On the 2d day of February, 1885, appellant was convicted for following the occupation of selling spirituous, vinous and malt liquors in quantities .of one quart and less than five gallons, without first obtaining a license therefor, said occupation being then and there taxed by law, etc.
Upon the trial the county attorney introduced in evidence the order in the commissioners’ court of Caldwell county levying one-half of the State occupation tax for following the occupation of selling spirituous and malt liquors in quantities of one quart and less than five gallons. This order was made in May, 1882, and for the year 1882. At the May term, 1883, a similar order was made. The indictment charges and the proof shows that the sale of the whisky occurred on the 15th day of January, 1883.
Appellant objected to the introduction in evidence of either of these orders. To the first his objection was that the order for the *413year 1882 expired and ceased to operate upon the expiration of that year; and to the second order his objection was that it did not retroact and was not in force until after its enactment, and hence there was no action or order of the commissioners assessing the tax for this occupation at the time of the sale of the liquor.
We are of the opinion that the order of May, A. D. 1882, was in force until May, A. D. 1883, unless sooner changed by the court.
Appellant also objected to these orders because they were not made by a full bench, as is required by article 1517, Revised Statutes, which article requires all of the members of the court to be present when any county tax is levied. When the county tax for 1882 was levied the minutes of the court stated that “a full quorum of the court were present.” How it is urged by appellant that this excerpt from the minutes shows that all of the members of the court were not present, and hence the levy was illegal.
We are not to be understood as holding that the burden was upon the State to show that all the members were present. This, nothing to the contrary appearing, we think would be presumed.
Does it appear from the minutes of the court that all of the members of the court were not present when the tax was levied? A quorum of the commissioners’ court is constituted by three members, including the county judge, for the transaction of all business except that of levying county taxes. (Rev. Stats., article 1511.) A full bench only can levy a county tax. But do the words <£ a full quorum ” mean that a less number than a full bench were present? They certainly do not. These words may have been employed by the clerk for the very purpose of showing that all of the members of the court were present.
The court below in the general charge instructed the jury in effect that to convict they must believe from the evidence that defendant wTas, at the time alleged in the indictment, engaged in the occupation of selling the liquors, etc., in quantities of one quart and less than five gallons. At the request of the county attorney the jury were instructed in substance that if defendant was engaged in the business of selling spirituous liquors, etc., omitting the quantity sold, they should convict. Of course this charge did not authorize, nor was it intended to authorize, the jury to convict without proof that defendant sold the whisky in quantities of one quart and less than five gallons.
The objection to the charge given at the request of the county attorney is that it authorizes a conviction upon proof that the defendant was engaged in the occupation of selling whisky in any *414quantities, whereas the true rule is that defendant must be engaged in the occupation of selling liquors in quantities of one quart and less than five gallons. This must be his occupation, and being in the pursuit of this occupation without license, or without having paid the tax, he is gnilty of violation of the Code. And unless this be his occupation a single sale of liquor will not constitute the offense.
This special requested charge was error, for which the judgment is reversed and the case remanded.
Reversed and remanded.
[Opinion delivered June 10, 1885.]