Tax Collector v. Finley, 32 S.W. 524 (1895).
Search
Tax Collector v. Finley, 32 S.W. 524 (1895). Book View Copy Cite
H. A. McMeans, Tax Collector,
v.
R. W. Finley; R. D. Byrom, Tax Collector, v. R. W. Finley
Oct 14, 1895.
32 S.W. 524
Warren W. Moore, for plaintiff McMeans. — [The discussion upon matters not considered by the court is omitted.] 1. The prize fighting statute of 1895, just passed, is unconstitutional, because the title and body contains, and is, legislation on more than one subject. It is not like the subject occupation taxes, the same subject with variations; nor like the statute against theft, that denominates as a crime an act intrinsically the same, where a person is the actor, and the variations are only the objects taken. The statute of 1895 makes separate and distinct acts, indigenous to different nations, in the performances of which the actors are moved by different impulses, a crime. A fight between man and man, as mentioned in the statute, and between a man and a bull, are different — distinctively so. So much so, that there was never a bull fight on American soil, with the exception of one recently held at Cripple Creek, Colorado; while prize fights have been of common occurrence. Prize fighting was recognized as mala in se by the common law, but plaintiff believes that a bull fight was not. One originated in Northern Europe, among English speaking people; the other, in the southern portion of Europe, among the Latin nations. And while, under different conditions, parts of statutes have been held as surplusage, it is believed, where the part sought to be so treated was a different subject, but which the Legislature had power to legislate on, that no court has undertaken to say which of the two subjects the Legislature deemed of most importance; or where there was a Constitution like ours, and a bill purported to legislate on two subjects, that a court ever held the statute unenforceable as to one and valid as to the other. 2. The defense in this case, resting if at all upon the statute of 1895, passed since the institution of this suit, and the default of the defendant being the cause of the suit and accrual of costs, in equity the costs ought to be awarded against the defendant. Perkins v. Hume, 10 Tex. 50 ; The State v. Taylor, 12 Ohio St. 130 . John W. Parker, Robt. A. John, and West Cochran, for plaintiff Byrom. M.M. Crane, Attorney-General, in an exhaustive brief and argument, supported the action of the Comptroller under the law as existing when the suits were filed. Hogg Robertson, associate attorneys for the defendant, argued: 1. That the Legislature has no right to pass a law licensing a crime within the class of mala in se. 2. That by the Bill of Rights the Legislature is limited to the passage of laws for the benefit of the people; and under section 4, article 16, of the Constitution, a fight between man and man can not be licensed. [The discussion in behalf of defendant upon points not passed upon by the court is omitted.] M.M. Crane, Attorney-General, and Hogg Robertson, attorneys for defendant, filed the following supplemental brief and argument: Since the institution of this proceeding, the Legislature has been reconvened. It has passed a law making a fight between man and man a felony. That law is now assailed. It is insisted that it is unconstitutional; first, because it is a special law; and second, because it embraces two subjects which are expressed in its title. 1. The first objection will be answered by an inspection of the statute itself. It is general in its terms, and can not be very well classed as a special statute. As to the second objection, it is submitted, that under the rules of construction adopted by this court, it is not well taken. The language of the Constitution upon which it is based is, in substance, that no bill, except the appropriation bills, shall contain more than one subject, which shall be expressed in its title. Const., art. 3, sec. 35. This provision of the Constitution has been the subject of frequent discussion. It is believed, that while the provision in question is mandatory, in its application a liberal construction obtains. If the part of the law objected to as infringing this provision can be construed as properly connected with or subsidiary to the main object of the act as expressed in the title, it is constitutional. Giddings v. San Antonio, 47 Tex. 548 ; Day Land and Cattle Co. v. The State, 68 Tex. 542 ; Railway v. Smith Co., 54 Tex. 12 [ 54 Tex. 12 ]; Breen v. Railway, 44 Tex. 302 ; Railway v. Odom, 53 Tex. 352 ; Tadlock v. Eckles, 61 Am. Dec., 339, and note; 20 Tex. 782 ; The State v. Harkinson, 14 Md. 184 ; Gunter v. L. M. Co., 82 Tex. 502 . 2. None of the provisions of a statute will be held to be unconstitutional when they relate, directly or indirectly, to the same subject, having natural connection, and are not foreign to the subject expressed in the title. The State v. Mallinson, 82 Tex. 511 . 3. A law can not be held to embrace more than one subject when the several provisions of the statute are germane to each other. Day Co. v. The State, 68 Tex. 542 . The provision that an act shall contain but one subject, which shall be expressed in its title, should be so construed as to support the validity of the act, if possible. 23 Am. and Eng. Encyc. of Law, 234, and authorities there cited. In such eases, hypercriticism is out of place. In re Haynes 22 Atl. Rep., 923. It was held by the Supreme Court of the United States, in effect, that an act entitled, \An act to incorporate the Bellville Illinois Railroad Company
Gaines.
have congruity or any connection with the subject stated in the title  |  \" and which contained a section which authorized the city of Bellville and the county of St. Clair to subscribe for stock of the company
GAINES, Chief Justice.

—These cases present substantially the same questions, and will be disposed of in the same opinion. They proceed upon the theory that article 5049 of the Revised Civil Statutes, adopted by the present Legislature at its regular session, places a tax upon prize fighting, and licenses it as an occupation. The statutes make it the duty of the tax collector of each county to issue a license for each occupation upon which a tax is levied, upon the application of any person desiring to pursue such occupation, and upon his paying the tax levied thereon; but he is prohibited from issuing such license except upon a blank furnished by the Comptroller for that purpose. It is the duty of the Comptroller to furnish him with the blanks, and it would seem that it is his right to demand the performance of that duty, and upon the Comptroller’s refusal to comply, to compel such performance by the writ of mandamus.

In the first case, the tax collector of Hays County alleges, that he has demanded blank licenses for prize fights of the respondent, as Comptroller of the State, and that the latter has refused to furnish them. He prays that the latter may be compelled to comply with his demand. In the second case, the tax collector of Williamson County alleges, that application has been made to him for a license for a prize fight, and that the State and county taxes have been tendered by the applicant; that he has demanded of the Comptroller the proper blanks, and that the demand has been refused. He also prays for a peremptory writ of mandamus to compel the officer to furnish the blanks.

The Comptroller in neither case denies the facts alleged, but claims there is no law licensing prize fighting in this State.

Since these suits were instituted, the Governor of the State has convened the Legislature for the purpose of passing a law prohibiting prize fighting, and making it a penal offense. The Legislature has met in pursuance of that call, and has passed'an act intended to effectuate that object, which, if valid, took effect from its passage. It is conceded, that if this act be operative, the writ of mandamus must be refused in these cases. But it is claimed, on behalf of the petitioners for the respective writs, that the act is in violation of section 35 of article 3 of the Constitution, and is therefore void. This presents the first question for our determination.

The constitutional requirement in question reads as follows: “No bill (except general appropriation bills, which may embrace the general subjects and accounts for and an account of which moneys areap [*521] propriated) shall contain more than one subject, which shall be expressed in its title. But if any subject shall be embraced in an act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be so expressed.” Omitting the emergency clause, inserted for the purpose of giving it immediaté effect, the statute under consideration reads as follows:

“An Act to prohibit prize fighting and pugilism, and fights between men and animals, and to provide penalties therefor, and to repeal all laws in conflict therewith.
“Section 1. Be it enacted by the Legislature of the State of Texas: That any person who shall voluntarily engage in a pugilistic encounter between man and man, or a fight between a man and a bull or any other animal, for money or other thing of value, or for any championship, or upon the result of which any money or anything of value is bet or wagered, or to see which any admission fee is charged, either directly or indirectly, shall be deemed guilty of a felony, and upon conviction shall be punished by imprisonment in the penitentiary not less than two nor more than five years.
“Sec. 2. By the term ‘pugilistic encounter,’ as used in this act, is meant any voluntary fight or personal encounter by blows by means of the fist or otherwise, whether with or without gloves, between two or more men, for money or for a prize of any character, or for any other thing of value, or for any championship, or upon the result of which any money or anything of value is bet or wagered.
“Sec. 3. That all laws and parts of laws in conflict herewith be and the same are hereby repealed.”

It is admitted that the subject is expressed in the title, but the contention is, that the act contains more than one subject. It was doubtless intended by section 35 to prevent certain practices sometimes resorted to in legislative bodies to secure legislation contrary to the will of the majority: one, that of misleading members, by incorporating in the body of the act some subject not named in the title; the other, that of including in the same bill two matters foreign to each other, for the purpose of procuring the support of such legislators as could be induced to vote for one provision merely for the purpose of securing the enactment of the other. Similar constitutional requirements are found in the former Constitutions of this State, and in many of the Constitutions of other States; and in construing them the courts have kept in view the evils intended to be remedied, and have uniformly held, that the provision as to one subject does not apply where two matters are incorporated in the act which are germane to each other and parts of the same general subject matter.

Let us apply this rule to the act in question. Its object is to suppress contests for physical supremacy, whether between man and man or man and beast, by prohibiting such contests, whether entered into for a prize or a wager, or as a public exhibition. The subject matter of the act is such physical contests, and it is but one subject, within the [*522] meaning and intent of the Constitution. The fact that “a pugilistic encounter between man and man” and “a fight between a man and a bull or any other animal” are specified, makes the object of the law, nevertheless, one in legal contemplation and the subject matter single. If the Legislature, instead of entering into specifications, had defined the offense in general terms, and had particularized neither fights between men nor fights between men and beasts, it seems to us there could have been no serious question as to the validity of the law; and yet the effect of the present act is precisely the same. Ret us suppose an act were passed making it a felony to steal “any domestic animal,” without specifying any animal in particular, could it be doubted that such an act contained but one subject? And yet an act which declared that any person who should steal any horse or cow should be punished by confinement in the penitentiary would be less comprehensive, and could not therefore be void, as embracing more that one subject. A contrary construction would render legislation practically interminable, and would convert a wise provision of the Constitution into a serious hindrance upon the lawmaking power.

Delivered October 14, 1895.

For the reasons given, we are clearly of the opinion that the act is valid. The writs of mandamus prayed for in these cases must therefore be refused. If there was any law in force at the time the petitions in these cases were filed which made it the duty of the comptroller to issue occupation blanks for prize fights, it is repealed; and the officer can not be commanded to do that which it is not now his duty to do.

But it is insisted, that if that part of article 5049 of the new Revised Civil Statutes relating to “fights between man and man” is valid, and was not repealed by that article of the revised Penal Code which prohibits prize fights, the petitioners were entitled to their remedy at the time the suits were instituted, and that therefore they should, in any event, recover their costs. But in this proposition we do not concur. These are suits at law, and in such cases the statute is peremptory. It provides, that “the successful party shall recover of his adversary all the costs expended or incurred therein, except when it is or may be otherwise provided by law.” Rev. Stats. 1879, art. 1421. We know of no law that affects this provision as applied to cases of this character. If it were otherwise, in view of the labors devolved upon the court, we should not be inclined to enter upon the work of deciding the intricate questions originally involved in the suits for the purpose of determining a mere issue of costs. Robinson v. The State, 87 Texas, 562; La Coste v. Duffy, 49 Texas, 769; Gordon v. The State, 47 Texas, 208.

' The writs of mandamus prayed for are refused; and each of the petitioners will pay the costs incurred in his suit.

Writs refused.