72 F. 850 | U.S. Circuit Court for the District of Western Texas | 1896
after stating the case, delivered the following opinion:
The objection is made in limine by counsel for complainant, to the demurrers of defendant, that they are not supported by the usual certificate of counsel and affidavit of defendant, as required by equity rule 31, which provides that:
“No demurrer or plea shall be allowed to be filed to any bill, unless upon a certificate of counsel that In his opinion it is well founded in point of law, and supported by the affidavit of the defendant that it is not interposed for delay; and if a plea, that it is true in point of fact.'”
Xeither the certificate nor affidavit required by the rule is appended to the demurrers, and they should therefore be disregarded. Construing the rule above quoted, it is said by the supreme court that:
“Inasmuch as the so-called demurrer was fatally defective, in lacking the affidavit of defendant and certificate of counsel required by rule 31, there was no error in disregarding it and entering a decree pro confesso.” Furnace Co. v. Witherow, 149 U. S. 576, 13 Sup. Ct. 936; National Bank v. Insurance Co., 104 U. S. 76.
The bill in the present case seeks to enjoin the collection of an occupation tax imposed by the state, upon the two general grounds that the act of the legislature is in violation of the state constitution, and that it is repugnant to the constitution of the United States; and, as a further ground of equitable cognizance, it is insisted that the enforcement of the statute by the collection of the tax would subject complainant to a multiplicity of suits, and result in irreparable injury. That an injunction should issue, in a proper case, to restrain the collection of a tax, is doubtless true. To authorize it, however, the tax must not only be illegal, but the party must, by his bill, bring his case under some acknowledged head of equity jurisdiction, “such as that the enforcement of the tax would lead to a multiplicity of suits or produce irreparable injury, or, where the property is real estate, throw a cloud upon the title of complainant.” Shelton v. Platt, 139 U. S. 594, 11 Sup. Ct. 646; Railway Co. v. Cheyenne, 113 U. S. 516, 5 Sup. Ct. 601; State Railroad Tax Cases, 92 U. S. 575; Hannewinlde v. Georgetown, 15 Wall, 547; Dows v. Chicago, 11 Wall. 109; Blessing v. Galveston, 42 Tex. 641. It consequently follows that, if the tax be a legal charge, — if it be lawfully exacted pursuant to a constitutional statute, — an injunction should not issue to stay the hand of the state in the collection of its revenue. Is the statute in question obnoxious to the objections urged by counsel for complainant? It is assailed first on the ground that it is in violation of the constitution of the state. Counsel for complainant, after discussing in their brief several objections to the act of the legislature, make the following admission:
“In answer to this the defendant may cite the court to the case of Thompson v. State, 17 Tex. App. 253. It is true that in that case the learned judge who announced the opinion of the court upheld a similar law to the statute in controversy, and later reaffirmed the decision in the case of Baldwin v. State, 21 Tex. App. 591, 3 S. W. 109. In neither of these cases was the construction of article 0 of the Penal Code asked, nor was the claim made that section 8 of the hill of rights was violated.”
It must be remembered that this is not a tribunal clothed with power to revise and reverse the decisions of the highest courts of the state upon questions which concern the validity of a state law, as affected by the constitution of the state, and the true construction of that law. Generally speaking, such decisions are binding upon the federal courts, and are to be accepted by them as correct expositions of the law in a given case. Thus, it is said by Mr. Justice Miller, speaking for the court, in State Railroad Tax Oases, supra:
“As the whole matter, then, concerns the validity of a state law, as affected by the constitution of the state, that question, and the other one of the true construction of that statute, belong to the class of questions in regard to which this court still holds, with some few exceptions, that the decisions of the state courts are to be accepted as the rule of decision for the federal courts.”
“The sewing machines here in question were made in Connecticut. The supreme court of the state held in this case ‘that the law taxing the peddlers of such machines levied the tax upon all peddlers of sewing machines, without regard to the place of growth or produce of material or of manufacture.’ We are hound to regal'd this construction as correct, and to give it the same effect as if it were a part of the statute.”
And in Pullman’s Palace-Car Co. v. Pennsylvania, 141 U. S. 21, 11 Sup. Ct. 876, this emphatic language is employed by Mr. Justice Gray, who rendered the op inion of the court:
“Upon this writ of error, whether this tax was in accordance with the law of Pennsylvania is a question in which the decision of the highest court of the state is conclusive.”
In the case at bar the argument of counsel seems to proceed upon the assumptions: (1) That this case involves distinct questions, concerning which no ruling was requested, nor made by the court of appeals, in the Cases of Thompson and Baldwin; and (2) that those cases have been overruled by the same court in Ex parte Neill, 32 Tex. Cr. R. 275, 22 S. W. 923. By reference to the Thompson Case, it will be seen that he was indicted for the offense “of pursuing the occupation or business of selling and offering for sale the Illustrated Police News and Police Gazette without obtaining license and paying occupation tax therefor.” The trial resulted in his conviction, and the assessment of a fine of $750.
“T'lie motion in arrest of judgment alleged that the indictment charged no offense; that the act of May 4, 1882, so far as it attempts to levy the tax for the failure to pay which the defendant was indicted, is oppressive, indefinite, and uncertain, and heyond the power of the legislature; the said act is repugnant to section 2, art. 8, of the constitution; that the indictment did not sufficiently and with certainty describe the occupation for the pursuing of which the defendant was sought to he charged; that the prosecution w£is such as is expressly prohibited by section 8 of article 1 of the constitution.”
By the act of May 4, 1882, it is provided that there shall be levied on and collected “from every person, firm or association of persons selling or offering for sale, the Illustrated Police News, Police Gazette, and other illustrated publications, of like character, the sum of $500 in each county in which such sale may be made or offered to be made.” Judge Willson, in delivering the opinion of the court, says:
“There is but a single question presented by the record for our determination, and that is the constitutionality of the above-quoted statutory provision. Gounsel for appellant contends that said law is unconstitutional for two reasons: (1) That the tax levied by it is not ‘equal and uniform upon the same class of subjects.’ Const, art. 8, §§ 1, 2. (2) That it is oppressive, yague, uncertain, indefinite, and beyond the power of the legislature.”
At page 258, 17 Tex. App., Judge Willson further says:
“In support of our view that the law in question is valid, that it was fully within the power of the legislature to enact it, and that it is not obnoxious to any of the objections made to it, we cite the following additional authorities: Cooley, Tax’n, 396, 403, 404; Cooley, Const. Lim. 713, 725, 748, 749; Burroughs, Tax’n, § 77; Languille v. State, 4 Tex. App. 312; Higgins v. Rinker, 47 Tex. 393.”
Counsel for complainant urgently insist .that a tax levied upon the occupation of selling a newspaper contravenes section 8, art. 1, of the constitution, because it restricts the liberty of the press. That article is as follows:
“Every person shall be at liberty to speak, write or publish his opinions on any subject, being responsible for the abuse of that privilege; and no law shall ever be passed curtailing the liberty of speech or of the press.”
It has already been shown that this provision of the constitution was relied upon by counsel in Thompson’s Case to defeat a similar statute, which was declared by the court to be in all respects constitutional. And, as the decision of the court of appeals is binding upon this court, it is deemed useless to pursue the argument further, except to add, in the language of Judge Simkins:
“It is obvious, from the express terms of the constitution, that the only exemptions from the all-pervading power of taxation are the agricultural and mechanical pursuits.” Ex parte Williams, 31 Tex. Cr. R. 272, 20 S. W. 580; Albrecht v. State, 8 Tex. App. 221; Languille v. State, supra.
The position assumed by counsel for complainant, that article 6 of the Penal Code, and section 8 of the bill of rights, were not substantially given effect by the court in Thompson’s Case, does not seem to be well taken. But it is further contended that the Cases of Thompson and Baldwin are overruled by the subsequent case of Ex parte Neill, supra. A brief reference to Ex parte Neill will demonstrate the fallacy of this contention. Neill, a newsdealer in the city of Seguin, was arrested and fined in the mayor’s court for violating the following ordinance; The city council of the city of Seguin ord,ained — “That the Sunday Sun, a paper said to be published at Chicago, Illinois, is hereby declared a public nuisance, and its circulation prohibited within the corporate limits of the city of Seguin. Any person or persons offering to sell, barter, give away, or in any mannér dispose of the Sunday Sun in violation of above ordinance, shall be punished in a fine not to exceed one hundred dollars.” Resorting to a writ of habeas corpus, Neill was'remanded to custody by the county judge, and appealed his case to the court of criminal appeals. The court properly held the ordinance void, and observed: “We are not informed of any authority which sustains the doctrine that a municipal corporation is invested with the power to declare the sale of newspapers a nuisance.” The court makes no reference, direct or remote, to the Thompson and Baldwin Cases. Why? Because there is such striking dissimilarity between "them and Neill’s Case that it was evidently deemed altogether unnecessary to allude to the distinc-
The decisions of the court in Thompson v. State and Baldwin v. State are therefore binding upon this court, in so far as they affect questions already discussed. This further objection is, however. urged by complainant’s counsel to the validity of the act in question:
“Because the act is in violation of section 35, art. 3, of the constitution of the state of Texas, in this: that the subject of said act is not expressed in the title. The title expresses only the taxing of a certain occupation, while the act itself taxes each individual, and single sale or offer of sale, whether selling said newspaper be followed as an occupation or not.”
As the' question involved in this objection did not. arise, and could not have arisen, in the Thompson Case, it becomes the duty of the court to consider it. The act complained of, including its title, is set out in the foregoing statement of the case, and need not he repeated. Having under consideration section 35, a,rt. 3, of the constitution, it is said by Judge Clark, in Albrecht v. State, 8 Tex. App. 221, that:
“In construing the 'provision, therefore, comts have almost uniformly refused to adopt a strict and literal construction, which would inevitably tend to the serious embarrassment of legislation, and have uniformly sustained legislation when the several provisions of the act are fairly indicated in the general object as stated in the title, under a rule adopted by themselves, giving to the sections a broad and liberal construction. The general purpose of the provision is fully accomplished when a law has but one general object, which is fairly indicated by its title; and the generality of the title is not objectionable so long as it is not made a cover to legislation incongruous in itself, and which by no fair intendment can be considered as having a necessary or proper connection.”
In support of the principle, Judge Clark cites Breen v. Railway Co., 44 Tex. 302; Giddings v. City of San Antonio, 47 Tex. 548; Ex parte Mabry, 5 Tex. App. 93; Railroad Co. v. Potts, 7 Ind. 681; People v. Briggs, 50 N. Y. 553; Coolev, Const. Lim. 141-145.
In Bay Land & Cattle Co. v. State, 68 Tex. 54-2, 4 S. W. 865, Mr. Justice Stayton, delivering the opinion of the court, states the purpose of the constitutional provision in the following language:
“As said in Tadlock v. Ecclcs, 20 Tex. 793, ‘the intention, doubtless, was to prevent embracing In a"n act having one ostensible object provisions navmg no relevancy to that object, but really designed to effectuate other and wholly dif ferent objects, and thus to conceal and disguise the real object proposed by thr provisions of an act under a false and deceptive title.’ A title or act essentially single in subject, which does not conceal or disguise the real purpose, is not subject to constitutional objection, although the ends intended to be reached through the one subject may be many.”
There is no ambiguity in the act in question, nor real inconsistency between it and the title. The act, considered in connection with its title, makes manifest the legislative intent to tax every person who sells or offers for sale the publications named. Tested by the authorities referred to, the law is not obnoxious to the objection urged against it; and, following the decisions of the highest courts of the state, it must he held valid in its entirety,
Counsel for complainant further challenge the validity of the statute upon the grounds (1) that "it is in violation of clause 3 of section 8 of article 1 of the constitution of the United States, in that it attempts to regulate commerce among the several states”; and (2) “because it is in conflict with clause 2, § 10, art. 1, of the constitution of the United States, in that it lays an impost or. duty on imports without the consent of congress, — said Kansas City Sunday Sun being an article of import from the state of Missouri into the state of Texas, by your orator herein.” The intricate, difficult, and serious questions which these objections involve have received at the hands of the court the careful attention and thoughtful consideration which their importance demands. A large number of cases have been examined, beginning with Gibbons v. Ogden (decided in 1824) 9 Wheat. 1, and extending to Emert v. Missouri (decided in 1895) 156 U. S. 296, 15 Sup. Ct. 367. And the embarrassment attending the effort of the trial court to reach correct conclusions in cases involving “the questions of the nature of the power to regulate commerce, and how far that power is exclusively vested in congress,” is greatly enhanced when it is reflected that, employing almost the exact language of Mr. Justice Miller, the question has seldom been decided in the supreme, court with unanimity. Hinson v. Lott, 8 Wall. 152. Although 28 years have elapsed since the statement made by that eminent jurist, a continuing “want of unanimity” is clearly made manifest by later decisions; notably, those rendered in Leisy v. Hardin, 135 U. S. 100, 10 Sup. Ct. 681, and the recent case of Plumley v. Massachusetts, 155 U. S. 461, 15 Sup. Ct. 154. With these observations, the court will proceed to inquire whether the objections of counsel are tenable. The two clauses of the federal constitution invoked to defeat the statute read as follows:
Clause 3, § 8, art. 1: “The congress shall have power * * * to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.”
Clause 2, § 10, art. 1: “No state shall, without the consent of the congress, lay any imposts, or duties on imports or exports, except what may he absolutely necessary for executing its inspection laws.”
By the Texas statute, “every person, firm or association of persons selling or offering for sale the 'Sunday Sun’ the 'Kansas City Sunday Sun,’ or other publications of like- character, whether illustrated or not,” is required to pay “the sum of five hundred dollars in each county in which sale may be made or offered to be made.” Article 112 of the Penal Code of 1895 provides:
“Any person who shall pursue or follow any occupation, calling or profession, or do any act taxed by law, without first obtaining a license therefor, shall be fined in any sum not less than the amount of the taxes due, and not more than double that sum.”
The case made by the bill is that the complainant is a citizen-of Missouri; that he is the editor and publisher of the Kansas City Sunday Sun; that his newspaper has been entered by the post-
“Whether we look, then, to the terms of the clause of the constitution in question, or to its relation to the other parts of that instrument, or to the history of its formation and adoption, or to the comments of the eminent men who took*860 part in those transactions, we are forced to the conclusion that no intention existed to prohibit, by this clause, the right of one state to tax articles brought into it from another.” Hinson v. Lott, supra; Brown v. Houston, 114 U. S. 622, 5 Sup. Ct. 1091.
Is the position of counsel maintainable, — that the statute is in derogation of clause 8, § 8, art. 1, in that it attempts to regulate commerce among the states? In support of this contention, reliance is placed upon Leisy v. Hardin, supra; Bowman v. Railroad Co., 125 U. S. 465, 8 Sup. Ct. 689, 1062; Robbins v. Taxing Dist., 120 U. S. 489, 7 Sup. Ct. 592, — and other authorities cited in the brief. It would proye a fruitless undertaking for the court to attempt a review of the cases, for the purpose of distinguishing between them. That duty has been performed by the supreme court in numerous cases, and particularly in the exhaustive prevailing and dissenting opinions in Leisy v. Hardin, in Plumley v. Massachusetts, and Emert v. Missouri. And it may be remarked that, in Plumley v. Massachusetts, Leisy v. Hardin is expressly limited. 155 U. S. 474, 15 Sup. Ct. 154. Without entering, therefore, upon a more extended reference to the cases, it is thought that the disposition of this case should be controlled by the principles laid down by the court in Woodruff v. Parham, Hinson v. Lott, Machine Co. v. Gage, Brown v. Houston, and Emert v. Missouri. In essential respects, the facts of Woodruff y. Parham are quite similar to those upon which complainant here relies, and may be stated as follows:
“The city of Mobile, Alabama, in accordance with a provision of its charter, authorized the collection of a tax for municipal purposes on real and personal estate, sales at auction, and sales of merchandise, capital employed in business, and income within the city. This ordinance being on the city statute book, Woodruff and others, auctioneers, received in the course of their business, for themselves, or as consignees and agents for others, large ambunfs of goods and merchandise, the product of states other than Alabama, and sold the same in Mobile, to purchasers, in the original and unbroken packages. Thereupon the tax collector for the city demanded the tax levied by the ordinance.”
Woodruff refused to pay, asserting that it was repugnant to the following clauses of the constitution: Clause 3, § 8, art. 1; clause 2, § 10, art. 1; and clause 1, § 2, art. 4. The supreme court of Alabama decided in favor of the tax, and its judgment was affirmed by the supreme court of the United States. In discussing the case the following questions and answers are suggested by the court:
“But we may be asked, is there no limit to the power of the states to tax the produce of their sister states, brought within their borders? And can they so tax them as to drive them out, or altogether prevent their introduction, or their transit over their territory? The case before us is a simple tax on sales of merchandise, imposed alike upon all sales made in Mobile, whether the sales be made by a citizen of Alabama or of another state, and whether the goods sold are the produce of that state, or some other. There is no attempt to discriminate injuriously against the products of other states, or the rights of their citizens; and the case is not, therefore, an attempt to fetter commerce among the states, or to deprive the citizens of other states of any privilege or immunity possessed by citizens of Alabama. But a law having such operation would, in our opinion, be an infringement of the provisions of the constitution which relate to those subjects, and therefore void.” 8 Wall. 140.
“Before it shall be lawful for any dealer or dealers in spirituous liquors to offer any such liquors for sale within the limits of this state, such dealer or dealers introducing- any such liquors into the state for sale shall first pay the tax-collector of the county into which such liquors are introduced, a tax of fifty cents per gallon upon each and every gallon thereof.”
Other sections of the same statute laid a tax of 50 cents per gallon on all whisky and all brandy from fruits manufactured in the state. With this statute in force, Hinson, a Mobile merchant, filed a bill against the tax collector for the city of Mobile and state of Alabama, “in which he set forth that he had on hand five barrels of whisky consigned to him by one Dexter, of the state of Ohio, to be sold on account of the latter in the state of Alabama, and that he had five other barrels purchased by himself in the state of Louisiana, and that he had brandy and wine imported from abroad (upon which he had paid the import duties laid by the United States, at the customhouse at Mobile), all of which liquors he now-held, and was offering for sale, in the same packages in which they were imported, and not otherwise.” Hinson insisted that the statute was void as being in conflict with the United States constitution, and prayed an injunction. The case went to the supreme court of the state, and “the state tax of fifty cents per gallon on the whisky of Dexter, of Ohio, and that purchased by plaintiff in Louisiana, was held to be valid.” Upon writ of error to the United States supreme court the judgment was affirmed, and, after discussing the constitutional question, it is said by the court:
“As the effect of the act is such as we have described, and it institutes no legislation which discriminates against the products of sister states, but merely subjects them to the same rate of taxation which similar articles pay that are manufactured within the state, we do not see In it an attempt to regulate commerce, but an appropriate and legitimate exercise of the taxing power of the states.”
In Machine Co. v. Gage the following are the material facts: The Howe Machine Company was a corporation of Connecticut. It manufactured sewing machines at Bridgeport, in that state, and had an agency at Nashville, in the state of Tennessee. From the latter place an. agent was sent into Sumner county to sell machines there. A tax was demanded from him for a peddler's license to make such sales. He denied the validity of the law undid- wh ich the tax -was claimed, but, according to a law- of tin; state, paid the amount demanded by Gage as clerk of the county court. The company, who brought the suit to recover it hack, was defeated in the lower court. The judgment was sustained by the supreme court of the state, and subsequently affirmed by the supreme court of the United States, in an opinion delivered by Mr. Justice Swayne. After reviewing the cases the justice adds:
“In. all cases of this class to which the one before us belongs, it is a test question whether there is any discrimination in favor of the state, or of the citizens of (ho state, which enacted the law. Wherever there is, such discrimination is fatal.” 100 TI. S. 079.
“That said coal was mined in Pennsylvania, and was exported from said state and imported into the state of Louisiana as their property, and was then [at the time of the petition], and had always remained, in its original condition, and never had been or become mixed or incorporated with other property ot the state of Louisiana; that when said assessment was made the said coal was afloat in the Mississippi river, in the parish of Orleans, in- the original condition in which it was exported from Pennsylvania, and the agents, Brown & .Jones, notified the board of assessors of the parish that the coal did not belong to them, but to the plaintiffs, and was held as before stated, and was not subject to taxation, and protested against the assessment for that purpose.”
Tbe plaintiffs prayed an injunction, which was granted. On final hearing the injunction was dissolved and the bill dismissed. The supreme court of Louisiana affirmed the judgment (33 La. Ann. 843), and the ruling was sustained by the supreme court of the United States. It was said by Mr. Justice Bradley, who delivered the opinion of the court, that;
“As to the character and mode of the assessment, little need be added to what has already been said. It was not a tax imposed upon the coal as a foreign product, or as the product of another state than Louisiana, nor a tax imposed by reason of the coal being imported or brought into Louisiana, nor a tax imposed whilst it was in a state of transit through that state to some other place of destination. It was imposed after the coal had arrived at its destination and was put up for sale. The coal had come to its place of rest, for final disposal or use, and was a commodity in the market of New Orleans. It might continue in that condition for a year or two years, or only for a da}'. It had become a part of the general mass of property in the state, and as such it was taxed for the current year [1880] as all other property in the city of New Orleans was taxed. Under the law it could not be taxed again until the following year. It was subjected to no discrimination in favor of goods which were the product of Louisiana, or goods which were the property of citizens of Louisiana. It was treated in exactly the same manner as such goods were treated. It cannot be seriously contended — a.t least, in the absence of any congressional legislation to the contrary — that all goods which are the product of other states are to be free from taxation in the state to which they may be carried for use or sale'. Take the city of New York, for example. When the assessor of taxes goes his round, must he omit from his list of taxables all goods which have come into the city from the factories of New England and New Jersey, or from the pastures and grain fields of the West? If he must, what will be left for taxation? And how is he to distinguish between those goods which are taxable and those which are not? With the exception of goods imported from foreign countries, still in the original packages, and goods in transit to some other place, why may he not assess all property alike that may be found in the city, being there for the purpose of remaining there till used or sold, and constituting part of the great mass of its commercial capital, provided, always, that the assessment be a general one, and made without discrimination between goods the product of New York, and goods the product of other states? Of course, the assessment should be a general one, and not discriminative between goods of different states.” 114 U. S. 682, 633, 5 Sup. Ct. 1091.
Emert v. Missouri involved the construction of a statute of Missouri which required peddlers to obtain a license before selling their
“The facts were agreed, — that the Singer Manufacturing Company, for more ll¡an live years last past, and on the day in question, was a corporation of New Jersey; that the defendant, on and prior to that day, was in the employment of that company, and on that clay, in pursuance of that employment, and having no peddler’s license, was engaged in going from place to place in Montgomery county, in the state of Missouri, with a horse and wagon, soliciting orders for the sale of the company’s sewing machines, and having with him in the wagon one of those machines, the property of the company, and manufactured by it at its works in New Jersey, and which it had forwarded and delivered to him for sale on its account, and that he offered this machine for sale to various persons at different places, and found a purchaser, and sold and delivered it to him.”
After an elaborate review of adjudged cases, embracing tliose above cited, the court held that:
“The necessary conclusion, upon authority, as well as upon principle, is that the statute of Missouri, now in question, is nowise repugnant, to the power of congress to regulate commerce among the several states, but is a valid exercise of the power of the state over persons and business within its borders.”
So, also, it must be beld in this case that the statute of Texas is not in conflict with the commerce clause of the constitution, but is a valid exercise of the power of the state over persons and business within its territorial limits, unless it discriminates against the person or property of complainant. If the discrimination exists, as in Welton v. Missouri, supra; Walling v. Michigan, 116 U. S. 446, 6 Sup. Ct. 454; Robbins v. Taxing Dist., supra; Asher v. Texas, 128 U. S. 129, 9 Sup. Ct. 1; Brimmer v. Rebman, 138 U. S. 78, 11 Sup. Cl. 213; and others of that class, — then the statute, according to all the decisions, would be repugnant to the constitution and void. It must be borne in mind that the court of appeals of this state beld a similar statute as not being in conflict with the state constitution, and that the tax levied thereunder was not discriminative, but equal and uniform in its operation. Employing the precise language of the court:
“This law exempts no publication belonging to the class represented by the two named publications from the tax levied. We conclude, therefore, that the tax levied is equal and uniform; applicable to all publications coming within the class designated.” Thompson v. State, 17 Tex. App. 256.
If, then, as said by the supreme court of the United States in reference to the decision of the supreme court of Tennessee, “We are bound to regard this construction as correct, and to give it the same effect as if it were a, part of the statute,” the conclusion is inevitable that the act in question should be construed as not discriminating either against the person or the property of complainant. The law, indeed, requires the person who sells the complainant’s newspaper to pay the tax, but it is equally obligatory on all persons who sell “other publications of like character” to
