125 S.W. 59 | Tex. App. | 1910
This suit was instituted August *553 26, 1907, by L. Craddock Company against the Wells-Fargo Company Express, to recover the sum of $1025.93 which plaintiff paid defendant as outgoing and return express charges on a large number of packages of intoxicating liquors delivered to defendant at Dallas, Texas, to be transported and delivered to various consignees throughout the State of Texas and to collect from each consignee the cost of the goods and transportation and return said collections to plaintiff, which defendant failed and refused to do, on the ground that same was prohibited by the Act of February 12, 1907, known as House Bill No. 53, and commonly known as an Act imposing an Occupation Tax on Persons, Firms and Corporations handling Liquors C. O. D. Upon a hearing by the court upon an agreed statement of facts judgment was rendered for the defendant, and plaintiff appealed.
The agreed statement of facts shows that defendant promptly carried the liquor shipments to the several points of destination and fully performed all of its duties as a carrier with respect to same up to and including February 12, 1907. On that day an Act of the Texas Legislature, passed with the emergency clause, imposing an occupation tax or license on persons, firms or corporations handling intoxicating liquors C. O. D. The appellee after said Act went into effect refused to any longer continue the C. O. D. business as applied to the liquor traffic. It delivered all C. O. D. packages after February 12, 1907, on which appellant would release the C. O. D. Appellant did this as to certain packages, but refused to do this as to those in question. Appellant requested appellee to return the shipments, remaining undelivered, to it at Dallas, which was done by appellee, but appellee required of appellant the payment of the return express charges on such shipments (the outgoing charges on same having been paid when the packages were originally delivered to appellee). Appellant paid the return charges under protest. In its answer to plaintiff's action the defendant plead that the Act above referred to was designed by the Legislature to prohibit the C. O. D. feature as applied to the carriage by express of intoxicating liquors. It also plead that as a carrier it could not lawfully refund charges for services performed by it as a carrier.
It is contended by appellant that the court erred in rendering judgment for the defendant and not rendering judgment for the plaintiff upon the agreed statement of facts, because the contracts were legal and valid when made, and if the defendant was prohibited by a subsequent valid law from fully performing same, and the plaintiff not having received any benefits from a partial performance, the defendant is liable to the plaintiff for the amount paid by plaintiff to defendant under said contract. The case of Binz v. National Supply Co.,
Appellant contends under its second assignment of error, under which the contention properly arises, that the C. O. D. tax law is unconstitutional in that it violates article VIII, section 1, of our State Constitution, which provides that "taxation shall be equal and uniform," and article VIII, section 2, which provides that "all occupation taxes shall be equal and uniform upon the same class of subjects within the limits of the authority levying the tax," because the same is an unreasonable and unnatural classification, in that it is not a tax on the express business nor upon intoxicating liquors, nor upon the carriage of intoxicating liquors, but is a tax only on the C. O. D. feature of the carriage of intoxicating liquors which is merely an incident to the business. We do not agree to this contention. The law imposes an occupation tax on persons, firms or corporations handling intoxicating liquors C. O. D. The tax is imposed on the delivering of liquors and collecting from the consignee the price of the same and returning it to the consignor. This is not a necessary part of the business of express companies. In our opinion it constitutes a business in itself, and is not, as appellant contends, simply an incident to the express business, which business paid an occupation *555
tax when the statute of 1907 was adopted. It is equal and uniform on all persons, firms or corporations delivering intoxicating liquors upon payment of the purchase money therefor. It affects all classes alike within the limits of the State. The law is a revenue law and is not prohibited by section 48, article III, of the Constitution, which provides, "that the Legislature shall not have the right to levy taxes nor impose burdens on the people except to raise revenues sufficient for the economical administration of the government." The Act was sufficient to protect the express company in refusing to deliver the C. O. D. packages. It was not required to pay an occupation tax, it being admitted that its gross receipts per office, at the various points named in the petition, did not amount to $5,000, the amount of the tax. But had its receipts amounted to $5,000 at such points, it was optional with the company whether it would pay the tax and secure a license or refuse to comply with the terms of the law. Nor was the express company authorized or required to treat the statute as void and unconstitutional. (Sessums v. Botts,
But if we are mistaken in holding the statute valid in imposing an occupation tax on persons, firms or corporations handling intoxicating liquors C. O. D., then we hold the statute is valid as a police regulation of the handling of intoxicating liquors. It is, we think, public history that a custom had grown up in the State for dealers in intoxicating liquors on ship packages of the same by express to counties and localities in which local option was in force consigned to fictitious persons or to persons who had not ordered the same, and then write to some person in such local option territory to call at the express office and get the package and pay the charges thereon. The express company would then, upon request, deliver the package and collect the charges and return the money to the dealer. This practice had the effect of defeating prohibition in local option territory. It was the object of the Legislature to prohibit or at least regulate this custom. This, in our opinion, the Legislature had authority to do. (San Antonio A. P. Ry. Co. v. State,
We conclude that the trial court properly rendered judgment for appellee and the same is affirmed.
Affirmed. *556