31 Tex. 287 | Tex. | 1868
—This case comes before this eojirt in a very defective way for revision. There is no statement of facts, no bill of exceptions, no motion in arrest of judgment, nor for a new trial, in the record. We are left, then, by the pleadings and an exhibit in the petition, to determine upon the correctness of the judgment sought to be reversed.
The question which appears to be raised by the pleadings is, has the legislature the power, by two different statutes, to make two different assessments upon the same subject of taxation in the same period of time? Or, if it has that power, did it so intend to exercise it in the passage
By the first act the retailer is required to execute and deliver to the county treasurer a bond, payable to the county judge, with two or more sureties, embracing certain specified conditions and stipulations therein set forth, and to be filed in the clerk’s office of the county, and then to pay into the county treasury a license tax, at the rate of $300 per annum, when the clerk of the county court is authorized to issue a license for the time he applies and pays for. This license is indispensable, and is the only authority to the retailer to sell such liquors in quantities less than a quart at all, under the law as it now stands. For a violation of this bond he is made amenable, both to a suit upon it and to a penal prosecution, for a misdemeanor.
By the second act the retailer, who is “ pursuing or about to pursue” this “occupation” of selling such liquors in quantities less than a quart, is assessed with a tax at the rate of $300 per annum for the benefit of the state treasury, and is required by another act, approved November 10, 1866, (Sess. Acts, 1866, sec. 10, p. 142,) to make application to the assessor and collector, and pay the amount to him prior to pursuing such occupation, under a penalty of fifty per cent, and costs for failure to do so, within five days thereafter.
These are the several acts and their general provisions, the proper construction of which is involved in the determination of the rights of the parties in this suit. Upon the policy of such legislation we have no right, as a court, to comment. But into the power of the legislature, and its intention in the passage of these acts, it is the province and the duty of this court to inquire whenever the subject is brought before it.
In the enactment of these laws, then, was it the purpose of the legislature to exact both of these taxes from the retailer? These several acts of the legislature were passed at the same session, with short intervals between the periods of their approval by the governor. It is a rule of construction, recognized generally and adopted by the courts of this state, that two statutes, in pari materia, enacted at the same session, are considered as one statute, and must be construed together, and each must be upheld, unless their provisions ' are absolutely repugnant to each other. It is also a general principle of construction, in reference to statutes generally, whether passed at the same session or not, that “ a repeal by implication is not favored” whenever it is possible to reconcile the two acts of the legislature together. There is no repugnancy between the statute of the 27th of October, 1866, and that of the 6th of November, 1866. In the first it was the purpose of the legislature to guard against abuses of the privilege of retailing, by requiring a bond with stringent conditions, and making it a misdemeanor for their violation. In the second the main obj ect seems to have been to raise revenue upon a subject of taxation which it was supposed by the legislature would in all probability prove a fruitful source of revenue. We are satisfied, therefore, that it was the intention of the legislature that both of these taxes should be collectable. The whole is an occupation tax which by the constitution the legislature had a right to impose. It is virtually the imposition of a tax of $600 upon the occupation of retailing spirituous, vinous, and other liquors, and, from motives of policy, collected in two different ways, and by the political
Observe, it is the license tax levied by this act. It is not the tax to be assessed by the assessor and collector. This credit is not to be made by the assessor and collector, but by the county judge from whom the license to retail is obtained. As licenses thereafter were to be granted quarterly, beginning with the commencement of the year, a sense of justice, it is supposed; prompted the legislature to direct the credit upon those thus arbitrarily suspended at the beginning of the year. This provision by no means warrants the conclusion which has been drawn from it. The purpose of the legislature seems to have been to interdict retailing altogether, unless under license, and to prescribe a method, ex eoncesso, by which the assessor and collector of the state taxes might know upon whom to call, and whom to hold responsible for the tax assessable for retailing. The law presumes that no citizen will violate the statutes of the state. And when the retailer has procured
Aeeirmed.