
    Ex parte BOCKHORN.
    (Court of Criminal Appeals of Texas.
    June 21, 1911.)
    1. Licenses (§ 7) — Taxation—Statutes—Validity.
    Acts 25th Leg. 1st Called Sess. c. 18, art. 5049, subd. 39, providing that from every person, firm, agency, or association of persons dealing in" sewing machines an annual tax of $15 to the state and $7 to the county in every county where such business is carried on shall be paid, provided that a merchant who pays an occupation tax as required by the act shall not be required to pay the special tax to sell sewing machines when sold in his place of business, and also levying a tax of $3 upon merchants for the state, with a tax of $1.50 for the county was in violation of Const, art. 8, §§ 1, 2, for inequality and nonuniformity.
    [Ed. Note. — For other cases, see Licenses, Cent. Dig. §§ 7-15; Dec. Dig. § 7.]
    2. Statutes (§ 63) — Unconstitutional Statute — Effect.
    Since an unconstitutional act is void from its inception, neither conferring rights, imposing duties, nor affording protection, Acts 25th Leg. 1st Called Sess. c. 18, art. 5049, subd. 39, imposing a license tax on sellers of sewing machines, unconstitutional in its inception as discriminating and nonuniform was not rendered valid by the subsequent’ repeal of the part of the act rendering it unconstitutional by Acts 30th Leg. c. 35.
    [Ed. Note. — For other cases, see Statutes, Dec. Dig. § 63; Constitutional Law, Cent. Dig. § 47.]
    Appeal from Washington County Court; W. R. Ewing, Judge.
    Habeas corpus, on petition of Fritz Bock-horn. From an order denying the writ, relator appeals.
    Reversed, and relator discharged.
    • Mathis & Teague, for appellant.
    C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other oases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   DAVIDSON, P. J.

Relator was tried and convicted in the justice court under a complaint charging him with following the occupation and pursuing the business of selling sewing machines without first having paid an occupation tax. 1-Ie resorted to a writ of habeas corpus before the county judge to test the constitutionality of the act of the Legislature levying the tax. Upon a hearing the county judge remanded relator to custody. From that judgment, this appeal is prosecuted.

The provision of the act of the Legislature (Acts 25th Leg. 1st Called Sess. c. 18, art. 5049, subd. 39) levying this tax is in the following language: “From every person, firm, agency or association of persons dealing in sewing machines, an annual tax of fifteen dollars to the state and seven dollars as a county tax in every county where such business may be carried on: Provided, that a merchant, who pays an occupation tax as required by this act, shall not be required to pay the special tax to sell sewing machines when sold in his place of business.” The same act of the Legislature levied a tax of $3 upon merchants for the state, which authorized $1.50 for the county.

The contention of relator is that this act is unconstitutional and discriminating. The Constitution provides that all occupation taxes shall be equal and uniform upon the same class of subjects within the limits of the authority levying the same. Article 8, §§ 1 and 2, of the state Constitution. We deem it hardly necessary to cite authorities to sustain relator’s contention, under the numerous decisions of this court on similar legislation. Such legislation has been held to be unconstitutional in Rainey v. State, 41 Tex. Cr. R. 254, 53 S. W. 882, 96 Am. St. Rep. 786; Ex parte Japan, 36 Tex. Cr. R. 482, 38 S. W. 43; Owens v. State, 53 Tex. Cr. R. 105, 112 S. W. 1075, 126 Am. St. Rep. 772; Ex parte Overstreet, 39 Tex. Cr. R. 474, 46 S. W. 825.

It may be that the county judge held relator upon the theory that the tax upon merchants has been repealed by Acts 1907, p. 57. An inspection of that act will disclose the fact, we think, that the occupation tax upon merchants spoken of was repealed. However, the repeal of the merchants tax in 1907 would not render an unconstitutional act constitutional. An unconstitutional statute is void from its inception. The act of the Legislature which relator was arrested for violating, if unconstitutional at the time of its passage, would not be rendered constitutional 'by some subsequent act of the Legislature repealing the occupation tax upon merchants, and such repeal would not impart validity to the prior unconstitutional act. Cooley’s Constitutional Limitations (7th Ed.) p. 259; Norton v. Shelby County, 118 U. S. 443, 6 Sup. Ct. 1121, 30 L. Ed. 198; Boales v. Ferguson, 55 Neb. 565, 76 N. W. 18; Finders v. Bodle, 58 Neb. 57, 78 N. W. 481; Seneca Min. Co. v. Secretary of State, 82 Mich. 573, 47 N. W. 25, 9 L. R. A. 770; State v. Tufly, 20 Nev. 427, 22 Pac. 1054, 19 Am. St. Rep. 374.

Mr. Cooley, in his work fin Constitutional Limitations, uses this language: “When a statute is adjudged to be unconstitutional, it is as if it had never been. Rights cannot be built up under it. Contracts which depend upon it for their consideration are void. It constitutes a protection to no one who has acted under it, and no one can be punished for having refused obedience to it before the decision was made.”

In the ease of .Norton v. Shelby County, supra, Justice Field, of the Supreme Court of the United States, says in regard to an unconstitutional statute: “It confers no rights. It embodies no duties. It affords no protection. It creates no office. It is, in legal contemplation, as inoperative as though it never had been passed.”

In the case of Boales v. Ferguson, supra, the court uses this language: “The Baker law was enacted in violation of the Constitution. It was never enforced, and the decision of this court, in Trumble v. Trumble [37 Neb. 340, 55 N. W. 869], was a mere judicial declaration of a pre-existing fact. The court did not annul the statute, for it was already lifeless. It had been fatally smitten 'by the Constitution at its birth.”

In the case of Seneca Min. Co. v. Secretary of State, supra, in passing on this question, the court said: “If the lawmaking' power is prohibited from enacting a law, and in disregard of such prohibition it goes through the forms of enacting a law, such enactment is of no more force or validity than a piece of blank paper, and is utterly void, and powers subsequently conferred upon the Legislature by an amendment to the Constitution do not have a retroactive effect and give validity to such void law.”

In the case of State v. Tufly, supra, it was said: “An act of the Legislature which is not authorized by the state Constitution at the time of its passage, is absolutely null and void. It is a misnomer to call such an act a law. It has no binding authority, no validity, no existence. It is as if. it had never been enacted, and is to be regarded as never having been possessed of any legal force or effect. The act being void, no subsequent adoption of an amendment of the Constitution authorizing the Legislature to provide for such investment would have the effect to infuse life into a thing that never had any existence.”

If we hold that the repeal of the statute levying an occupation tax on merchants imparted validity to the statute levying the tax upon sewing machine dealers, then it would impart validity as well to the statute levying a tax upon buyers of wool and hides, which statute was held to be unconstitutional in the case of Rainey v. State, supra. Under such holding any act that was unconstitutional, and declared to be by the courts, could be vitalized and held constitutional by reason of some subsequent act of the Legislature, which removed the difficulty either directly or indirectly. This could not be justified under any rule of construction. Where-ever the act is unconstitutional, it is void. This act was clearly unconstitutional, -and has not been vitalized by the subsequent repeal of the tax on merchants.

The judgment is reversed, and relator is ordered discharged.  