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lows: "No civil suit shall be commenced, ment of the fact upon the paper itself. The nor shall any process be issued or served on form of that indorsement is usually the Sunday or any legal holiday, except in cases word “Filed," with the date. We think, of injunction, attachment or sequestration.” however, if the indorsement shows the fact The prohibition against the filing of a peti- in other words, it is sufficient. We conclude tion (which is the commencement of a suit that the application was lawfully filed on under our law), and against the issue and Sunday, and that the clerk's indorsement is service of process, clearly implies that the evidence of the fact of its filing, and, therefiling of papers during the progress of the fore, that we have jurisdiction of the apsuit was to be allowed. See Railway Co. v. plication; but, having examined it, we also Harding, 63 Tex, 162; Crabtree v. White- conclude that it shows no error, and it is selle, 63 Tex. 111. The statute does not re- therefore refused. fer 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
STATE V. AUSTIN CLUB. its commencement. In Bedoe v. Alpe, cited
(Supreme Court of Texas. Dec. 9, 1895.) above, the information was filed on a Sun- INTOXICATING LIQUORS-SALES BY SOCIAL CLUBday, and it was held that the filing was
LIABILITY FOR OCCUPATION Tax. valid. We conclude from these considera
A club organized, in good faith, for the
promotion of social intercourse and the encourtions that an application for a writ of error agement of literature and art, in selling intoximay be lawfully filed on a Sunday, but do cants, in a private manner, only to its members not hold that the clerk is bound to do an
and nonresident guests, but not with a view to
profit, is not liable for the tax imposed by official act of that character on that day.
Sayles' Civ. St. art. 3226a, on persons engaged We think he may lawfully refuse to act in the occupation of selling liquors. when a paper is tendered to him to be plac
Certified questions from court of civil aped upon the file, but that, if he does act, his
peals of Third supreme judicial district. act is valid. Sunday being regarded by our
Action by the state of Texas against the people generally as a day of rest, and by
Austin Club to recover the occupation tax many as a day of religious observance, in
imposed on retail dealers in intoxicating liqour opinion, save in exceptional cases, the
uors. There was a judgment for defendant, officers of the court are not required to per
and the state appealed to the court of civil form any official functions on such a day;
appeals, which certified the case to the suand it is their privilege to refuse their per
preme court for an opinion. formance, should they elect to do so. We may imagine cases in which it may be prop
M. M. Crane, Atty. Gen., and H. P. Brown, er to hold that a ministerial duty performed
Asst. Atty. Gen., for the State. J. L. Peeler on a Sunday would be voidable, if not void;
and Fisher & Townes, for appellee. such, for example, as a sale by a sheriff of personal property under judicial process. BROWN, J. The court of civil appeals of But, should it be so held in regard to such the Third supreme judicial district certified a sale, we think the ruling would rest upon to this court the following statement and the ground that it would be unjust to the question: defendant in execution that his property "On September 21, 1893, the state of Texas should be sold on a day which is usually de- brought this suit to recover $1,200, alleged to voted to a cessation of business, and on be due from the Austin Club, a corporation, which the conscientious scruples of many as occupation taxes for continuously engapersons would forbid their attendance upon ging in the business of selling spirituous, vinand bidding at the sale. But see Sayles v. ous, and malt liquors, and medicated bitters, Smith, supra.
in quantities less than one quart, from DeIt follows from what we have said that cember 27, 1889, up to the date the petition we think the file mark put upon the paper was filed. The pleadings, evidence, and ason Monday was too late; and it remains, signments of error raise the question herein therefore, to consider the effect of the clerk's certified. The trial court's findings of facts indorsement as to its receipt upon Sunday. consist of an agreed statement of the facts The just inference from the indorsement is upon which the case was there, and is here, that the application was delivered to the submitted. Said statement is as follows: clerk for the purpose of filing it, and that “ 'It is agreed, by and between the parties the clerk received it, but, being doubtful as hereto, the state of Texas, acting by and to his power to place it upon the file upon through her district attorney, A. S. Burleson, that day, noted the fact and date of its re- and the Austin Club, acting by and through ceipt, and marked it “Filed” upon the next its attorneys of record, John L. Peeler, Estl., day. Where a paper is deposited with the and Messrs. Fisher & Townes, that this cause clerk of a court for the purpose of making shall be submitted to the court for its deterit a part of the records in the case, it is mination upon the following agreed statefiled. The evidence which is looked to byment of facts: The Austin Club is a corpothe court in determining whether the paper | ration created under the laws of the state has been filed or not is the clerk's indorse- of Texas, the charter of which is, in sub
stance, as stated below, except where it is paid internal revenue license to the United copied. Article 1 provides that James R. States as liquor dealers. Eighth. That said Johnson, Lewis Hancock, A. P. Wooldridge, club does not sell spirituous liquors, etc., for W. H. Tobin, E. Saunders, John Orr, and M. profit, and that the money arising from sales D. Mather, and their associates, are to con- of spirituous liquors, etc., to members, is stitute the body politic known as the 'Austin placed in the treasury of the club, and is only Club,' with the usual powers of contracting used for the expenses of the club, and reand being contracted with, suing and being plenishing the stock of liquors, etc. Ninth. sued, and the right to purchase and hold real, That said club is now in debt about $1,000, personal, and mixed property, to have a seal, which is the excess of expense over the revand exist for a term of 50 years. Section 2 enues derived from the sales of liquors, etc., of the charter is as follows: Sec. 2. The dues, and initiation fees, received since its purpose and objects of this corporation are organization. Tenth. That said club numthe encouragement of social intercourse bers 100 members. Eleventh. That said club among its members, the support of literary sells only the finest imported whiskies, and undertakings and cultivation of literature, the price charged therefor is 25 cents for two the maintenance of a library and reading drinks; and beer it sells in bottles, for 15 room, and the promotion of fine arts. Sec- cents per pint and 25 cents per quart. tion 3 provides that the business shall be Twelfth. That said club keeps on hand, for transacted in the city of Austin, and that it the use of its members, the latest and most shall be under the control of a board of 11 advanced literary periodicals and magazines. directors, to be elected at the annual meet- Thirteenth. That its by-laws, and rules for ings of the members, to be held on the first its regulation, are as follows.'” Tuesday in January of each year. It pro- The association adopted by-laws, of which vides for the filling of vacancies in the board, we will make extracts, substantially, and by and names the directors for the first year. quotation, where necessary, of so much as are Section 4 provides that there shall be no cap- material to the question certified for our deital stock, the funds of the club to be made cision. The first article of the by-laws states up of initiation fees and monthly dues. The the purpose of the corporation to be the same charter was duly executed and filed in ac- as that stated in the charter. Article 3 of the cordance with law, and the corporation or by-laws provides for the membership of the ganized thereunder. 'Second. That, since the club,-in substance, that such membership is date of the incorporation of said club, it has not to be limited; each member is to be electfrom time to time purchased, in bulk, spirit- ed by the board of directors by ballot,—then uous liquors and medicated bitters, and, proceeds to prescribe the qualifications of the through its authorized agent and employé, members, and the method of proposing canretailed same to its members in quantities didates and acting upon such application. less than one quart, and at an agreed price Article 4 of the by-laws fixes the entrance and per drink, and has continuously so done to initiation fee at $25, and the annual subthis day. Third. That each member of said scription for all members at $30, payable club pays for the quantity of spirituous liq- monthly, in advance, on the 1st of each uors, etc., he calls for and consumes. Fourth. month. Article 7 makes it the duty of the That only members of said club are permit- president of the club, on the first day of each ter to purchase, in any quantity, from said quarter, to appoint three members of the club spirituous, vinous, and malt liquors, etc. board of directors, called the “house comFifth. That said club is carrying on its busi- mittee," whose duty it is to exercise control ness and is domiciled in the second story of and supervision, "in the broadest sense of a building situated on lot No. 1, in block No. | these terms,” over the management and con84, in Austin, Travis county, Tex., and is duct of the club house. Article 8 is in these using, in connection herewith, the following words: "Nonresidents of Travis county may stock, fixtures, and personal property: 2 bil- be admitted as contributing members upon liard tables and 1 pool table, and billiard the payment, in advance, of the initiation fee racks, cues, and balls therefor; 1 oak side- provided for members: provided, that they board; 7 oak tables; 2 oak desks; 10 up- shall be proposed and elected in accordance holstered chairs, and 2 upholstered sofas; 36 with article 3. Such contributing members chairs in billiard room and reading rooms; 3 shall be entitled to all the privileges accorded carpets, and bar glasses, fixtures, etc. Sixth. to regular members, except that of voting That said club has not paid to the collector and holding office." Article 9 permits any of taxes of Travis county, for the state of member to introduce, on his own responsibilTexas, the annual tax levied on every person ity, a stranger, who does not live in the limengaged in selling spirituous liquors, etc., in its of Travis county, and is not engaged in quantities less than a quart,-$300 for the business therein, for a period of one week, year ending December 27, 1890, nor $300 for under certain regulations, and contains this the year ending December 27, 1891, nor $300 provision: "In event of strangers so invited for the year ending December 27, 1892, nor failing to settle their accounts, the member $300 for the year ending December 27, 1893,- introducing them shall become liable for the nor any part thereof. Seventh. That said amount of their indebtedness.” club has continuously, since its incorporation, Under authority conferred by the by-laws,
rules were adopted for the government of place where intoxicating liquors are sold in the club. Rule 2 authorizes and directs the quantities less than a quart.” The same house committee to make all purchases or section defines "quiet house" in this landirect the same, to regulate the prices to be guage: "A quiet house or place of business charged for all articles served by the club, within the meaning of this act is one in report to the secretary the names of mem- which no music, loud and boisterous talking, bers who may be in arrears, etc. Rule 4 yelling or indecent or vulgar language is alpermits strangers, not residing or engaged lowed, used or practiced, or any other things in business in Travis county, to be intro- calculated to disturb or annoy persons residduced as visitors, and makes the members ing or doing business in the vicinity of such introducing any visitors responsible for their house or place of business, or those passing deportment and for any debts contracted by | along the streets or public highway.” The them. No person residing or engaged in eighth section of the same article provides; business in Travis county, not a member i “The license required by this act shall be of the club, would be permitted to visit the posted in some conspicuous place in the club. Rule 6 of the club is as follows: house where the business or occupation for "The club shall be open at 8 o'clock a. m., which such license is necessary is carried on; and shall be closed against the admission of and for a failure to so conspicuously post members at 2 o'clock a. m. The lights shall such license at or in such place of business, be turned off, and the club house closed, at 2 any person or any member of any firm or o'clock a. m. every night." Rule 16 is as association of persons so failing shall be follows: "No supplies furnished by the club guilty of a misdemeanor, and upon convicshall be sold on credit. Supplies shall be tion thereof shall be fined in any sum not paid for at the time of receipt, in such man- to exceed twenty-five dollars; and each day ner as the house committee shall from time of such failure to so conspicuously post such to time direct."
license shall constitute a separate offense.” "The statute under which the state claims Sections 9 and 10 of the said article apply that the Austin Club is subject to an occu- particularly to persons engaged as retail liqpation tax reads as follows: 'Hereafter uor dealers, under the license required by there shall be levied upon and collected from
the law. any person, firm or association of persons en- The question presented is: Was the Austin gaged in the business of selling spirituous, Club, in dispensing, to its members and vinous or malt liquors, or medicated bitters, their guests, liquors, in the manner stated, an annual tax upon every such occupation or engaged in the "business of selling spirituous, separate establishment, as follows: For sell- vinous, or malt liquors," within the meaning ing spirituous, vinous or malt liquors, or and intent of article 3226a, as above quoted? medicated bitters, in quantities of less than In the cases of Williams v. State, 23 Tex. one quart, three hundred dollars.' Sayles' App. 499, 5 S. W. 136, and Stanford v. State, Civ. St. art. 3226a.
16 Tex. App. 331, the prosecutions were based "The material and controlling question in upon article 110 of the Penal Code of this the case is this: Under the agreed facts as state, which is in the following language: above set out, was the Austin Club engaged "Any person who shall pursue or follow any in the business of selling spirituous, vinous, occupation, calling or profession, or do any and malt liquors, and medicated bitters, with- act taxed by law without first obtaining a in the meaning of the statute? That ques- license therefor, shall be fined in any sum tion the court of civil appeals for the Third not less than the amount of the taxes So district has decided to certify, and it is here- due, and not more than double that sum.” In by certified, to the supreme court for deci- the cases cited above, the court defined the sion."
“occupation" as follows: “'OccupaIn addition to the article of the Revised tion,' as used in this statute, and as underStatutes quoted by the court in its submis- stood commonly, will signify a vocation, callsion of the question certified, we call atten- ing, trade,-the business which one printion to section 4 of that article, which re- cipally engages in to procure a living or to quires all persons desiring to engage in the obtain wealth. It is not the sale of liquor sale of spirituous, vinous, or malt liquors to that constitutes the offense. It is the engive bond, among the conditions of which are gaging in the business of selling without the following: That "he shall keep an open, paying the occupation tax. It does not requiet and orderly house or place for the sale quire even a single sale to constitute the ofof spirituous, vinous or malt liquors, or fense, for a person may engage in the busimedicated bitters capable of producing intoxi- ness, without succeeding in it, even to the cation.” In the same section, "open house" extent of one sale.” In the case of Koenig is defined as follows: "An open house with- v. State (Tex. Cr. App.) 26 S. W. 835, the apin the meaning of this act is one in which pellant had been prosecuted and convicted no screen or other device is used or placed, for playing cards in a club room at Cuero, either inside or outside of such house or which club was organized and conducted subplace of business for the purpose of or that stantially under the same rules as in the will obstruct the view through the open door case now before us. The indictment charor place of entrance into any such house or ged that the game was played with cards in “a house for retailing spirituous liquors," , quiring the posting of the license in a public and the court of criminal appeals, in an able place indicate that the legislature intended and exhaustive opinion by Presiding Justice that the business of selling spirituous, vinous, Hurt, held that the club room was not "a or malt liquors should be conducted in a pubhouse for retailing spirituous liquors,” with- lic place, open to all persons to enter therein the meaning of the statute. In announcing | in, to the observation of those passing by the conclusion arrived at by the court, the such place, and guarding against all of those learned judge said: “We are of opinion that, things which would be calculated to lure the upon authority and reason, it must be held, unsuspecting into such places, or to offend or under the facts of the present case,
corrupt those who might visit them. These transaction was not the sale of the liquor provisions are inconsistent with the idea that in the way of trade; that neither the asso- the legislature was attempting to regulate the ciation, its members, nor its steward were dispensing of liquors in the private manner engaged in the occupation of selling liquors. shown by the facts of this case, but it shows If this be true, was the club room a place that the business, as expressed in the article for retailing liquors? * * * It is very
very quoted, was intended to be a business conclear, both from the decisions we have cit- ducted in a public manner, and in a place to ed and our statutes, that the club, its mem- which the public would have free access as bers, or steward are not engaged in the oc- stated above. We think that this tends very cupation of selling liquors in quantities less strongly to support the position taken by the than one quart.” In the case before us, no appellee in this case, that the language of question is made as to this being a device to the statute does not embrace the business as evade the law. It is, therefore, to be treated transacted by this club. Under the condias a bona fide club, formed for the purposes tions of the bond required of persons engaexpressed in its charter.
ging in the business of selling liquors, and the The question as to whether or not the provisions of the statute regulating the mantransactions of dispensing liquors to the ner of conducting it, no license could be obmembers and guests, as in this instance, con- tained to sell spirituous liquors in the pristituted sales, within the meaning of stat- vate manner that it was done by this club, utes prohibiting such sales, has been the and has been done by many other clubs in subject of much judicial investigation, upon the state for many years. The conclusion which there is a great conflict of authority; must be drawn that the legislature either did but that question is not involved in the case not intend that such business as that connow presented to us, and we refrain from ducted by the Austin Club should be emdiscussing it, and will not undertake to re- braced in the terms of the statute, or it did view the many authorities bearing upon that intend that all sales of a private character question cited by the counsel for both par- should be absolutely prohibited. We do not ties in this case. Clubs like this have been think that the latter conclusion can be drawn formed and maintained in many of the states, from this and other provisions of the Penal and in some of them the question now before Code upon the subject of selling spirituous the court has been adjudicated, upon which liquors. The Penal Code prohibits the sale there is likewise a conflict of authority. But of liquors under various other circumstances, we believe that the decided weight of au- as, for instance, all sales to Indians, to mithority upon this question supports the con- nors, and in local option districts, without reclusion arrived at by the court of criminal gard to whether the person selling has a appeals in the case of Koenig v. State, cited license therefor or not; and if the legislaabove, to the extent that it holds that the ture intended to prohibit this class of busiclub was not engaged in the business of sell- ness, if it be termed a business, it might ing spirituous liquors. Martin v. State, 59 easily have done so in plain and unambiguous Ala. 34; Piedmont Club v. Com., 87 Va. 540, language, as it has done with reference to 12 S. E. 963; Club of Memphis v. Dwyer, 11 the prohibited sales above stated. Lea, 452; State v. Boston Club (La.) 12 Article 110 of the Penal Code was enacted South. 895; Graff v. Evans, 8 Q. B. Div. 373. for the purpose of enforcing the license law, It has been held, on the other hand, by courts and compelling persons pursuing the occupaof eminent ability, and upon strong reasoning, tions which were taxed by the state to pay that persons engaged in like business, either the taxes levied and to procure the license reas a voluntary association or as a corporation, quired. In fact, it is the most efficient means were engaged in the business of selling spirit- provided for the collection of such taxes and uous liquors. U. S. v. Wittig, 2 Lowell, 466, the enforcement of the law. The court of Fed. Cas. No. 16,748; People v. Soule, 74 criminal appeals is the court of last resort in Mich. 250, 41 N. W. 908; State v. Bacon Club, this state in criminal matters, and to its 44 Mo. App. 86.
final judgment must be submitted all quesThe conditions of the bond, requiring ob- tions arising upon criminal prosecutions. The ligee to keep an open, quiet, and orderly statute now being construed by us is so closehouse or place for the sale of spirituous, vin- ly related to and dependent upon the crimous, or malt liquors, together with the pro- | inal statute (article 110, Pen. Code), that we visions of the statute defining what are open feel constrained to follow the decision of the and quiet houses, and the further provision re- court of criminal appeals in this matter, more especially as it is well supported by author- testimony that said person's parents objected ity, and, in fact, by the weight of authority;
to said marriage, if not material, was at least
not prejudicial. and, considering all the provisions of our
2. Testimony that during defendant's enstatute, as cited above, it is not clear that
gagement to said person he had given her presthe decision cited is not a correct statement ents, offered to prove that said person's parents of the law upon the question. If we should
did not object to said marriage, was properly
excluded. hold that a club such as this, transacting its
3. There being no law prescribing the qualibusiness in the manner that this did, was en- fications of deputy county clerk, a minor is gaged in the business of selling spirituous
eligible to hold the office, and under Sayles'
Civ. St. art. 1146, providing that deputies may liquors by retail, we would, in effect, hold
perform all such Official acts as may be lawthat the place where such club's business fully done by the clerk in person, is authorwas being transacted was a house for the re- ized to administer an oath to an applicant for tail of spirituous liquors, and would be in di
a marriage license. rect conflict with the highest court in crim- Appeal from district court, Johnson county; inal matters in this state. If we were to J. M. Hall, Judge. hold that the appellee is liable for the taxes, B. S. Harkreader was convicted of false then, if indicted, under article 110, Pen. Code, swearing, and appeals. Affirmed. for selling without having procured license
Poindexter & Padelford,
& Padelford, for appellant. therefor, it would logically follow that, if the
Mann Trice, for the State. 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
HENDERSON, J. The appellant was conindictment for so doing, and the court of
victed in the court below on a charge of criminal appeals must so hold. Thus, we
false swearing, and his punishment assessed would have the state of case in which one at two years in the penitentiary. From the branch of this department of the state gov
judgment and sentence of the lower court ernment would enforce the payment of a tax,
he prosecutes this appeal. The charge under and another branch of the same department
which the indictment for false swearing was would hold that such person was not liable
predicated in this case was that appellar for the tax; each court so holding being su
made a voluntary affidavit in writing before preme in the sphere of its jurisdiction. In 0. L. Bishop, deputy county clerk of Johnson this matter, this court is situated differently county, Tex., that one Miss Ruby Lee Porter from any of the courts of other states which was 18 years of age, and that there existed have dealt with this subject, for the reason
no real objections to the marriage of said that this court is the court of last resort in
Miss Porter to affiant. civil matters, but has no jurisdiction in crim
The first assignment of error calls in quesinal matters, while in other states the same
tion the ruling of the court in allowing the court had jurisdiction of matters, both civil state to prove that the father and mother of and criminal, arising out of the matter in Miss Porter objected to her marriage with dispute. Harmony of decision between these appellant. It is contended by appellant that courts is important, and should be preserved
said testimony is wholly immaterial, and where it can be upon proper principles, and
that the indictment did not allege the objecin no case of doubt would we be willing to
tion of her parents to the marriage. The inconflict with the decisions of that court in
dictment in this case does charge that there matters so nearly related and intimately con
were no legal objections to said marriage, nected with the subjects of its jurisdiction.
and the father and mother were the only We, therefore, for these reasons, and upon
persons who could have objected to said the authorities cited, answer that the Austin marriage; and, although their daughter Club, in the transactions stated by the court might have been under age, they could have of civil appeals, conducted in the manner legalized the marriage by giving their contherein stated, were not engaged in the busi
sent thereto. The affidavit on which the perness of selling spirituous, vinous, and malt jury was based also contains the allegation liquors, and medicated bitters. We call at
that there were no legal objections to said tention to the fact that we have not con- marriage, and this particular affidavit was sidered, in this opinion, the difference be- also traversed by the indictment; so that it tween article 3226a and the act of the 23d would appear that this was an element of the legislature upon the same subject. See Laws
perjury assigned. But, conceding that said 23d Leg. p. 177.
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 preHARKREADER V. STATE.
sented Miss Porter with a number of pres(Court of Criminal Appeals of Texas. Nov. 27,
ents, some of said presents being useful for 1895.)
housekeeping, and that she still retained all PERJURY-EVIDENCE-ELIGIBILITY OF MIXOR TO
of said property in her possession, with the HOLD OFFICE.
knowledge and consent of her parents. Ap1. On a trial for falsely swearing that a certain person was of age, and that no legal ob
pellant claims that this testimony was adjections existed to her marriage to defendant, missible for the purpose of showing that her