The mandamus for which the relator prays will be refused, because it is apparent from her petition that she is not clearly entitled to it; but we shall briefly indicate our views, inasmuch as one of the questions *Page 563 involved properly calls for an interpretation of a statute governing the administration of an important department of the State government.
It is to be inferred from the petition and answer that during the months of September, October and November, 1913, the relator had been engaged in the wholesale fish and oyster business in the City of Dallas, without the license required by article 3987, Revised Statutes, 1911, or the payment of the tax for such license prescribed by article 3989. On December 19, 1913, she made application to the respondent for a license — whether for one year beginning September 1, 1913, or for one year beginning December 19, 1913, does not appear — subscribing to and presenting the statutory affidavit. She accompanied her application with a due tender of $35.36, being an amount equivalent to the statutory tax upon the quantity of fish "purchased by her within the State of Texas from September 1, 1913, to November 20, 1913, inclusive," namely, $1 for each 1000 pounds upon 35,364 pounds of fish; no oysters having been purchased, as she alleges. The answer of the respondent is that, during the period of time stated, the relator had `"handled" in the conduct of her business within the State, 84,484 pounds of fish and 994 barrels of oysters, upon which she was due a tax, according to the statutory rate, of $94.42; and that, because of her failure to pay the proper amount of tax, he had refused to issue the license. There seems to be no controversy between the parties that the quantity of fish representing the difference between that which the respondent claims was "handled" by the relator, and that which she claims was "purchased" by her during the period named, namely, 49,120 pounds, as well as the 994 barrels of oysters, was purchased by her without the State; and an agreed issue between them is whether the tax may be lawfully computed upon such purchases.
(1) The statute (article 3989, as amended by Laws, 1913, chap. 146) fixes the tax for the license at "one dollar for each thousand pounds of fish, and one cent per barrel of oysters, handled by the dealer," payable monthly. The term "handled," as made use of in the statute, can not, by mere construction, be given the restricted meaning for which the relator contends. Fish and oysters sold within the State, though originally purchased out of it, so as to constitute, in their purchase, articles of interstate commerce, would certainly be considered as commodities "handled" within the lawful intendment of the statute. The term very plainly has reference to the quantity of fish and oysters dealt in, or passing through the hands of the dealer, in the ordinary conduct of his business; and those sold within the State are as equally "handled" within the State as those purchased.
(2) In our opinion the tax may not be lawfully computed upon "the quantity purchased without the State." It is, of course, true that articles of merchandise brought from another State, at rest within the State and enjoying the protection of its laws, are taxable, like other property there situated. American Steel Wire Co. v. Speed, 192 U.S. 500, 24 Sup. Ct., 365, 48 L.Ed., 538. But a tax computed upon the quantity of merchandise purchased from *Page 564 dealers in another State to be transported within the State amounts, practically, to a tax upon the purchase — that which essentially gives the transaction its character as commerce — since, in such case, the amount of the purchase becomes the measure of the tax, and would therefore constitute a burden upon interstate commerce, which it is without the power of the State to impose. G., H. S.A. Ry. Co. v. State of Texas,210 U.S. 217, 28 Sup. Ct., 638, 52 L.Ed., 1031.
The proper measure of the tax according to the statute is, in our opinion, the quantity of fish and oysters purchased within the State, and, in addition the quantity sold within the State of any amount acquired from without it. In this way the quantity "handled" within the State may be fairly computed, and is made the subject of the tax laid by the statute.
(3) It not being shown by the relator that she had not sold any of the fish and oysters purchased by her without the State, the amount of the tax, computed only upon the purchases within the State, was insufficient, and upon this ground alone the respondent would have been justified in refusing to issue the license.
(4) She was not entitled to the license without the payment of the proper tax due for the period named. It is plain that she had pursued the business throughout this period. The statute very clearly contemplates the payment of the tax for each month the business is pursued. The relator does not contend to the contrary. The issue she makes is with respect to the proper amount of the tax. It would defeat the manifest purpose of the law, and contravene its terms, in our judgment, if a dealer, having pursued the business from September to December, should wait until, say, December 19th, to apply for the license, and then, while in clear default for the three preceding months, be held entitled to a license for the year following. By this method payment of the tax could be altogether avoided by refusing to apply for the license.
The mandamus is refused, but upon payment of the proper amount, as we have indicated, and making the deposit provided by article 3990, the license should be issued.