Conviction for pursuing the occupation of a loan broker without having first paid the occupation tax; punishment, a fine of $225.00.
Appellant raises the question of the unconstitutionality of the law under which the prosecution was had, and the sufficiency of the facts. Art. 121, P. C., penalizes him who follows any occupation, calling or profession taxed by law, without having first obtained a license therefor, and fixes the punishment at not less than the amount of the tax due nor more than double such amount. Subd. 14 of Art. 7047, Rev. Civ. Stat., fixes the annual occupation tax for pursuing the business of loan broker at $150. Subd. 15, Id., fixes the occupation tax of a money lender at the same amount. Counties are given the right by statute to fix the rate of county tax.
The definition of a loan broker, among others, is one who pursues the business of lending money upon interest, taking as security for the payment of same an assignment of wages. The facts in the instant case show that appellant pursued the business of lending money, taking notes from his customers and, if the borrower was employed for a salary or wages, the accused and the borrower would have an understanding with the employer that he would retain out of such salary or wages an amount sufficient to protect the loan. We think these facts bring appellant within the definition of a loan broker, and that the agreement and understanding referred to was in law an assignment of such salary or wages. Whether the agreement or understanding be oral or written would not seem to affect its character. Atkinson v. Jackson Bros., 259 S.W. 280; Neely v. Dublin Fruit Co., 199 S.W. 827; Thornburg v. Moon,180 S.W. 959; Hill v. Frost, 59 Tex. 25; Thomas v. Hammond, 47 Tex. 42. In either event the amount of the wages — equal *Page 98 to the principal and interest of the loan — by the terms of such agreement was removed from the control of the employee and made subject to the repayment of the loan.
We perceive no reason why the legislature might not fix an occupation tax on all money lenders, nor why they might not set those who lend money under the circumstances and conditions appearing in this record, in the class described and designated in Art. 1127 P. C., as loan brokers. The principle involved seems announced in Juhan v. State, 216 S.W. 873, which was reversed for other reasons. We are unable to agree with appellant's contention that the law is unconstitutional, nor that the facts do not support the judgment.
The judgment will be affirmed.
Affirmed.
ON MOTION FOR REHEARING.