose receipt under seal shall be evil
dencc OF the payment of said tax"
The effect OF the first proviso, as con-
strued by the department, was to exempt
from the occupation tax such drummers
as represented merchantst who had paid
to the comptroller an annual merchants
tax of $500, and to extend to all persons.
firms, or association of persons whether
doing business In the state out OF It
the privilege of paying such tax and
| thereby securing such Incidental privil-
| eyes as the law granted, that IL to say. so
| long as the law remained in force-drum-
mers representing such persons or firms,
were exempt from the provisions OF the
occupation taxlnw.
I In such case, a .'merchants's tax re.
eeipt" was Issued to the person or firm
1
| tive was given evidence OF such payment
| to protect him from annoyance and as q
matter OF information to those officers
| charged with the enforcement of the laws
Such representation held under the law
neither tax receipt nor a license, but
simply evidence that under the law he
was not personally subject to the drum
mer's tax. The privilege was annexed
| to and inseparable from the receipt held
| by the merchant or person who had paid
| the tax. BY the act approved March End
| 1881, II is provided, That there shall be
| levied on and collected . =. From
| every commercial traveller, drummer
salesman or solicitor OF trade by sample oil
otherwise, an annual occupation tax oil
| $50.
| Propidsd, That the tax herein required
| to be paid by such commercial traveller,
| drummer, salesman or solicitor, shall be
paid to the comptroller of public accounts
| whose receipt, under seal, shall be eyi.
dence of the payment OF such tax; and
| provided further, that no county, city oil
| town shall levy or collect any occupation
| tax upon such commercial traveller, drum
mer, salesman or solicitor; provided that
nothing herein contained shall apply tC
/ any one soliciting subscriptions for re
| ligious, literary or historical books, oil
maps, or to persons soliciting for nurse
ries provided further. that every com
Il
| solicitor of trade before he solicit:
for orders or makes any sale of any
article whatsoever in any county of this
state, shall filein the county clerks Office
of such county the comptroller's receip
for the occupation tax herein prescribed
and the clerk shall Immediately RECORD
each receipt and return the same to sucf
commercial traveller, drummer, salesman
or solicitor of trade, on his payment o
| fee oftwenty-five cents therefor, and am
| commercial traveller. drummer. salesman
or solicitor of trade who shall solicit order
or make any sales in any county in thi
state. without first having the receipt o
the Comptroller for his occupation tax
| duly recorded Us herein prescribed, shall
be deemed guilty of a misdemeanor anC
fined in any sum not less than twenty-five
nor more than one hundred dollars.
IL Is not contended in the. opinion sub
mitted that the Legislature did not have
the power to revoke or anpul any or all o
the privileges secured under the provi
sions of the old law by the payment o
the tax, aud the only question TO be con
\ sidered is: "Did they so dOf'
Ia the act last cited (of March "a, 1881
Il rs the following proviso, "prorided fnrthe
ltIiat the payment of the tax heretofor,
imposed by law shall not authorize an.
person or firm TO pursue any occupation
upon which tax is imposed by this act
except on compliance with the provision
OF this act, and such persons or firms shal
have credit on the amount already pai'
by him or them on so much of the tern
paid for as shall n OF have expired at tn
time this act shall take effect" This pro
yiso, in my opinion, furnishes q clew an,
definite rule for the guidance OF this de
partment, No license issued under tn
provisions of any prior law is continue,
Hin force, but the persons or firms holdinI
such license or receipt is entitled to
credit for the unexpired balance, and b.
the express terms of the law, n
person is now entitled to pursu
any taxable occupation without havinI
in his possession evidence that he ha
l complied with the law now in force In re
lation to such occupation. The merchan
who paid his occupation tax Is entitle'
l to q credit for any unexpireds balance oil
his taxes, as IA merchant under the new
law, the drummer who paid the drum
mers is entitled to the unexpired balanc
IL he complies with other provisions o
the new law; and neither the merchants
or drummer would be so entitled to sucl
credit, unless tbs law so provides. Tn
special privilege growing out of the oil
merchants license ended with the oil
law, which gave IL being, and is no
known 10 or recognized by the law nov
in force. That this construction shout,
obtain, Is clear from there being q savinj
cause las quoted above) In the re
pealing statutes II the licenses Is
sued and the privileges granted undo
the old. law would, as matter of RICH
and by virtue Of their own strength, h0l
| good for the time issued, IL would be dill
iicult to perceive reason for saVln
clause. and, IL would do violence to
plain and well known rule of construC
ton, to suppose that the Legislature ha
inserted in the body of the tax law,
. | vroxftotnn xuhnllv nunaQQaaarv
That the legislature considered such
saving clause necessary is evident fror
the fact that IL has uniformly been insert
ed in the laws upon this subject.
The act of 1878, levping Occupation
taxes contains the following; Y-f.ty T
Section 6@That all licenses taken on
which have not expired at the date of til
passage Of this act. shall avail the party
whom the same was granted for the iu
time for which such licensewas issued ,
(Gen. Laws 1878, p 20J.) ,.
The act of 1876 provided as follows
Section b-'That any license taken on
which has not expired at the date of thi
act taking effect, shall avail the party
whom the same was granted for the TN
zine for which such license was issued. >
! (Gen. Laws 1876, p, a45.)
The act of 1879 contained a provisio
similar to that In the law no,
In force quoted above); and 4
the act approved March III, 1881, nxin
an occupation tax upon the sale Of spirit
II Gus, yinous and malt liquors, there Is
special license saving to the persons hold
licenses under the 'bell.punch law" al
the rights, privileges and immunitie
granted by that law. (Gen, Laws. 1881
p. Al From the foregoing il will be pei
ceived that in each instance the legfsls
ture has clearly provided just how faI
and In what manner. payment made IN
der the repealed law shall inure TO tn
| henefit of the person making such nav