Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1889-02-01

follow this occupation must pay in ad-
vance for the term OF one year as con-
dition precedent TO the right to pursue it,
while upon all others, they are permitted
to pay quarterly. This being required of
all of the same class alike, the constitu-
ton is by no means infringed. And III
addition to this the requirement is
founded in the highest considerations of
public policy and common sense.
1t is insisted that the tax is unequal
and not uniform because a person pur-
suing the occupation III some counties
would not be required 10 pay as much as
in others; that the cities and counties are
not. required TO assess this tax, and if
they do, they may assess it at greater
or less sum in the different cities and
counties, etc And, as the penalty de-
ponds upon the amount assessed, it would
not be the same, it would not be uniform
over the state. -
This is evidently correct, but consti-
tutes no objection to the law. In the
Banking and Ms. Co. VS. State, ~ Tex.
6367 an analogous question arose. The
state sued the company for occupation
tax. The company interposed consti-
tutional objection TO the tax, contending
that it was not equal and uniform
throughout the state. The statute pro-
Yided that those pursuing such Occupa-
ton should pay tax of $3.50 if the bust
ness was carried on in city or town eX-
ceeding 5000 in population. Galveston,
the city in which the occupation was fol-
lowed, contained a population greater
than 5000. The act also provided that if
the population was less, tax of $50
should be paid.
The supreme court (opinion by Moore,
T y hot hot 70
uniform; and this opinion is approved in
Blessing VS.. City of Galveston Id. GAL
These opinions were rendered under the
preceding constitution which contained
this provision: "'TaXation shall be equal
and uniform throughout the state. - The
present constitution settles this question
beyond all controversy, there being
special provision relative to occupation
taxes, which is, call occupation taxes
shall be equal and uniform upon the
same class of subjects within the limits
of the authority levying the tax. The
limits of the states legislative authority
is the whole state. That of the cOun-
ty, city or town is their respective boun-
diaries. That the state tax is equal
and uniform is not questioned here.
Now if the tax imposed by the counties,
cities, and towns are equal within their
limits, the imposition of such tax would
not be obnoxious to the constitution, but
would be in exact accord with the above
provisions; though in other counties ,cities
or towns, the tax may not be the same.
So far as the Fourteenth amendment of
the constitution of the United States is
concerned, 1t certainly was not intended
to prohibit the states from enacting laws
regulating the traffic in these liquors so
long as they do not abridge the privileges
or immunities of citizens of the United
States or deprive any person of life, lib
erty or property without due process of
law, or deny to any person within its
jurisdiction the equal protection of laws.
These acts do none of these things. If
they do then the state would
not have the right to tax
one occupation greater than another; nor
to require license or bond as conditions
precedent to the pursuing of any occu-
patton unless such requirements were
made of persons proposing TO pursue any
occupation. If this be the proper con-
struction of the amendment, then the
text writer's and supreme courts and leg
islatures of most if not all the states have
misconstrued it: for, acts with like pro-
visions in substance have been passed by
nearly if not all the states and held by
the highest judicial authority thereof.
Nor can case be found,
we assert, holding that because of
such provisions in an act to-wit, requir-
ing payment in advance for one year,
etc.-such payment not being required
for all occupations is an infringement of
the fourteenth amendment to the Federal
constitution.
Third ground: ''That the Indictment
is defective, because it does not aIlege
that defendant had not procured a
license before the finding of the indict-
ment. -
The Indictment alleges every element
of the offense. This is no exception or
provision in the enacting clause; it is
matter contained i'll article 1l2 of the
code, and is defensive in its character,
hence the accused must bring it forward
or If must appear Gu the trial that the
taxes have been paid, this being ques-
ton of fact and not of pleading.
Appellant excepted TO the following
charge: eff the evidence satisfies the
jury beyond a reasonable doubt that the
defendant did as charged in the indict-
ment pursue in the county of Galveston,
state of Texas, the occupation of selling
spirituOus, vinous and malt liquors in
quantities less than quart, between the
ISL udS Vi SClODSI. 1CCpJ anu tllS ZfIH
day of January, 1887, (the date of filing
the indictmeu0 without having paid the
occupation tax of $500 to the state and
$3.50 to the county of Galveston, and the
said taxes were then due and owing and |
unpaid to the state and county respect
lively, say you find the defendant guilty |
as charged in the indictment, and assess
his punishment, which is fine not less |
than $3.50, nor more than $780, The |
objections are, first, that the charge does |
not correctly define the offense, and sec
ond, it does not give the penalty COR
rectly, and is upon the right of evidence,
etc.
Appellant being charged with pursuing
the occupation without license counsel |
for appellant contend that the charge is |
incorrect because it substitutes without !
having paid the taxi for without hav-
ing obtained license, - etc. If appel |
liant had in fact paid the taxes and pro-
cured the license SIS required by article /
1l2 as amended March 10, 1881, he could /
not have had a license. This being so, |
the charge was more favorable to him