63 S.W. 568 | Tex. Crim. App. | 1901
Appellant was convicted for pursuing the occupation of a peddler in Bell County, without first having paid the occupation tax of $250 fixed by law, and his punishment assessed at a fine of $250.
The agreed statement of facts shows substantially the following: "Appellant admitted that neither he nor his employers, Raterman Luth, *92 had paid the tax of $250 fixed by law upon the occupation of peddling out buggies in Texas for the year 1901; and further admitted that he had been, during the months of March and April, 1901, engaged in peddling buggies in Bell County, Texas, and was so engaged on the 2d day of March, 1901, when he was arrested under the complaint filed in this cause. The following is his account of the manner in which said buggies were received and sold by him: Raterman Luth, a partnership firm composed of H. Raterman and Theo. Luth, are buggy manufacturers living in the State of Ohio, and residents of that State. They have a factory at Cincinnati, where they manufacture buggies, hacks, and vehicles of other descriptions. In March, 1901, they shipped a carload of buggies from Cincinnati, Ohio, where their factory is located, to Temple, in Bell County, Texas, consigned to their own order. These buggies were shipped in a knocked-down condition, that is, some of them were packed as follows: The wheels were taken off the buggies and the dashboards, tongues, and shafts were detached. The wheels and dashboards were packed and bound together in the same crate with the buggies, but the tongues and shafts were shipped separately. Others were entirely taken to pieces and the different parts shipped separately; that is, the wheels, tops, springs, tongues, shafts, dashboards, axles, and bodies were separated from each other and not bound together and shipped through in that condition. The buggies were loaded in the cars in this condition at Cincinnati and shipped through to Temple in the same condition. The defendant was employed by Raterman Luth, as their agent at Temple, to sell said buggies. He and the other employes of Raterman Luth received the buggies at Temple in their original packages in which they were shipped, unloaded them from the cars, placed them in a house rented by him, and put them together. Defendant peddled out these buggies through Bell County in the following manner: He hitched his team to a buggy and drove through the country from place to place offering the buggies for sale. Sometimes he trailed another buggy behind the one in which he was riding. His sales were made for cash, or partly for cash and partly on time. Where he sold for cash the money was remitted to Raterman Luth, at Cincinnati. When he sold on time he took notes for the balance of the purchase money, payable to Raterman Luth, in Cincinnati, and sent these notes to them. When sales were made of a buggy he had with him, he delivered the buggy at the time of the sale to the purchaser. If he found a person who wanted a different kind or a different priced buggy and he had one of that description in stock in the house where he stored the buggies, he delivered it to him, the money and notes being remitted to his employer in the manner pointed out above. If he had no buggy in stock suitable to the wants of those to whom he was trying to sell, he would take his order for the kind of vehicle he wished and send it to his employers, who shipped one of that description to him, which he delivered the purchaser, remitting the money and notes in that instance as above stated. The principal sales made by him, *93 however, were from the buggies he carried around and delivered at the time of sale. Neither defendant nor Raterman Luth had any place of business in Texas. The only place they had was the house mentioned above, which was rented for a month in which to temporarily store their vehicles while they were being peddled out. Defendant had no interest in the buggies whatever, and in all the matters above mentioned acted as their agent. He stopped in one county only long enough to sell buggies on hand, when he moved to another.
Counsel for appellant in their able brief insist the conviction can not be sustained, because the occupation tax levied on peddlers, as applied to him, is violative of what is known as "interstate commerce," and cite in support thereof the cases of French v. State, 42 Tex.Crim. Rep.; Kirkpatrick v. State, 42 Tex.Crim. Rep.; Leisy v. Hardin,
In 1896 this question was presented to Judge Maxey, in the United States Circuit Court for the Western District of Texas, in Preston v. Finley, 72 Federal Reporter, 850. The State had imposed an occupation tax of $500 upon all persons selling or offering for sale certain illustrated papers, like the Kansas City Sunday Sun. The publisher of the paper applied for an injunction to restrain the Comptroller from the enforcement of the tax, alleging that he was a citizen of the State of Missouri, and the tax was invalid for the reason, among others, that it was levied upon an interstate traffic in which he was engaged. Judge Maxey reviewed all of the leading cases upon the question, including Leisy v. Hardin, supra, and held the tax was a valid exercise of the legislative authority of the State, and the question should be controlled by the principles laid down in Emert v. Missouri, supra; Machine Company v. Gage, supra, and others.
In the able brief of appellant's counsel the insistence is urged that having occasionally and incidentally sold buggies upon orders, for which he would not be liable to be taxed, as he sent his orders in to his employers, and the buggies were shipped upon said orders, he therefore would be relieved of the charge of which he was convicted, to wit, of peddling buggies. We understand the Emert case, supra, to settle this contention against appellant.
We note, in the able brief filed for the State by Banks Cochran, among other authorities cited, the case of State v. Sneddy, 128 Missouri. In that case defendant was the agent of the American Harrow Company, a citizen of Michigan, and was convicted of peddling their machines without having paid an occupation tax. The harrows were shipped to defendant from Michigan to Missouri, he loaded the harrows on wagons and sent them through the country. In some instances the harrows so carried were sold outright; in others, a written order for one harrow was taken, and the harrow in the wagon immediately delivered to the purchaser; at other times a written order was taken, defendant returned to Mansfield, where he loaded another harrow, and delivered it to the party who made the order. It was contended that this constituted interstate commerce, and that the peddler's tax was void. The Supreme Court of Missouri used this language: "It is sufficient to say, without going over the same ground, that all of these questions were passed upon by this court in the opinion delivered by McFarland, J., in State v. Emert, 105 Missouri, 241, and each one of them ruled adversely to the contention of the defendant. That case his since been affirmed by the Supreme Court of the United States, and as the facts therein were on all-fours with the facts in this case, it is controlling authority in this case." We therefore hold, that it *96 would make no difference if appellant did occasionally take an order, send the same to his nonresident employer to be filled, and the buggies shipped to Texas. He may be a drummer and also a peddler. The facts of this case clearly show he was a peddler under the decision in Emert's case, supra.
The Supreme Court of Maine, in State v. Montgomery, 43 Atlantic Reporter, 13, where one was prosecuted for failing to pay a peddler's tax, held there was no doubt as to appellant's immunity from the tax, so far as the sale of the pictures was concerned, because he had previously taken the orders for these, sent them to his house to be filled, and they had been sent to him for delivery; but when, in addition to delivering the pictures so ordered, he undertook to sell, from place to place, certain frames which had also been sent to him by his house, the court below drew a distinction, and held that, under the rule laid down in the Emert case, he then became an itinerant peddler, and was subject to payment of the license tax exacted by the city. See also, May v. City of New Orleans, Sup. Court U.S., May, 1900.
Since the Act of 1899, peddlers of buggies have been required to pay an annual occupation tax of $250, to the State. Our statute is in all respects similar to the statute passed upon in the Emert case, supra, with this addition; our statute goes further and requires the collector to issue a license, without which a peddler can not pursue his occupation. The act in reference to the license is authorized by article 5055, Revised Civil Statutes, as follows: "The Comptroller shall cause occupation tax receipts for each occupation to be printed, with his signature, for all occupations payable to the collectors, annual receipts for those that are paid annually, and quarterly receipts for all that can be paid quarterly; such receipts shall state the name of the occupation and the amount of the tax, and have blanks for the year, month, and name of license, and also have a blank space for signature of the collector; these receipts shall each have a stub attached, stating briefly the substance of the attached receipt, and shall be bound in books; and he shall forward to each collector a proper number of said receipts, and charge him with the amount represented therein, and cause him to account therefor. The collector, whenever collecting any occupation tax, shall fill the blanks in the receipt and stub by writing thereon the time for which he collects and the name of the license, and shall sign the receipt and stub officially, and no person shall pursue any occupation unless he has a receipt, signed, as herein provided, by the Comptroller and collector; and every person, firm, or corporation keeping an office or having a local place of business shall keep posted up in a conspicuous place his or their said licenses."
Appellant was prosecuted under article 112 of our Penal Code, which 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 no more than double that sum." *97
Reverting now to the facts of this case, it will be seen that appellant had the goods shipped to him in Bell County, from his employer, in the original packages; and that the same were taken out of the original packages, and then the buggies were placed together in proper shape; and appellant then proceeded over the country, selling these buggies, without having paid the peddler's occupation tax. These facts make appellant guilty of violating the law, and are sufficient to sustain the conviction. The judgment is affirmed.
Affirmed.