
    John D. Blackford & Co., v. The State.
    Persons associating themselves as real estate brokers, distributing cards, and opening an office and soliciting business as such, are liable to the penalty prescribed by the Code, 704, if they fail to take out license as real estate brokers. >
    FROM HAMILTON.
    Appeal from the judgment of the Circuit Court of Hamilton county, November Term, 1872. John B. Hoyle, J.
    Trewitt & Sharp for the plaintiffs argued that:
    1. The ' only material question in the case is, whether the plaintiffs in error are liable for the tax assessed against them as real estate brokers or agents for the year 1871?
    The plaintiffs insist, that the charge of the court is erroneous in this; the court instructed the jury that a declared intention on the part of the plaintiffs in error, and preparations to act, was such “ presuming to ■ act as such,” as renders them liable to the tax. Such, we think, is not the law. Such persons are not liable unless it appear the party or parties carried on the business as a regular avocation, and the court should have instructed the jury: See Steger’s Statutes, sec. 350, sub-sec. 4, and sec. 553a, sub-secs. 6 and 7. By these sections and sub-sections, it will be seen that the business must be regularly followed as the avocation ; and the tax is fifty dollars — and one-half of one per cent, on gross sales or rents. This last provision carries with it evidence that, to charge the party, he must actually have done business: See sec. 553a, and sub-sec. 7.
    There is no distress warrant appearing in the record, and the bill of exceptions shows it contains all the evidence in the cause. Nor is there anything in the record to authorize a verdict for the amount found by the jury.
    3. There is no evidence in the record showing that any privilege tax was ever assessed by the County Court of Hamilton county, so as to enable the court and jury to find any verdict for the county’s part, or to determine the amount for which the defendants are liable, if liable at all.
    Attorney-General Heiskell for the State.
    Lewis Shepherd for the county of Hamilton said:
    This case was presented to the court and jury on the sole question whether or not the plaintiff in error, in conjunction with the other parties mentioned, was or had been exercising the privilege, without having paid the tax, and obtained the license?
    Section 704 of the Code, provides that if any person presume to exercise any privilege, without paying the tax and obtaining the license prescribed by law, the clerk shall issue a distress warrant to the sheriff, or any constable, commanding him. to levy, in a case of a privilege, a tax double thé highest tax imposed upon any privilege, etc. Sec. 550, defining what are privileges, taxable and not to be pursued without license, lays down as such privileges, sub-sec. 4, “The business of brokers of real estate carried on as a regular avocation.”
    Section 553a, sub-'secs. 7 and 8, makes the tax on brokers of real estate, $50 for State purposes: sub-sec. 71 of the same section, increases the tax on all privileges 50 per cent., making the State tax on the privilege, $75.00; the county tax for county purposes, $37.50; school tax, $9.37; clerk’s fee, $1.00; making the tax, without clerk’s fee, $120.87, which being doubled makes $243.75, the amount of the distress warrant.
    However, the amount of the tax, or the assessment by the County Court, is not put in issue in this proceeding. The sole question being, whether the fact was that plaintiffs in error had been exercising the business. It is respectfully insisted, that the portion of the charge of the court below set out in the bill of exceptions is correct. The plaintiffs in error had opened an office, put up a sign, had printed and circulated business cards; had deeds prepared with their card on them, and were soliciting business generally, and in all the ways known to such brokers. The Circuit Judge charged .that these acts made them liable to the tax. And we think his Honor was right. The language of the statute is, “ If any person presume to exercise the privilege, etc.”
    
      Only a portion of the charge is set out in the bill of exceptions, and even if there be error in the portion so set out, under a well settled rule, this Court will hold or presume that the remainder of the charge is correct, and that a charge applicable to the facts of this case was given to the jury. That being so, the Court will presume that the court charged the jury, that if the defendants below were actually engaged in the business of real estate brokers, that they were liable to the tax, etc., in addition to the charge as set out in the bill of exceptions.
    The testimony of J. H. Hardie shows that the defendants were engaged in the business. Many of the deeds they had prepared, with their advertisements on them, had been filled up, and passed through his office for acknowledgement; some of those blank deeds filled in the hand-writing of the. plaintiff in error. The witness further proves that he demanded the tax from the plaintiff in error, and he did not then seek to avoid liability, on the ground that he had no business, but because of the unconstitutionality of the act imposing the tax. Upon the whole, this was a question of fact, presented to a jury under a fair charge of the law, as the Court are bound to presume, and this court will not interfere with the finding of the jury. The plaintiff in error would have been bound to have obtained license before he could have done any business.
   Nicholson, C. J.,

delivered the opinion of the Court.

The County Clerk of Hamilton county issued a distress warrant against Blackford, Guthrie & Co., for exercising the privilege of real estate brokers at Chattanooga, without having taken out license and paid tax assessed on the privilege. Upon the issuance of the warrant and its levy on property, Blackford, Guthrie & Co., obtained writs of certiorari and supersedeas and carried the cause to the Circuit Court. They allege in their petition, that they had not acted as real estate brokers, and therefore, were not subject to the tax assessed.

The cause was tried by the jury who found, under the charge of the court, on the evidence, that the defendants were real estate brokers, and judgment was rendered against them. From this judgment they have appealed.

The error assigned for reversal is, that the court’s charge to the jury was not correct. The court charged as follows:

“That if the defendants associated themselves together as a firm to do business as real estate brokers, had their cards as such published to the world, in the newspapers and otherwise, procured an office, prepared themselves with blanks and forms of deeds, and stationery, etc., and solicited business as such real estate brokers, the same would constitute them real estate brokers, and they would be liable in this proceeding whether they did any business or not.”

By sec. 550 of the Code, the business of a broker of real estate, carried on as a regular avocation, is declared to be a privilege and liable to taxation, and not to be carried on without a license. By sec. 553, sub-see. 7, brokers of real estate, including all contracts for rents, carried on as regular business, shall pay privilege tax, etc.” By see. 702, “licenses for exercising all the other privileges specified in sec. 550, shall be issued on the applicants paying to the clerk the specified tax laid thereon,” etc., and by sec. 704, “if any person presume to exercise any privilege without obtaining the license prescribed, the clerk shall issue, etc. The obvious meaning of these several provisions is, that before any person shall- enter upon the avocation or business of real estate broker, he shall first apply -to the County Court Clerk and obtain a license to follow such business or occupation, and if he presume to enter upon such occupation or business, without having obtained the license, the clerk is authorized to issue a distress warrant. It is not intended .by these provisions, that the applicant is to obtain his license before he makes his preliminary arrangements for carrying on the business — such as preparing the cards, procuring blanks and stationery, and renting an office, but if after these preparatory steps have been taken, he then advertises and distributes his cards and solicits business, and does those things by which he announces that he is engaged in the real estate business, without having obtained a license, then he is presuming to exercise the privilege of a real estate broker, and is liable to the penalty of the law.

Such we understand to have been the instructions of the court to the jury, and upon these instructions, they found against the defendants. It was not meant by the law, that parties might hold themselves out for months as real estate brokers, without having license, and at the end of that time, abandon the business and avoid the tax, merely because the experiment had proved unsuccessful.

We are of opinion that the charge is free from exception, and we affirm the judgment.  