Gibson v. State, No. 486.

No. 486. | Tex. Crim. App. | Mar 13, 1895

Appellant was convicted for pursuing the occupation of selling intoxicating liquor without having obtained a license for that purpose. He was a druggist, kept intoxicating liquors in stock, sold them on prescription of physicians, and had not obtained a license for pursuing the occupation of retail liquor dealer. His drugstore was situated in a local option district, and it was there he sold said intoxicants. These facts are undisputed. Appellant contends that, as local option was in force, he was not required to obtain a license for that purpose, in order to sell liquor; that he ought not to have been prosecuted for the offense charged. It has been uniformly held in this State, that local option, when put into operation, suspends and supersedes in the given territory, for the time being, those laws which require the issuance of license to parties engaged in the sale of intoxicating liquors. It is also held, that it operates a revocation of licenses issued prior to the adoption of local option in such districts.

The prosecution contended, and was sustained by the trial court in that contention, that the Act of 1893 (page 177), levying a tax upon such occupation, intended, by a proviso contained in section 1 of said act, to require druggists selling liquor in local option districts to obtain a license for that purpose before they could sell upon prescription. That proviso is as follows: "Provided, that nothing in this section shall be so construed as to exempt druggists who sell spirituous, vinous, or malt liquors, or medicated bitters, on prescription of a physician, or otherwise, from the payment of the tax herein imposed." Said section, from which the proviso is an excerpt, levies a tax upon the occupation of selling the intoxicants mentioned, and was enacted for that purpose alone. It refers only to such tax, and the cited proviso was intended to include druggists who sold upon prescription or otherwise, and to prevent an evasion of its terms by such druggists under any and all subterfuges. It does not relate to local option, nor has it any reference whatever to the laws regulating the sale of intoxicants in local option districts. The local option law, when put into operation, suspends and supersedes such laws as levy an occupation tax upon the sale of liquors. The very object and intent of the local option laws are to prevent the sale of such liquor, to prohibit such occupation from being carried on in the given territory, and as such special laws control the general law, the State has not undertaken to maintain the two very inconsistent laws in the same territory, if, indeed, it could be done. The two laws are so clearly repugnant and inconsistent that the operation of one would seem to exclude the operation of the other. Again, the law levying the tax upon such occupation being suspended or superseded, it follows, that the proviso contained in said law is also superseded. The proviso is but a part of the section of the act in which it is embodied, and was intended only to render it more effective as to the matters set out. When that law is abrogated or superseded, the proviso is necessarily abrogated or superseded, unless there is legislation clearly indicating the contrary.

That this view is correct is, we think, rendered certain by the terms of the statute, which provides, that "in all cases where any person, firm, or association of persons, pursuing the occupation of liquor dealers, under license in accordance with the laws of this State, has been or shall hereafter be prevented from pursuing such occupation for the full time to which he would be otherwise entitled, by reason of the adoption of local option in any county, precinct, subdivision of such county, town, or city, a proportionate amount of taxes paid by him for the unexpired time shall be refunded to him." Acts 1893, p. 51, art. 3239b. This statute unquestionably provides for refunding occupation taxes paid by liquor dealers whenever local option operates to discontinue their business, and this pertains as well to druggists selling on prescription as to others who sell without prescription. Having paid the tax prior to local option being put in force, the said druggist would be entitled to a proportionate reimbursement of taxes so paid by him. Being taxed under the same law as other liquor dealers, he is liable to the same burdens, and entitled to the same rights and privileges. It can not be contended with any degree of plausibility that he must pay, and be, at the same time, reimbursed to amount of taxes so paid. This would result in the novel process of paying and refunding the tax as rapidly as paid during the existence of local option. Nor was it intended that the druggist should, by having paid the tax, continue his business in such local option district while all others, who had paid the same tax, and who were engaged in the same business under the terms of the same law, should be forced to go out of business. Their rights, privileges, and liabilities, are equal and the same under both laws. Acts 1893, pp. 51, 177, already cited.

The judgment is reversed and cause remanded.

Reversed and remanded.

Judges all present and concurring.