There are two very interesting questions suggested for revision, which we deem unnecessary to consider. The first of these is the motion to quash the information, and the second, an attack upon the law as being unconstitutional in that it was violative of sections 1 and 2, article 8 of the State Constitution, and discriminating in its nature. That portion of article 5049 alleged to have been violated is subdivision 3 of said article imposing a tax upon peddlers of patent medicines. The proposition upon which this judgment will be reversed is want of sufficient evidence to support the conviction. In other words, the evidence shows that appellant did not violate the law but was following his business strictly within its terms. The facts show that appellant was a salesman making sales for the Waxahachie Medicine Company; that this company was engaged in the sale of drugs and medicines by the wholesale; that its location was in Waxahachie, Ellis County, Texas; that appellant owned no interest in the concern or in the goods which he carried and sold; that he was simply their representative or salesman making sales and delivering the goods, and that said company had paid the tax imposed upon it as such as was required by law. This brings appellant squarely within the exemption mentioned in the statute, which exempts salesmen making sales for wholesale drug houses. Under article 5049, Revised Statutes, sub-division 3, a salesman making sales for a wholesale drug house is exempt from paying the tax. Appellant was making a sale for a wholesale drug house *Page 250 or drug company, and within the terms of that law he was prosecuted for violation of subdivision 3, article 5049. Inasmuch as the judgment will be reversed for want of facts to support the conviction, we deem it unnecessary to discuss and decide the other questions.
The judgment is reversed and the case remanded.
Reversed and remanded.
ON MOTION FOR REHEARING. April 17, 1907.