lows: "No civil suit shall be commenced, nor shall any process be issued or served on Sunday or any legal holiday, except in cases of injunction, attachment or sequestration." The prohibition against the filing of a petition (which is the commencement of a suit under our law), and against the issue and service of process, clearly implies that the filing of papers during the progress of the suit was to be allowed. See Railway Co. v. Harding, 63 Tex. 162; Crabtree v. Whiteselle, 65 Tex. 111. The statute does not refer to judicial acts, and they are left as at common law. The filing of an application for a writ of error in the court of civil appeals is the continuation of a suit and not its commencement. In Bedoe v. Alpe, cited above, the information was filed on a Sunday, and it was held that the filing was valid. We conclude from these considerations that an application for a writ of error may be lawfully filed on a Sunday, but do not hold that the clerk is bound to do an official act of that character on that day. We think he may lawfully refuse to act when a paper is tendered to him to be placed upon the file, but that, if he does act, his act is valid. Sunday being regarded by our people generally as a day of rest, and by many as a day of religious observance, in our opinion, save in exceptional cases, the officers of the court are not required to perform any official functions on such a day; and it is their privilege to refuse their performance, should they elect to do so. We may imagine cases in which it may be proper to hold that a ministerial duty performed on a Sunday would be voidable, if not void; such, for example, as a sale by a sheriff of personal property under judicial process. But, should it be so held in regard to such a sale, we think the ruling would rest upon the ground that it would be unjust to the defendant in execution that his property should be sold on a day which is usually devoted to a cessation of business, and on which the conscientious scruples of many persons would forbid their attendance upon and bidding at the sale. But see Sayles v. Smith, supra.

It follows from what we have said that we think the file mark put upon the paper on Monday was too late; and it remains, therefore, to consider the effect of the clerk's indorsement as to its receipt upon Sunday. The just inference from the indorsement is that the application was delivered to the clerk for the purpose of filing it, and that the clerk received it, but, being doubtful as to his power to place it upon the file upon that day, noted the fact and date of its receipt, and marked it "Filed" upon the next day. Where a paper is deposited with the clerk of a court for the purpose of making it a part of the records in the case, it is filed. The evidence which is looked to by the court in determining whether the paper has been filed or not is the clerk's indorse

v.33s.w.no.1-8

ment of the fact upon the paper itself. The form of that indorsement is usually the word "Filed," with the date. We think, however, if the indorsement shows the fact in other words, it is sufficient. We conclude that the application was lawfully filed on Sunday, and that the clerk's indorsement is evidence of the fact of its filing, and, therefore, that we have jurisdiction of the application; but, having examined it, we also conclude that it shows no error, and it is therefore refused.

STATE v. AUSTIN CLUB. (Supreme Court of Texas. Dec. 9, 1895.) INTOXICATING LIQUORS-SALES BY SOCIAL CLUBLIABILITY FOR OCCUPATION TAX.

A club organized, in good faith, for the promotion of social intercourse and the encouragement of literature and art, in selling intoxicants, in a private manner, only to its members and nonresident guests, but not with a view to profit, is not liable for the tax imposed by Sayles' Civ. St. art. 3226a, on persons engaged in the occupation of selling liquors.

Certified questions from court of civil appeals of Third supreme judicial district.

Action by the state of Texas against the Austin Club to recover the occupation tax imposed on retail dealers in intoxicating liquors. There was a judgment for defendant, and the state appealed to the court of civil appeals, which certified the case to the supreme court for an opinion.

M. M. Crane, Atty. Gen., and H. P. Brown, Asst. Atty. Gen., for the State. J. L. Peeler and Fisher & Townes, for appellee.

BROWN, J. The court of civil appeals of the Third supreme judicial district certified to this court the following statement and question:

"On September 21, 1893, the state of Texas brought this suit to recover $1,200, alleged to be due from the Austin Club, a corporation, as occupation taxes for continuously engaging in the business of selling spirituous, vinous, and malt liquors, and medicated bitters, in quantities less than one quart, from December 27, 1889, up to the date the petition was filed. The pleadings, evidence, and assignments of error raise the question herein certified. The trial court's findings of facts consist of an agreed statement of the facts upon which the case was there, and is here, submitted. Said statement is as follows:

"It is agreed, by and between the parties hereto, the state of Texas, acting by and through her district attorney, A. S. Burleson, and the Austin Club, acting by and through its attorneys of record, John L. Peeler, Esq., and Messrs. Fisher & Townes, that this cause shall be submitted to the court for its determination upon the following agreed statement of facts: The Austin Club is a corporation created under the laws of the state of Texas, the charter of which is, in sub

stance, as stated below, except where it is copied. Article 1 provides that James R. Johnson, Lewis Hancock, A. P. Wooldridge, W. H. Tobin, E. Saunders, John Orr, and M. D. Mather, and their associates, are to constitute the body politic known as the 'Austin Club,' with the usual powers of contracting and being contracted with, suing and being sued, and the right to purchase and hold real, personal, and mixed property, to have a seal, and exist for a term of 50 years. Section 2 of the charter is as follows: Sec. 2. The purpose and objects of this corporation are the encouragement of social of social intercourse among its members, the support of literary undertakings and cultivation of literature, the maintenance of a library and reading room, and the promotion of fine arts.' Section 3 provides that the business shall be transacted in the city of Austin, and that it shall be under the control of a board of 11 directors, to be elected at the annual meetings of the members, to be held on the first Tuesday in January of each year. It provides for the filling of vacancies in the board, and names the directors for the first year. Section 4 provides that there shall be no capital stock, the funds of the club to be made up of initiation fees and monthly dues. The charter was duly executed and filed in accordance with law, and the corporation organized thereunder. 'Second. That, since the date of the incorporation of said club, it has from time to time purchased, in bulk, spirituous liquors and medicated bitters, and, through its authorized agent and employé, retailed same to its members in quantities less than one quart, and at an agreed price per drink, and has continuously so done to this day. Third. That each member of said club pays for the quantity of spirituous liquors, etc., he calls for and consumes. Fourth. That only members of said club are permitter to purchase, in any quantity, from said club spirituous, vinous, and malt liquors, etc. Fifth. That said club is carrying on its business and is domiciled in the second story of a building situated on lot No. 1, in block No. 84, in Austin, Travis county, Tex., and is using, in connection therewith, the following stock, fixtures, and personal property: 2 billiard tables and 1 pool table, and billiard racks, cues, and balls therefor; 1 oak sideboard; 7 oak tables; 2 oak desks; 10 upholstered chairs, and 2 upholstered sofas; 36 chairs in billiard room and reading rooms; 3 carpets, and bar glasses, fixtures, etc. Sixth. That said club has not paid to the collector of taxes of Travis county, for the state of Texas, the annual tax levied on every person engaged in selling spirituous liquors, etc., in quantities less than a quart,-$300 for the year ending December 27, 1890, nor $300 for the year ending December 27, 1891, nor $300 for the year ending December 27, 1892, nor $300 for the year ending December 27, 1893,nor any part thereof. Seventh. That said club has continuously, since its incorporation,

paid internal revenue license to the United States as liquor dealers. Eighth. That said club does not sell spirituous liquors, etc., for profit, and that the money arising from sales of spirituous liquors, etc., to members, is placed in the treasury of the club, and is only used for the expenses of the club, and replenishing the stock of liquors, etc. Ninth. That said club is now in debt about $1,000, which is the excess of expense over the revenues derived from the sales of liquors, etc., dues, and initiation fees, received since its organization. Tenth. That said club numbers 100 members. Eleventh. That said club selfs only the finest imported whiskies, and the price charged therefor is 25 cents for two drinks; and beer it sells in bottles, for 15 cents per pint and 25 cents per quart. Twelfth. That said club keeps on hand, for the use of its members, the latest and most advanced literary periodicals and magazines. Thirteenth. That its by-laws, and rules for its regulation, are as follows.""

The association adopted by-laws, of which we will make extracts, substantially, and by quotation, where necessary, of so much as are material to the question certified for our decision. The first article of the by-laws states the purpose of the corporation to be the same as that stated in the charter. Article 3 of the by-laws provides for the membership of the club,-in substance, that such membership is not to be limited; each member is to be elected by the board of directors by ballot,-then proceeds to prescribe the qualifications of the members, and the method of proposing candidates and acting upon such application. Article 4 of the by-laws fixes the entrance and initiation fee at $25, and the annual subscription for all members at $30, payable monthly, in advance, on the 1st of each month. Article 7 makes it the duty of the president of the club, on the first day of each quarter, to appoint three members of the board of directors, called the "house committee," whose duty it is to exercise control and supervision, "in the broadest sense of these terms," over the management and conduct of the club house. Article 8 is in these words: "Nonresidents of Travis county may be admitted as contributing members upon the payment, in advance, of the initiation fee provided for members: provided, that they shall be proposed and elected in accordance with article 3. Such contributing members shall be entitled to all the privileges accorded to regular members, except that of voting and holding office." Article 9 permits any member to introduce, on his own responsibility, a stranger, who does not live in the limits of Travis county, and is not engaged in business therein, for a period of one week, under certain regulations, and contains this provision: "In event of strangers so invited failing to settle their accounts, the member introducing them shall become liable for the amount of their indebtedness."

Under authority conferred by the by-laws,

rules were adopted for the government of the club. Rule 2 authorizes and directs the house committee to make all purchases or direct the same, to regulate the prices to be charged for all articles served by the club, report to the secretary the names of members who may be in arrears, etc. Rule 4 permits strangers, not residing or engaged in business in Travis county, to be introduced as visitors, and makes the members introducing any visitors responsible for their deportment and for any debts contracted by them. No person residing or engaged in business in Travis county, not a member of the club, would be permitted to visit the club. Rule 6 of the club is as follows: is as follows: "The club shall be open at 8 o'clock a. m., and shall be closed against the admission of members at 2 o'clock a. m. The lights shall be turned off, and the club house closed, at 2 o'clock a. m. every night." Rule 16 is as follows: "No supplies furnished by the club shall be sold on credit. Supplies shall be paid for at the time of receipt, in such manner as the house committee shall from time to time direct."

"The statute under which the state claims that the Austin Club is subject to an occupation tax reads as follows: 'Hereafter there shall be levied upon and collected from any person, firm or association of persons engaged in the business of selling spirituous, vinous or malt liquors, or medicated bitters, an annual tax upon every such occupation or separate establishment, as follows: For selling spirituous, vinous or malt liquors, or medicated bitters, in quantities of less than one quart, three hundred dollars.' Sayles' Civ. St. art. 3226a.

"The material and controlling question in the case is this: Under the agreed facts as above set out, was the Austin Club engaged in the business of selling spirituous, vinous, and malt liquors, and medicated bitters, within the meaning of the statute? That question the court of civil appeals for the Third district has decided to certify, and it is hereby certified, to the supreme court for decision."

In addition to the article of the Revised Statutes quoted by the court in its submission of the question certified, we call attention to section 4 of that article, which requires all persons desiring to engage in the sale of spirituous, vinous, or malt liquors to give bond, among the conditions of which are the following: That "he shall keep an open, quiet and orderly house or place for the sale of spirituous, vinous or malt liquors, or medicated bitters capable of producing intoxication." In the same section, "open house" is defined as follows: "An open house within the meaning of this act is one in which no screen or other device is used or placed, either inside or outside of such house or place of business for the purpose of or that will obstruct the view through the open door or place of entrance into any such house or

place where intoxicating liquors are sold in quantities less than a quart." The same section defines "quiet house" in this language: "A quiet house or place of business within the meaning of this act is one in which no music, loud and boisterous talking, yelling or indecent or vulgar language is allowed, used or practiced, or any other things calculated to disturb or annoy persons residing or doing business in the vicinity of such house or place of business, or those passing along the streets or public highway." The eighth section of the same article provides: "The license required by this act shall be posted in some conspicuous place in the house where the business or occupation for which such license is necessary is carried on; and for a failure to so conspicuously post such license at or in such place of business, any person or any member of any firm or association of persons so failing shall be guilty of a misdemeanor, and upon conviction thereof shall be fined in any sum not to exceed twenty-five dollars; and each day of such failure to so conspicuously post such license shall constitute a separate offense." Sections 9 and 10 of the said article apply particularly to persons engaged as retail liquor dealers, under the license required by the law.

The question presented is: Was the Austin Club, in dispensing, to its members and their guests, liquors, in the manner stated, engaged in the "business of selling spirituous, vinous, or malt liquors," within the meaning and intent of article 3226a, as above quoted? In the cases of Williams v. State, 23 Tex. App. 499, 5 S. W. 136, and Stanford v. State, 16 Tex. App. 331, the prosecutions were based upon article 110 of the Penal Code of this state, which is in the following language: "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." In the cases cited above, the court defined the word "occupation" as follows: "Occupation,' as used in this statute, and as understood commonly, will signify a vocation, calling, trade, the business which one principally engages in to procure a living or to obtain wealth. It is not the sale of liquor that constitutes the offense. It is the engaging in the business of selling without paying the occupation tax. It does not require even a single sale to constitute the offense, for a person may engage in the business, without succeeding in it, even to the extent of one sale." In the case of Koenig v. State (Tex. Cr. App.) 26 S. W. 835, the appellant had been prosecuted and convicted for playing cards in a club room at Cuero, which club was organized and conducted substantially under the same rules as in the case now before us. The indictment charged that the game was played with cards in

"a house for retailing spirituous liquors," and the court of criminal appeals, in an able and exhaustive opinion by Presiding Justice Hurt, held that the club room was not "a house for retailing spirituous liquors," within the meaning of the statute. In announcing the conclusion arrived at by the court, the learned judge said: "We are of opinion that, upon authority and reason, it must be held, under the facts of the present case, the transaction was not the sale of the liquor in the way of trade; that neither the association, its members, nor its steward were engaged in the occupation of selling liquors. If this be true, was the club room a place for retailing liquors? * * * It is very clear, both from the decisions we have cited and our statutes, that the club, its members, or steward are not engaged in the occupation of selling liquors in quantities less than one quart." In the case before us, no question is made as to this being a device to evade the law. It is, therefore, to be treated as a bona fide club, formed for the purposes expressed in its charter.

The question as to whether or not the transactions of dispensing liquors to the members and guests, as in this instance, constituted sales, within the meaning of statutes prohibiting such sales, has been the subject of much judicial investigation, upon which there is a great conflict of authority; but that question is not involved in the case now presented to us, and we refrain from discussing it, and will not undertake to review the many authorities bearing upon that question cited by the counsel for both parties in this case. Clubs like this have been formed and maintained in many of the states, and in some of them the question now before the court has been adjudicated, upon which there is likewise a conflict of authority. But we believe that the decided weight of authority upon this question supports the conclusion arrived at by the court of criminal appeals in the case of Koenig v. State, cited above, to the extent that it holds that the club was not engaged in the business of selling spirituous liquors. Martin v. State, 59 Ala. 34; Piedmont Club v. Com., 87 Va. 540, 12 S. E. 963; Club of Memphis v. Dwyer, 11 Lea, 452; State v. Boston Club (La.) 12 South. 895; Graff v. Evans, 8 Q. B. Div. 373. It has been held, on the other hand, by courts of eminent ability, and upon strong reasoning, that persons engaged in like business, either as a voluntary association or as a corporation, were engaged in the business of selling spirituous liquors. U. S. v. Wittig, 2 Lowell, 466, Fed. Cas. No. 16,748; People v. Soule, 74 Mich. 250, 41 N. W. 908; State v. Bacon Club, 44 Mo. App. 86.

The conditions of the bond, requiring obligee to keep an open, quiet, and orderly orderly house or place for the sale of spirituous, vinous, or malt liquors, together with the provisions of the statute defining what are open and quiet houses, and the further provision re

quiring the posting of the license in a public place indicate that the legislature intended that the business of selling spirituous, vinous, or malt liquors should be conducted in a public place, open to all persons to enter therein, to the observation of those passing by such place, and guarding against all of those things which would be calculated to lure the unsuspecting into such places, or to offend or corrupt those who might visit them. These provisions are inconsistent with the idea that the legislature was attempting to regulate the dispensing of liquors in the private manner shown by the facts of this case, but it shows that the business, as expressed in the article quoted, was intended to be a business conducted in a public manner, and in a place to which the public would have free access as stated above. We think that this tends very strongly to support the position taken by the appellee in this case, that the language of the statute does not embrace the business as transacted by this club. Under the conditions of the bond required of persons engaging in the business of selling liquors, and the provisions of the statute regulating the manner of conducting it, no license could be obtained to sell spirituous liquors in the private manner that it was done by this club, and has been done by many other clubs in the state for many years. The conclusion must be drawn that the legislature either did not intend that such business as that conducted by the Austin Club should be embraced in the terms of the statute, or it did intend that all sales of a private character should be absolutely prohibited. We do not think that the latter conclusion can be drawn from this and other provisions of the Penal Code upon the subject of selling spirituous liquors. The Penal Code prohibits the sale of liquors under various other circumstances, as, for instance, all sales to Indians, to minors, and in local option districts, without regard to whether the person selling has a license therefor or not; and if the legislature intended to prohibit this class of business, if it be termed a business, it might easily have done so in plain and unambiguous language, as it has done with reference to the prohibited sales above stated.

Article 110 of the Penal Code was enacted for the purpose of enforcing the license law, and compelling persons pursuing the occupations which were taxed by the state to pay the taxes levied and to procure the license required. In fact, it is the most efficient means provided for the collection of such taxes and the enforcement of the law. The court of criminal appeals is the court of last resort in this state in criminal matters, and to its final judgment must be submitted all questions arising upon criminal prosecutions. The statute now being construed by us is so closely related to and dependent upon the criminal statute (article 110, Pen. Code), that we feel constrained to follow the decision of the court of criminal appeals in this matter, more

especially as it is well supported by authority, and, in fact, by the weight of authority; and, considering all the provisions of our statute, as cited above, it is not clear that the decision cited is not a correct statement of the law upon the question. If we should hold that a club such as this, transacting its business in the manner that this did, was engaged in the business of selling spirituous liquors by retail, we would, in effect, hold that the place where such club's business was being transacted was a house for the retail of spirituous liquors, and would be in direct conflict with the highest court in criminal matters in this state. If we were to hold that the appellee is liable for the taxes, then, if indicted, under article 110, Pen. Code, for selling without having procured license therefor, it would logically follow that, if the case of Koenig v. State is a correct enunciation of the law, the person dispensing the liquors for the club would not be liable to indictment for so doing, and the court of criminal appeals must so hold. Thus, we Iwould have the state of case in which one branch of this department of the state government would enforce the payment of a tax, and another branch of the same department would hold that such person was not liable for the tax; each court so holding being supreme in the sphere of its jurisdiction. In this matter, this court is situated differently from any of the courts of other states which have dealt with this subject, for the reason that this court is the court of last resort in civil matters, but has no jurisdiction in criminal matters, while in other states the same court had jurisdiction of matters, both civil and criminal, arising out of the matter in dispute. Harmony of decision between these courts is important, and should be preserved where it can be upon proper principles, and in no case of doubt would we be willing to conflict with the decisions of that court in matters so nearly related and intimately connected with the subjects of its jurisdiction. We, therefore, for these reasons, and upon the authorities cited, answer that the Austin Club, in the transactions stated by the court of civil appeals, conducted in the manner therein stated, were not engaged in the business of selling spirituous, vinous, and malt liquors, and medicated bitters. We call attention to the fact that we have not considered, in this opinion, the difference between article 3226a and the act of the 23d legislature upon the same subject. See Laws 23d Leg. p. 177.

HARKREADER v. STATE.

testimony that said person's parents objected to said marriage, if not material, was at least not prejudicial.

2. Testimony that during defendant's engagement to said person he had given her presents, offered to prove that said person's parents did not object to said marriage, was properly excluded.

3. There being no law prescribing the qualifications of deputy county clerk, a minor is eligible to hold the office, and under Sayles' Civ. St. art. 1146, providing that deputies may perform all such official acts as may be lawfully done by the clerk in person, is authorized to administer an oath to an applicant for a marriage license.

Appeal from district court, Johnson county; J. M. Hall, Judge.

B. S. Harkreader was convicted of false swearing, and appeals. Affirmed.

Poindexter & Padelford, for appellant. Mann Trice, for the State.

HENDERSON, J. The appellant was convicted in the court below on a charge of false swearing, and his punishment assessed at two years in the penitentiary. From the judgment and sentence of the lower court he prosecutes this appeal. The charge under which the indictment for false swearing was predicated in this case was that appellant made a voluntary affidavit in writing before O. L. Bishop, deputy county clerk of Johnson county, Tex., that one Miss Ruby Lee Porter was 18 years of age, and that there existed no real objections to the marriage of said Miss Porter to affiant.

The first assignment of error calls in question the ruling of the court in allowing the state to prove that the father and mother of Miss Porter objected to her marriage with appellant. It is contended by appellant that said testimony is wholly immaterial, and that the indictment did not allege the objection of her parents to the marriage. The indictment in this case does charge that there were no legal objections to said marriage, and the father and mother were the only persons who could have objected to said marriage; and, marriage; and, although their daughter might have been under age, they could have legalized the marriage by giving their consent thereto. The affidavit on which the perjury was based also contains the allegation that there were no legal objections to said marriage, and this particular affidavit was also traversed by the indictment; so that it would appear that this was an element of the perjury assigned. But, conceding that said testimony was not material, yet we fail to see how the admission thereof could have injured the appellant.

The appellant offered to prove that he presented Miss Porter with a number of pres

1895.)

PERJURY-EVIDENCE-ELIGIBILITY OF MINOR TO HOLD OFFICE.

1. On a trial for falsely swearing that a certain person was of age, and that no legal objections existed to her marriage to defendant,

housekeeping, and that she still retained all of said property in her possession, with the knowledge and consent of her parents. Appellant claims that this testimony was admissible for the purpose of showing that her