
    Aulanier v. The Governor.
    Appeal from Galveston County.
    The tax imposed upon retailers of spirituous liquors by the 4th section of the act of April 26,1846, “To raise a revenue,” etc., is a license tax, and its collection as such is provided for by the 29th and 80th sections of the act of the 13th May, 1846, “ To provide for the assessment and collection of taxes.” Both acts are constitutional.
    A person acting as an officer, under color of a commission, is de facto such officer, until ejected by a proceeding having that object directly in view; and his author, ity cannot be questioned in a collateral way. His official acts, until ejected, are valid. [9 Tex. 654.]
    It is a well settled rule that where a good cause of action is shown, and the exception is only to the person of the plaintiff, it can only be sustained by a plea showing who is the person really entitled to be plaintiff. [12 Tex. 112; 25 id. 473.] When a cause is taken by appeal to the district court, if the court a quo had not jurisdiction, the appellate court could have none. [2 Tex. 196; 3 id. 158; 9 id. 313; 10 id. 216; 23 id. 104.]
    The district courts have original jurisdiction for the recovery of sums due for license tax, whatever may be the amount in controversy. A justice of the peace has no such jurisdiction. [3 Tex. 158; 9 id. 544 ; 28 id. 230.]
    The suit should be brought in the name of the state. Qumre, Can it be brought in the name of the governor ‘
    The suit in this case was for the recovery of a license tax. The facts are stated in the opinion of the court.
    Alexander, for appellant,
    contended:
    1st. That the legal right to taxes or penalties for failure to pay is vested in the corporation aggregate known as the state of Texas, and not in the corporation sole designated as the governor of the state of Texas.
    2d. The warrant does not specify any taxes or the penalties for a failure to pay, and hence is insufficient.
    Bd. The statement of facts shows that the appellant kept the “Eagle Hotel,” and that being an inn-keeper he could not beheld liable for beeping a boarding-house.
    4th. If the’ appellee relies upon the acts above cited that they are unconstitutional, i. e., repealed by new constitution.
    
      5th. If he relies upon the late acts of the state of Texas, it is held that sections 29 and 30 of the “ act to provide for the assessment and collection of taxes ” have no reference to the “ act to raise a revenue by direct taxation.”
    6th. That each of these acts is unconstitutional.
    7th. There was no assessor and collector to whom the state taxes might be paid.
    First. He only may be plaintiff in whom the legal right is vested. 1 Chit. PI. p. 1. The state of Texas (the constitution of which limits and defines the powers and rights of its various departments) has never been divested of its legal right to taxes, nor has the governor been vested with the power to sue for, or under any circumstances to collect them. In the constitutional distribution of official duties the assessment and collection of taxes has been assigned to another officer. Const. Gen. Prov. sec. 29. This amounts to a negation of the right to collect taxes on the part of all other state officers.
    Second. Upon reference to the warrant it will be seen that suit is not brought for a license tax or taxes, nor for the penalty of a failure to pay the same for an alleged period of time, but for one hundred dollars “ damages.” The judgment of the district court is not in conformity to the warrant — it is for “damages.”
    Third. The license tax for innkeepers would necessarily include that for keeping a boarding-house. The defendant is proved to have kept the “Eagle Hotel;” but it must be observed that there neither was, nor is, any license tax for keeping a boarding-house.
    Fourth. The state of Texas is a government of limited powers. The constitution authorizes the legislature to impose taxes, but not licenses. The laws of the republic above referred to conflict in that particular with existing constitutional restriction. As some of the objections to the constitutionality of the laws of the republic are identical with those to be urged against the late acts of the state, they are omitted under this head.
    Fifth. Sections 29 and 30 of the late act of May 13, 1816 (p. 357) cannot be construed to refer to the “ act to raise a revenue by direct’ taxation ” of the same year, p. 146. That law did not have effect at that time; nor, indeed, was it intended to be in force until the 1st of August ensuing, and it does not contain the word license in either its body or title; while the law of February 5, 1842 (if any such law could be — if unrepealed by the constitution of the state) was then in force. It opposes licenses <30 nomine, and is clearly the law to which those sections have reference.
    Sixth. If, however, the act to raise a revenue by direct taxation of 1846 (p. 147) is the law referred to, it conflicts with the 27th section of the general provisions of the constitution. This section requires that taxation shall be equal and uniform throughout the state, and that all property shall he taxed in proportion to its value.
    Upon examination it will appear that the saving clause with which it concludes, in favor of agricultural and mechanical pursuits, is repugnant to the body of the section, and therefore void. 1 Bl. Gom. p. 77.
    It is not a “ proviso,” for it imports no condition. See Bouv. Law Die. tit. Proviso, and the cases there cited. Upon reference to the1 statute it will be observed that it follows the exceptions of the saving clause and hence must share its fate. Besides, such “ occupations ” as are taxed are not taxed uniformly, nor at an equal rate. In addition, it seems that a man’s occupation or pursuit is his property, and, as such, that it should be taxed in proportion to its value.
    Say’s Political Economy, book 1, ch. xiv. p. 134.
    Taxes upon “ occupations ” are taxes upon industry (or as the politico-economists term it “ labor ”), and to comply with the constitution, should be uniform and equal, and in proportion to the value of the occupation, estimated from its yield, as well as of the other property of the tax payer.
    A man who combines labor with capital for the purpose of keeping a house of public entertainment is an innkeeper. . One who unites industry with capital in the prosecution of buying and selling goods is a merchant; while he who unites labor with capital for the cultivation of the soil is a farmer. Analysis teaches.us that the ordinary pursuits or occupations of life differ only in the objects with regard to which human labor and capital are employed.
    By this law the individuals engaged in all pursuits (i. e. polls) and their capital, whether in the form of hotels, stores, merchandise or .real estate, are taxed in conformity to the constitution; while the labor with which that capital is combined, in the case of the innkeeper and the merchant, is taxed at a rate that is neither equal nor uniform, without any regard to its value or profit, and in the case of the farmer, is not taxed at all.
    The same grounds may be maintained in regard to the act of February 5, 1842.
    Again, the repealing clause of the act of the state under consideration is not expressed in its title. It is a law embracing more than one object; hence the repealing clause and the whole act is void. The repealing clause is a fortiori' void, if in repealing “ parts of laws ” it amends the act of February 5, 1842, and perhaps others, without reenacting and publishing the rest of them at length. Vide Const. Gen. Prov. secs. 24 and 25.
    The act of May 13, 1846 (secs. 29 and 30, p. 357), also conflicts with all of the sections of the constitution heretofore referred to. It imposes the taking out of a license (which is not authorized by Const. Gen. Prov. sec. 27) and a penalty for a failure to pay a license tax, which are distinct objects, neither of which are expressed in the title; and it amends some former law without re-enacting or incorporating the act amended, or indeed designating it with precision.
    Seventh. The court may judicially notice that the legislature has not directed how the assessor’s and collectors are to be appointed; but that they have directed that they shall be elected by a popular vote. Const. Gen. Prov. sec. 29; Acts of 1846, p. 347.
    The constitution recognizes a distinction between an appointment and an election. Gen. Prov. sec. 3. In common parlance these words are not synonymous. If the constitutional provision concerning assessors and collectors is taken in its plain, obvious and legitimate import, the people have no more right to elect assessors and collectors than the governor has to appoint representatives in the legislature for the various counties of the state, or to collect the revenue. Wherefore the appellant asks that the judgment of the court be reversed, etc.
    
      Duval, representing the Attorney General, for appellee.
    The only point raised by the bill of exceptions is grounded upon the refusal of the court below to admit proof that Sundberg was not duly qualified according to law, as assessor and collector. We contend that such a refusal was proper. For, inasmuch as Sundberg produced his certificate of election, as well as his commission, and also proved that he had acted as such assessor ever since the 1st day of August previous, his authority could not be questioned, but was conclusive.
    It is held in England in the case of revenue officers, where the question is whether they are such officers, proof of being reputed to be so, or having exercised the office, is good evidence of the fact. Phil. Ev. p. 170.
    And it has been decided in the United States that an officer of the customs, duly commissioned and acting in the duties of his office, is presumed to have taken the regular oath. United States v. Bachelder, 2 Gallis. p. 15.
    As regards the agreement shown by the record to have been made by the counsel of the parties in the court'below, we say that nothing therein contained, as coming from the state, can prejudice the rights of tbe state, because the attorney general was precluded by law from making any snob prejudicial agreement or admission. Laws of the State, p. 208, sec. 14.
    We will not, therefore, examine any questions which may be presented by said agreement.
    It may be contended on behalf of the appellant that the justice’s court liad not jurisdiction over this case, and that the same was exclusively cognizable by the district court.
    JBut it is now too late to raise this objection. It should have been urged either before the justice’s or district court. Besides, supposing the justice’s court had not jurisdiction, the case was appealed to the district court, where it was tried de novo, which had the same effect as if the suit had originally been brought in the latter.
    No exceptions having been taken to jurisdiction in either court, it is tobe presumed that this objection (if any such exists) was waived.
    But we contend that justices’ courts have jurisdiction over such cases. The district courts being invested with original jurisdiction only, and not exclusive, over such cases, the fair inference is that some other courts have concurrent jurisdiction with them; and no other courts, under our laws, can have such concurrent jurisdiction except the justices’ courts. Acts, p. 200, sec. 2; Acts, p. 302, 307, secs. 13, 29.
    Another objection taken by appellant 'is that the suit should have been brought, in the name of the state of Texas, and not of the governor.
    This is also an objection which should have been made in the courts below. But even there it could not have been sustained, because the governor of the state represents the state and the suit being brought in his name as governor, it must be presumed to be for the use and benefit of the state. The principle is well settled that a person for whose use a suit is brought is the real plaintiff.
    Another ground of objection is that the warrant issued in this case by the justice is vague and indefinite; that it does not specify the amount of the penalty incurred or the time during which the defendant sold without license.
    In answer we contend that the latter objection was remedied upon the trial because the defendant admitted the time during which he had thus sold. The former has no force in it, because the law itself, upon which the proceeding was based, fixes the amount of the penalty and it is not necessary to state or plead what the law is.
    
    The above are all technical objections, and courts of a higher jurisdiction are always liberal in relation to the proceedings had before justices of the peace. If technical objections were listened to and enforced with strictness, the proceedings of these courts would rarely, if ever, stand the test.
    In seeking to reverse the case the appellant appears to rely greatly upon constitutional grounds. He contends that the legislature was authorized to impose taxes, but not licenses, and that the statutes both of the state and late republic, upon which the present suit was based, are in violation of that part of the 27th section of the “general provisions,” which requires that all taxation shall be equal and uniform throughout the state.
    He further contends that the legislature had no right to tax certain occupations or professions to the exclusion of others, and says that such as are taxed 'are not taxed uniformly or at an equal rate.
    We will not argue the question as to the right of those who framed the constitution to discriminate between persons pursuing different occupations, in the imposition of taxes upon them. Such right exists in all governments. The same distinction has been made and similar provisions are found in many of the state constitutions.
    The legislature of Texas has carried out, as far as possible, the principle of equal and uniform taxation as required by the constitution.
    All the individuals belonging to a particular class or pursuing a particular profession have been taxed equally and uniformly, and this is all the constitution required.
    It is easy enough to lay down an abstract principle (the justice of which all will assent to) to serve as the basis of a system of taxation, but when that system is devised and vitality given to it, its practical operations will inevitably conflict in some respects with the cardinal principle upon which it is based. All that can be expected in any system of taxation is, as near an approximation to equality and uniformity as the nature of things will permit.
    It is true that the constitution and laws of the state do not directly create a license tax, but we contend that the power to tax includes the power to license. The 29th and 30th sections of the state act providing for the assessment and collection of taxes, in speaking of a license tax, refer to the state act to raise a revenue by direct taxation; and also, to the act amending “An act to ráise a revenue by direct taxation,” approved February 5,1842. Act of State, p. 347, and Act of State, p. 146, and Act of the Republic, vol. 6, p. 106.
    The last act referred to imposes in' direct terms a license tax, and has not been repealed, except so far as its provisions-' come in direct conflict with the acts of the state. .The latter do not change it except as to tbe amount of tbie tax, and the penalty imposed for its non-payment.
    Now, the three acts mentioned being in pari materia, referring to the same subject, must be construed together so that they may have a concurrent efficacy, and the intention of the legislature be carried out. 1 Bl. Com. p. 63. When so construed no difficulty will be found in making the proceedings had in this case harmonize with the law.
    It will plainly appear that under the law a license tax still exists, and must be paid by those pursuing certain occupations, though the amount of that tax and the penalty imposed for its non-payment may have been altered by the law of the state.
    It is contended by the appellant that there is an evident absurdity, in making the act of the thirteenth May, 1846, refer to that of the 28th April, of the same year, in this, that the latter was not to take effect until after the first August, 1846, while the taxes therein imposed were to be ascertained and assessed under the provisions of the 5th section of the former, between the first days of March and July in each year.
    In reply to this, so far as the license tax in question is concerned, we say that it required no assessment — the law itself, fixed its amount, and the proper officer had nothing to do but to collect from the proper persons after the first August, 1846.
    In conclusion: It is a rule of construction of - tax laws or revenue acts, universally acted upon by the courts, always to lean in doubtful cases in favor of the revenue. 1 Bl. Com. p. 242, note 50. The rule is founded upon good policy and the public interests, more especially when we consider that disputes as to the legality, meaning and effect of revenue laws most generally arise in consequence of attempts made to evade them, and such we believe to be the character of the cases now before the court.
    
      FrankVm, for appellant,
    in conclusion.
    The tax on licenses is a specific tax and not on the person authorized by the constitution. The principle of specific taxes was rejected ] by the convention that framed the constitution.
    The tax authorized by the constitution is a tax on the persons pursuing any “occupation, trade or profession,” not agricultural or mechanical; but with this restriction, that taxation shall be equal and uniform throughout the state.
    The phraseology of the 29th and 30th sections of the act to provide for the assessment and collection of taxes (p. 357) is retrospective, and refers to laws that were in force at the time it went into effect on the 25th June, 1846, to wit, to the act of 1841-2 (Pamp. L. p. 106, sec. 1), which was then in force, and was not repealed until the 1st of August, 1846, when it was repealed by the act to raise a revenue by direct taxation (p. 146, sec. 6), and consequently can have no reference to the direct taxes imposed by the direct tax law.
    If the 29th and 30th sections are to be considered as creating a penalty and authorizing the penalty to be collected, then we hold that imposing the penalty and collecting the several penalties is legislation not authorized by the constitution under the title of the act, “To provide for the assessment and collection of taxes.”
    The act of 28th of April imposed the tax which every inhabitant of the country was liable to pay, and the proviso of the act of the 13th May was limited to the assessing and collecting the taxes imposed by law, and not to imposing new taxes, creating penalties and authorizing the collection, not of the taxes imposed by law of 28th April, but penalties by the act of 13th May. It would require a distinct and substantive act of the legislature to create penalties and authorize their collection, and the caption should show the object of the law.
    The taxes imposed are not equal and uniform. It does not embrace all persons liable to pay taxes. It is a law violating sections 2, 16, 21 of the bill of rights.
    The law is partial — operates on one citizen and not upon others — and is not “the law of the land,” operating on all and affecting every citizen equally. Vangent v. Waddel, 2 Yerg. 260; Walley’s Heirs v. Kennedy, 2 id. 554; State Bank v. Cooper et al. 2 id. 599. The very frame and theory of our government repudiates the idea of “ distinct classes.”
    The judgment should be reversed because the magistrate or justice •of the peace had no jurisdiction of the cause. Article 4, section IT, Constitution of the State; Acts of Legislature p. 302, secs. 13 and 29.
    Mr. Franklin also referred to sections 5, 16 and 17 of the act to provide for the assessment and collection of taxes, Laws 1846, p. 347; and to the 2d section of the act to organize the district courts, etc., p. 200; and to the 13th and 29th sections of the act to organize justices courts, etc., p. 298.
   Lipscomb, J.

This case comes before us on an appeal from the district court of the county of Galveston. Proceedings were commenced against the appellant before a justice of the peace, in the name of the governor, to recover the penalty of one hundred dollars, for selling spirituous liquors in less quantities than one quart, without having obtained a license. The jury returned a verdict for the defendant, and an appeal was taken to this court.

There was a bill of exceptions to the decision of the judge, in refusing to permit evidence that the tax collector for Galveston county was not duly elected, and had not given bond as required by law. The statement of facts agreed to shows that the defendant in the court below demurred to the action, and moved for an arrest of judgment and a new trial. It also appears on proof that the certificate of the election had been given by the proper authority to the collector, and that he had acted as collector since the 1st day of August. It was admitted that the defendant was occupied in the retail of spirituous licpiors in less quantities than one quart — that he had paid no license tax, and that he was so occupied in the county of Galveston.

In the 4th section of the act to raise a revenue (Acts of Last Session p. 147) is found the following provision in the enumeration of taxes imposed; “also of each and every such establishment.”' It is under this law that the tax is claimed. In the 29th section of the act to'provide for the assessment and collecting taxes (page 347) will be found the following enactment: “That if any person or persons wish to engage in any vocation or calling upon which a license tax has been imposed by law, such person or persons shall before engaging thereon pay to the assessor and collector of the county in which such vocation or calling is intended to be pursued, the amount of tax imposed upon the same for the use of the state, and obtain a receipt therefor; which receipt, upon being presented to the county clerk, shall entitle such person or persons to a license to pursue such vocation or calling for twelve months and- no longer,” etc. And in the 30th section of the same act, it is provided: “That if any person shall' fail or refuse to pay the amount of tax before engaging in any vocation or calling, and obtaining license therefor, according to the provisions of the preceding section, such person shall forfeit and pay double the amount of such license tax, for each and every month which such person or persons shall continue to engage in such vocation or calling,. to be recovered in any court of competent jurisdiction,” etc.

The first objection raised to the tax under these provisions is, that* the first act referred to does not impose a license tax, and that the- act. providing for the collection of taxes cannot enlarge the first and¡ bring in a new subject of taxation. It is true that the first act doss-not impose a license tax, eo nomine, but when it is seen to be, a.tax: on the occupation and that the last act is only providing for the .collection of the tax imposed by the first, there is no ambiguity in the-terms of the last act; and it must by the most reasonable.a»d..naturaL construction, when it uses the term license tax for pursuing an occupation or calling, refer to the same subject of taxation named in the first. Revenue laws are always construed most liberally to effect the end and aim of supplying the government the means of sustaining its existence; bnt we do not believe that it is necessary in this case to invoke a liberal construction. The meaning, when the two laws are taken together, is clear and conclusive. It is contended, however, that if the two acts of the legislature referred to can be construed to mean the tax sued for, they are void, because in-contravention of the provisions of the 27th section of the general provisions of the constitution of the’State. It is in the words following: “Taxation shall he equal and uniform throughout the state. All property in this state shall be taxed in proportion to its value, to be ascertained as directed by law, except such property as two-thirds of both houses of the legislature may think proper to exempt from taxation. The legislature shall have power to lay an income tax and tax all persons pursuing any occupation, trade or profession; provided, that the term occupation shall not he construed to apply to pursuits either agricultural or mechanical.” The word property, as used in the constitution, cannot by any forced, construction be tortured into meaning an occupation, calling or profession; and if the first part of the section can have any control over the exercise of the .power of the legislature at all, it is in this way: that it would restrain the enactment of a law which would make a difference at different places within the state on the‘tax imposed on the same occupation. This has not been done in the assessment law we have referred to; bnt it is said the proviso in the’'concluding part of the section is repugnant to the body of the section, and is therefore void. If this were admitted it would not be possible for the defendant to derive any advantage from the concession, because if so, it would only expose the excepted occupations to be taxed, should the legislature be disposed to do so. But this is not the effect of the proviso; it is not repugnant to the body of the section; it only qualifies and limits it. If the proviso has been repugnant to the body of the section so that it would destroy its effect and leave nothing operative in it, then the proviso would he void by the rule that it is not to he supposed that the main object of the act was intended to bo defeated; and if both cannot be sustained the proviso must yield; bnt the great object of the section can remain with full effect and give effect likewise to the proviso. We have no doubt of the constitutionality of the two acts first cited and that they are entirely reconcilable.

The point growing ont of the refusal of the court below to receive testimony, to show that the collector of taxes for the county of Galveston had not been duly elected, and had not given bond as required by law, will not require much consideration. The facts show that he had been commissioned as collector, and that he had acted as such from the first day of August preceding. Acting as an officer under color given by the commission made him such, de facto> until ejected in a proceeding having that object directly in view; and his authority would not be questioned under such circumstances in a collateral way. His official acts would be valid and he could legally collect the taxes and give receipts for the same.

Another objection made by the appellant is as to the party plaintiff. He contends that the governor had no' right in his own name to sue for the penalty accruing on a failure to pay the tax imposed. If this objection had been fairly presented, we should be inclined to give it our sanction. There is.no law authorizing such suits to be brought in the name of the governor, and in the absence of such authority we strongly incline to the opinion that the suit ought to be in the name of the political corporation, “ the state of Texas.” It is, however, a well settled rule, that when a good cause of action is shown and exception only to the person of the plaintiff, it. can only be sustained by a plea showing who is the person really entitled to be plaintiff; but as this point, in the view we shall take of another, is not essential in giving our judgment, we do not wish to be considered as expressing a decided opinion.

The last objection is that the justice of the peace had no jurisdiction to try the case. The constitution of the state, in section 17 of the judicial powers, declares that “Justices of the peace shall have such civil and criminal jurisdiction as shall be provided for by law.” It is then to the acts of the legislature, under this provision in our constitution, we must look for the definition of their civil and criminal jurisdiction, because whether the effect of the constitution would be to divest the justices of the peace of jurisdiction, given to them by the laws of the republic or not, is not material; because all such laws were repealed by the act of the legislature to organize justice courts and to define the powers and jurisdiction of the same. See Acts, p. 298. The 13th section of the above act and the 28th section of the same defines the jurisdiction of justices of the'peace. The 13th declares “ That justices of the peace shall have jurisdiction over all suits and actions for the recovery.of money on any account, bill, bond, promissory note or other written instrument; or for specific articles when the amount or value does not exceed one hundred dollars, exclusive of interest, costs and damages.” It is very clear that tins section does not give jurisdiction for the penalty in the case we have under consideration. We will proceed to the 28th section and see if that gives the jurisdiction claimed. It is in the words following, “That justices of the peace of this state shall have and exercise jurisdiction over all actions for torts, trespasses and other injuries, as well to persons as to property, sounding in damages where the damages claimed do not exceed one hundred dollars.” It will be seen that this section relates wholly to actions sounding in damages, and cannot be extended to a fixed and specific penalty. It will also be seen by reference to the 2d section of the act to organize the district courts and define their powers and jurisdiction (p. 200), that the distinct courts have jurisdiction “of all suits in behalf of the state to recover fenalties,fo?feitures and escheats.

But it is said that although the justices of the peace had not jurisdiction, yet when the case was taken by appeal to the district court — that court would retain it. In answer we will- only say that when the cause was taken by appeal to the district court, if the court a quo had not jurisdiction, the appellate court could have none. The suit should have been brought in the district court. That court had original jurisdiction; the justice of the peace had none. To sum up, our conclusion is that the license tax is legally imposed and recoverable, if the suit be brought in the district court in the name of the state. Of this we have no donbt. We incline to the opinion that it ought not to be in the name of the governor. The principle of this opinion embraces the case of Hasbrook v. The Governor. They will both be reversed.  