| Tex. | Jul 1, 1876
This is a suit by appellant to recover back money which, it is alleged, had been wrong
1st. Special tax levied for the year 1867, to pay principal and interest on bonds to be issued for the erection of a jail and workhouse. 2d. License tax paid to the county treasurer for the benefit of the jury fund in the years 1867, 1868, 1869, and 1870. 3d. Tax for general county purpose of one half the occupation tax levied on appellant by the State for the same years.
On the trial, the court instructed the jury in effect that appellant was liable for the amount which he alleges he had paid as license and county occupation tax; and if no greater amount had been collected they should find for the defendant, but if any greater amount had been collected and appropriated by the defendant, the plaintiff was entitled to a recovery for'Such excess. hTo reference is made in the charge to the special tax for the erection of a jail and workhouse, and no instructions whatever were requested by either party. The jury returned a general verdict in favor of the defendant, and the court gave a corresponding judgment, from which the plaintiff appeals and assigns for error—
“I. The court erred in each and every part of the charge given to the jury.
“U. The court e»:red in overruling plaintiff’s motion for a new trial.
“HE. The verdict of the jury is contrary to law, the evidence, and the charge of the court, and the judgment is for the defendant, when it should have been for the plaintiff.”
As the first and third assignments are the precise grounds presented by the motion for a new trial, the second assignment, that the court erred in overruling this motion, is no more than a reiteration of them.
We are called upon by the first-assignment to decide whether the county of Galveston was authorized to collect from appellant, for general revenue, during the years mentioned in
In regard to the first of these taxes it will suffice to say that the objections which are made to it were fully considered and decided in the case of Blessing v. The City of Galveston, 42 Tex., 641" court="Tex." date_filed="1874-07-01" href="https://app.midpage.ai/document/blessing-v-city-of-galveston-4892411?utm_source=webapp" opinion_id="4892411">42 Tex., 641, in which the same argument and authorities were urged that are now relied upon for the reversal of the judgment in this case. 'A reconsideration of them has not shaken our confidence in the correctness of the conclusions to which we then came, and we deem it therefore unnecessary to reopen their discussion.
In regard to the second of these taxes it is urged that the act of February 2, 1856, by which it is imposed, was repealed by the act to adopt find establish a penal code,-approved August 28,1856. This precise question was fully considered, and after a most thorough and exhausting discussion was decided in the negative by this court in the case of Cain v. The State, 20 Tex., 356. Although the present chief justice dissented from the conclusion of the majority of the court, the judgment has ever since been regarded by the court and bar as settled law, and it is now much too late to reopen it.
It is also insisted that the act is unconstitutional because it embraces two objects, both of which are expressed in its title. The number of cases in which the court has been called upon to consider similar objections to other laws, renders it unnecessary to say little more than that this objection cannot be maintained. The act embraces, as we think, but one leading object. All its provisions are subsidiary to, and legitimately connected with, and tend to effect and enforce, this main object, which is sufficiently, clearly, and definitely expressed in the title. The constitutionality of the act, as we have just said, was directlv before the court
For do we think we are justified in saying that this act of February 2, 1856, and the amendment thereto of October 27,1866, were repealed by the act entitled “An act to levy taxes,” approved Fovember 6, 1866. It cannot be denied that appellant was 'engaged in an occupation for the pursuing of which he might be required by law to procure a license, and upon which an occupation tax could be imposed by the Legislature. The amount of such tax, the manner of collecting it, and the purposes to which it should be applied when collected, are matters of legislative discretion. We cannot say that laws enacted by the Legislature to effect these jpurposes are unconstitutional, unless they are clearly shown to be in conflict with some provision of that instrument; nor can the court say that the Legislature may not assess the amount of tax it intends levying, by different acts,. in which the amount collected under one act may be appropriated differently from that imposed by the other. For do we think that we would be warranted in holding that the former of such acts was repealed by the latter, by implication, unless they were clearly and manifestly in conflict with each other.
The jury were instructed, if a, greater amount had been collected from appellant than he was hable for as occupation and license tax, they should find in his favor for such amount; and as it appears that he had paid in 1867 seventy-five dollars as jail and workhouse tax, it is insisted that the verdict is against the evidence, and the judgment should be
It is also urged, as we think, with more reason, that no such bonds as those referred to in the levy of the tax have been issued by the county, and therefore appellant is entitled to recover back the tax collected from him to pay them. But it is not alleged that the comity has abandoned all intention of issuing the bonds in future, or that the tax has not been applied to the construction of a jail or prison for the use of the county, or that the money so collected has been improperly diverted from the purpose for which the tax was levied. Unless something of this kind was clearly shown, appellant unquestionably cannot recover it back from the county.
There is no error in the judgment, and it is affirmed.
Affirmed.