25 Tex. 460 | Tex. | 1860
It is contended that the payment of the license tax imposed by the city, was voluntarily made by the defendants, and that for that reason they cannot recover back the ’money so paid. It was collected off of the defendants under color of lawful authority, in pursuance to an ordinance of the city council; which enjoined its payment under a penalty of twenty-five dollars a day for every day its violation was continued by retailing spirituous liquors. The act of incorporation gave to the city assessor the same remedies for the collection of taxes imposed by the city as the assessor of each county has for the collection of State or county tax. This subjected the defendants’ property to seizure and sale in a summary manner by the assessor. (O. & W. Dig., Art. 1987.)
Under these circumstances, the parties are not on equal terms. The ordinance of the city council required the defendants to obtain a license before retailing liquor, and imposed a heavy penalty for its violation. The defendants, by refusing to pay, would have placed themselves in the attitude of resisting the public authorities, and would have exposed themselves to the certain harassment of litigation, and to the great hazard of ruinous loss, if they should fail in that resistance. It is not contended in this case, that the city council had no right to impose some occupation tax upon the defendants, but only that the tax of five hundred dollars was dis-proportioned to that imposed on other occupations, and was therefore excessive, unjust, and illegal. Still they had to pay the whole amount to get the license which was required by the city ordinance. It has often been held, that if a party pay money voluntarily, in ignorance of law, but with a knowledge of all the facts, he cannot recover it back. (Bilbie v. Lumley and others,
This rule cannot obtain, however, where the parties are not upon equal terms in the transaction. “ If one party has the power of saying to the other ‘.that which you require shall not be done except upon the conditions which I choose to impose,’ no person can contend that they stand upon any thing like an equal footing.” Here the defendants were merely passive, and submitted to pay the sum claimed, as they could not otherwise procure the license required by the city ordinance. (Morgan v. Palmer, 2 Barn. and Cress., 319, 321.)
If, also, the city council exceeded its authority in making this assessment of tax, and demanded and received from the defendants more than the charter permitted, and it was paid under the pressure of the summary remedies prescribed for its collection, and of the heavy penalty for retailing without its payment, it was against good conscience to retain it; and that is an additional reason why the action for it can be maintained. (Brisbane v. Dacres, 5 Taunt., 90.)
The next important question in the case is, did the city council have the right to impose this license tax of five hundred dollars? It is not necessary to call in question the constitutional power of the Legislature of the State to invest a municipal corporation with the authority to levy and collect taxes, because we are of opinion that the charter did not authorize this assessment and collection. The facts show that the city council undertook to declare and enforce a public policy by discriminating against this occupation, in a degree far exceeding that of the Legislature, in the collection of taxes for State and county purposes. The State has indicated its policy'in respect to the encouragement to be given to the various occupations liable to taxation, by apportioning the taxes upon each respectively. Retailers of spirituous liquors are required to pay annually two hundred and fifty dollars; those who keep a billiard table fifty dollars; an eating house sixteen dollars. The city council have not followed this apportionment, but imposed license tax on such retailers of liquor five hundred dollars; on billiard tables thirty dollars, and on eating houses fifteen-dollars. Thus,
The act of incorporation prescribes, “that the city council of the city of Marshall shall have and exercise the power of laying and levying taxes upon all subjects of taxation within the corporate limits, upon which a tax may be levied by the State, as may be deemed necessary; provided, that the tax on property shall not in any one year exceed one-half of one per cent, ad valorem on such property; provided, also, that such tax shall be apportioned in the same manner as the State tax.”
The rule for the apportionment of taxes upon property is laid down by the constitution-to be according to its value, except such property as two-thirds of both houses of the Legislature may think proper to exempt from taxation. The constitution leaves the apportionment of the taxable occupations entirely to the discretion of the Legislature. (O. & W. Dig., 25, sec. 27 Gen. Prov.)
The Legislature has exempted certain property from taxation, and has fixed the apportionment of taxes levied upon occupations. The object of the two provisos attached to the general power of taxation given to the corporation, are, first, to limit the tax on property not exempt, (which cannot be otherwise than ad valorem) at one-half of one per cent, per annum; and second, to require the' city council to follow the apportionment of occupation tax as indicated by the will of the Legislature in the assessment of State tax. This is the natural construction, and gives greatest effect to all of the provisions of the section of the law in question. Indeed, if it be held that the second proviso refers alone to property tax, as contended for by counsel for plaintiffs, it can have no meaning or force whatever, unless perhaps in-its application to exempted property. It would leave the city council with unlimited powers in levying and apportioning taxes on occupations. It might prescribe the public policy of the country within the city, at discretion, in building up one occupation by exemption, and in banishing another by the imposition of burthens in the shape of tax. The Legislarture should not readily be supposed to have conferred such powers upon any inferior municipal authority, nor indeed would it be so
We think the meaning of the act plain, and well expressed, and that it requires the city council in assessing taxes on taxable occupations, to fix the same proportion between them as that fixed by the Legislature for the State tax, thereby following the policy adopted by the whole State, and not that dictated by their own discretion. (See cases bearing on this matter, 1 Humph., 160, 241.)
Upon this view of the law, it is presumed the case was adjudicated below. Whether or not it should have been determined that the ordinance of the city council imposing this excessive tax, was utterly void for want of authority to assess it in the manner it was done, need not now be decided, as the defendants have not appealed or taken a writ of error from the judgment of the court below.
Judgment affirmed,
