Giozza v. Tiernan,
148 U.S. 657 (1893)

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U.S. Supreme Court

Giozza v. Tiernan, 148 U.S. 657 (1893)

Giozza v. Tiernan

No. 185

Submitted March 28, 1893

Decided April 10, 1893

148 U.S. 657


The provisions in the legislation of the State of Texas respecting the taxation of persons engaged in the sale of spirituous, vinous, or malt liquors or medicated bitters do not violate the Constitution of the United States.

Francois Giozza was indicted in the criminal district court of Galveston County, Texas, upon the charge of having pursued the occupation of selling spirituous, vinous, and malt liquors in quantities of less than one quart without having first obtained a license therefor, and was tried, convicted, and fined in the sum of $450. He thereupon carried the case, by appeal, to the court of appeals of Texas, the court of last resort in criminal cases, which affirmed the judgment. Subsequently he was arrested and held in custody by Patrick Tiernan, as Sheriff of Galveston County, by authority of a capias issued by the criminal court, until the fine and costs were paid. Thereupon he applied for and obtained from the Circuit Court of the United States for the Eastern District of Texas a writ of habeas corpus.

The petition for the writ set forth that, by the laws of the state, no person is permitted to obtain a license to pursue the occupation of selling liquor until such person has given a bond, in the sum of $5,000, payable to the State of Texas, and containing, among other conditions, the condition, in substance, that the person giving such bond will not sell spirituous, vinous,

Page 148 U. S. 658

or malt liquors, or medicated bitters capable of producing intoxication, to any person after having been notified in writing, through the sheriff or other peace officer, by the wife or mother or daughter or sister of such person, not to sell to such person; that such bond may be sued on at the instance of any person so notifying, and aggrieved by the violation of such condition in said bond, and such person so notifying shall be entitled to recover the sum of $500 as liquidated damages for an infraction of such condition, etc. And petitioner charged that it was not competent for the Legislature of the State of Texas to impose the condition above stated as a condition precedent to the obtaining of a license to pursue said occupation, and that the statute, insofar as it imposed such condition, operated as a denial of the equal protection of the laws, and deprived petitioner of his property without due process of law, and was repugnant to the Fourteenth Amendment of the Constitution of the United States. Petitioner further alleged that in order to obtain a license to pursue the occupation aforesaid, all persons desiring to engage therein are required to pay the occupation tax imposed thereon in advance, for a period not less than twelve months, and to pay the tax imposed by the state and by the commissioners' courts of the several counties and by the cities and towns wherein such occupation is carried on, and to obtain a license from the county clerk of the county in which said occupation is carried on, for which license the sum of twenty-five cents is required to be paid, while all other persons pursuing all other occupations than the one pursued by petitioner are permitted by the laws of said state to pay the occupation tax on said occupations for each three months or quarterly, and no persons pursuing other taxable occupations than that pursued by appellant in cities and towns are required to pay the occupation tax imposed by such cities or towns as a prerequisite to obtaining a license to pursue such occupations, and no persons pursuing any taxable occupations other than that pursued by petitioner are required to obtain a license from such county clerk, or to pay therefor any sum.

Petitioner charged that, under the laws aforesaid, he was

Page 148 U. S. 659

denied the equal protection of the laws and deprived of his property without due process of law, and that those laws were repugnant to the Constitution and laws of the United States.

The petition further averred that the laws of the state, of which petitioner complained, had been pronounced and adjudged by the court of appeals to be valid laws, and not contrary to, and not inhibited by, the Constitution of the United States.

A copy of the indictment was annexed to the petition, wherefrom it appeared that Giozza was charged with unlawfully and willfully pursuing the occupation aforesaid without first having obtained a license, and that he had not paid the tax thereon, and was indebted to the state in the sum of $300 occupation tax, and to the county in the sum of $150 occupation tax; the Commissioners' Court of Galveston County having levied a tax on said occupation of one-half the amount levied by the state thereon.

The sheriff made due return that he held Giozza in his custody by the authority aforesaid, and attached thereto copies of the indictment, the capias, and the judgment of the court of appeals.

Upon the hearing, the circuit court adjudged that Giozza was not unlawfully restrained of his liberty and remanded him to the custody of the sheriff, and thereupon brought the case to this Court by appeal.

The statute in question provided in its first section for the levy upon any person, firm, or association of persons engaged in the occupation of selling spirituous, vinous, or malt liquors, or medicated bitters, of an annual tax of $300 for selling such liquors or bitters in quantities less than one quart. Under the second section, the commissioners' court had power to levy and collect taxes upon the occupations named, equal to one-half of the state tax, and cities and towns were empowered to levy an additional tax. By the third section, all the taxes were required to be paid in advance for a period of not less than twelve months. The fourth section required the giving of a bond, as sufficiently stated in the petition. Under section five, the county clerks in the several counties were authorized

Page 148 U. S. 660

to issue licenses upon payment by the applicant of all occupation taxes levied by or under the act. The evidence of the payment of the taxes upon such application was the receipt of the county collector of taxes. For issuing the license, the clerk was entitled to receive a fee of twenty-five cents for each license. Art. 3226a, 2 Sayles Tex.Civ.Stat. 124.

Art. 110 of the Texas Penal Code reads:

"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 so due, and not more than double that sum,"

and by Art. 112 it is provided that any person prosecuted shall have the right at any time before conviction to have the prosecution dismissed on payment of the taxes and costs of prosecution, the procuring of the license, etc. Willson's Cr.Tex.Stat. Part I, p. 47.

Section 20 of article 16 of the Constitution of Texas is as follows:

"The legislature shall at its first session enact a law whereby the qualified voters of any county, justice's precinct, town, or city, by a majority vote, from time to time, may determine whether the sale of intoxicating liquors shall be prohibited within the prescribed limits."

Section 42 of the same article provides that "the legislature may establish an inebriate asylum for the cure of drunkenness and reform of inebriates."

It was contended also that the court should take judicial notice that in 1887, a vote was taken upon a proposed amendment to the state constitution prohibiting the manufacture, sale, and exchange of intoxicating liquors except for medical, sacramental, and scientific purposes, which was rejected by a large majority.

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