Ex parte Day

LATTIMORE, Judge. Complaint was filed in a justice court of Travis County charging that appellant exhibited a machine and instrument, viz: a coin operated handkerchief vending machine intended and designed for use by the general public and for the purpose of vending handkerchiefs, and being a machine for which an occupation tax is required to be paid,— said machine being commonly known as a five cent machine, requiring and being operated by depositing therein a five cent coin as a fee for each operation and for each handkerchief sold by said machine; said appellant not having annexed or attached to said machine a tax receipt for the current year of 1934, in violation of House Bill 174 passed at the First Called Session of the 43rd Legislature. This complaint was filed April 13, 1934. Warrant for the arrest of appellant issued the same day, as did an application for habeas corpus, hearing on which was set for April 18th. On this last named day it appears that an agreed state of facts was signed and filed in the district court, and thereupon appellant was remanded to the custody of the constable, from which order and judgment he prosecutes this appeal. Appellant’s complaint is of the unconstitutionality of the act, based on an attempted exemption of pay toilets and drinking cup vending machines, which appellant says makes the act obnoxious to section 2, art. 8 of our Constitution, providing that all occupation taxes shall be equal and uniform upon the same class of subjects within the limits of the authority levying the tax; also he complains on the same ground because of the fact that the tax laid on marble machines in the act is greater than and measured by a different standard than on “Other exactly similar amusement machines.” Section 1 of the act is here quoted in full: “That there is herby levied an Annual Occupation Tax upon, and which shall be collectéd from and paid by, every owner, manager, or exhibitor of every coin operated phonograph, electrical piano, electrical batter, graphophone, weighing machine, target pistol, miniature golf machine, miniature football machine, miniature baseball machine, miniature race track stero — 370 — scopic machine, gum machine, candy machine, cigarette machine, handkerchief machine, sandwich machine, or any other class or kind of machine, whether enumerated or not, where a. fee is charged, which is used for the purpose of amusement, entertainment or for vending commodities, merchandise, confections, or service of any kind and which is operated by coins or metal slugs or tokens similar to coins, where such fee is in excess of five cents (5), an annual occupation tax of Ten Dollars ($10.00) on each machine;.where such fee is five cents (5), an annual occupation Tax of Five Dollars ($5.00), on each machine; and where such fee is one cent (1), an Annual Occupation Tax of One Dollar ($1.00) for each machine; provided that from every owner, manager, or exhibitor of every coin operated marble machine, marble table machine, marble shooting table, or marble machine of any description, whether enumerated or not, where a fee is charged, whether used for the purpose of amusement, entertainment, or for vending commodities, merchandise, confections, or services of any kind, and which is operated by coin or metal slugs or token similar to coins or metal slugs where such fee is one cent (1) or more, an Annual Occupation Tax of Ten Dollars ($10.00) for each machine; provided that the provisions of this subdivision shall not apply to pay telephones, gas meters, pay toilets and/or sanitary drinking cup vending machines which are operated with coins. It shall be unlawful to operate, show or exhibit any of the machines or instruments covered by this subdivision without having annexed or attached thereto where same is plainly visible, the tax receipt covering such machine or instrument for the current year for which same is operated, shown or exhibited; provided that all funds derived from the occupation tax on such marble machines shall be placed to the credit of the State Available School Fund.” Ananlyzing this statute, we note therein a clause which says: “Provided that the provisions of this subdivision shall not apply to pay telephones, gas meters, pay toilets and/or sanitary drinking cup vending machines which are operated with coins.” We have examined said section 1, and indeed all other parts of the act, with most scrupulous care in order to see if there be found any “subdivision” thereof to which.such language could be applicable, and have found none. The State insists that said word “Subdivision” has reference to that part of the act immediately preceding said exemption clause, which part of the act so claimed to be referred to appears set off by two semicolons, and which contains the legis — 371 — lative announcement of the tax to be levied on all sorts of marble machines, and the State insists that the language of the act and of the proviso just quoted, evidences the intent of the legislature to exempt pay telephones, etc., only from the tax levy upon and rules made applicable to marble machines. We have much respect for the views of our State’s attorney, — and for us to agree with him and so hold might shorten this opinion, —but careful search for authority justifying us in so holding . has brought no result. To be sure when a whole is divided, there is division; and when any such division is further divided, there is subdivision; but the mere statement of the existence of one subdivision necessarily states the existence of one or more other subdivisions, and we have found no authority justifying the courts in agreeing with the State in this regard, and permitting or allowing the courts to select any particular part of the act which may be set off merely by punctuation, and arbitrarily holding it to be the part of the act referred to as a subdivision. In framing a law as part of the structure of government, it manifestly will not do to insert punctuation here and there in a long statute, — whether commas, colons, semicolons or periods, — and then insert a proviso as is here done, merely stating “Provided that the provisions of this subdivision,” etc., etc., and hold this to be sufficient without further identification of that part referred to as a subdivision. If such rule be laid down by any court of last resort, then indeed would confusion be worse confounded, for all parties comprehended could with equal standing and force insist that the words “This subdivision” should be given application to that part of the act thus set off by punctuation whose such construction would be to them most favorable. The reasoning above indulged is backed up in the case before us by the further fact that as far as we can see there is not one thing laid down in the clause of the act relating to marble machines which could under any circumstances be held to refer to or applicable to pay telephones, etc., making necessary the conclusion that there could be no need for the clause exempting such machines from such provisions. Nor do we think the use of the word “This” in the clause attempting exemption of pay telephones, etc., helps the State in said contention. The same expression appears later in the act wherein it is said “It shall be unlawful to operate, show or exhibit any of the machines or instruments covered by this subdivision” without having a tax receipt for the current year attached. No one could — 372 — claim that the words “This subdivision” so used could have reference only to marble machines. Considering appellant’s first contention regarding this law in connection with that of the State, and further examining said act, we note that the caption thereof states, among other things, as follows: “An Act levying an Annual Occupation Tax upon all machines * * * operated by coins, * * *; exempting pay telephones, gas meters, pay toilets and sanitary drinking cup vending machines from the provisions of this Act.” Section 35, art. 3 of our Constitution provides that the subject of all legislative bills, except general appropriation bills, shall be expressed in the title, and if there be other subjects embraced in any bill not so expressed, — as to them the act shall be void. It has been held that the effect of this language is to make the caption a part of the bill, and that if any parts of the act lie outside the caption, same may be rejected without holding the entire act unconstitutional, when the law is so framed as that this may be done without destroying the whole law, and in case there be words used in a statute making same obscure or doubtful, the caption may in such case be looked to in determining the construction to be given to such obscure or doubtful word or expression. Beard v. Rowan, 9 Pet., 301; Mayor of Baltimore v. Moore, 6 Har. & J., 375; Edwards v. Pope, 4 Ill., 465; Garrigus v. Board, etc., 39 Ind., 66. The clause of this act attempting to state the exemption of pay telephones, etc., as appears from inspection thereof, exempted the named machines, — if they be machines, — from the provisions of this subdivision, whereas the caption of the act sets out as part of its purpose, to exempt from the provisions of the act pay telephones, etc. In line with what we have before said, we conclude from consideration of the whole act, including the caption, that we should construe the words “This subdivision,” in each place where they occur in said act, as meaning and intending “This act.” Is the act to be held unconstitutional because the legislature expressly exempts from its operation pay toilets and sanitary drinking cup vending machines? We state the question thus because of the fact that in Ex parte Walker, 52 S. W. (2d) 266, we held the exemption of pay telephones and gas meters not sufficient ground for holding a similar act unconstitutional. This court recognizes that primarily it must be left to that branch of government whose right and duty it is to levy taxes, —to determine upon what property or occupation same may or should be levied, and as has been before said, only when stat — 373 — utes are imposed which base their levy on unjust and unfair classifications or principles, or are such as to operate with gross inequality, — will the courts interpose and arrest the course of such legislation by declaring same void. Cooley on Taxation, 126, 127; Com. v. Banks, 5 Allen, 428; Mr. Cooley in his work on Constitutional Limitations, 598, says that: “The power to impose taxes is one so unlimited in force and so searching in extent, that the courts scarcely venture to declare that it is the subject of any restrictions whatever, except such as rest in the discretion of the authority which exercises it.” In McCulloch v. Maryland, 4 Wheat., 430, Chief Justice Marshall said that it was unfit for the judicial department to inquire what degree of taxation is the legitimate use, and what degree the abuse of the power of the Legislature. That the courts have nothing to do with the policy, wisdom, expediency, or propriety of legislative enactments, is almost a maxim. Ollre v. State, 57 Texas Crim. Rep., 534. It is equally true that the necessity for particular legislation is to be judged by the legislature, and that their acts in such regard are final, unless in plain, clear and unequivocal terms that action is contrary to constitutional limitations. See Cooley on Constitutional Limitations, pp. 598; 673-6; Cooley on Taxation, pp. 1-4; 384; 512; Dwarris on Const., pp. 444-467. Our Constitution expressly authorizes the levy of occupation taxes, and the constitutionality of a statute is presumed unless and until the contrary is made evident, and if possible the courts must give statutes such construction as will not make them contravene the Constitution. Ex parte Mabry, 5 Texas App., 98. The courts should not hold a law unconstitutional unless same is clearly in conflict with some provision of same. Davey v. Galveston County, 45 Texas, 299. It is plain that this court must indulge the presumption that pay toilets and sanitary drinking cup vending machines do not belong in the class of subjects such as are taxed in this act, or else that they have characteristics such as justified the conclusion of the legislature that they could be exempted,- — -unless the contrary is shown in the record before us. We observe that no trial was had in the court below. No witness gave testimony upon the extent of which, the knowledge of the witnesses, their apparent truth or falsity, might depend the exact similitude of marble tables and machines which vend music, gum, mints, etc., with pay toilets and sanitary drinking cup vending machines. With the utmost respect to those who drew and signed an agreement that there is such exact similarity, this court is compelled — 374 — to hold that it will not embark- on the uncharted and dangerous practice of holding solemn acts- of the legislature unconstitutional upon no other showing of the facts involved than results from such agreement. Article 340, Rev. Civ. Stats., 1925, reads as follows: “No admissions- made by the district or county attorney in any suit or action in which the State is a party shall operate to prejudice the rights of the. State.” Whether a pay toilet, — whose character and operation is affected by considerations of public necessity, health and convenience, — should be classed with marble machines and tables, which vend only amusement apparently of the same class as would result from a roulette wheel, or any other game of chance forbidden by our Penal Code, — seems to us to be a matter as fully within the knowledge and judgment of the members of the legislature as of the gentlemen who entered into the agreement which we find on file in this record. Equally so as to the similitude between the machines taxed and a sanitary drinking cup vending machine. For substantially the same reasons we conclude that appellant’s second contention, viz: that marble machines must be taxed as are those machines whose operation vends some commodity of use to the public, and that same are therefore in the same class of subjects, — can not be sustained by us from the record before us. So concluding, we hold the judgment remanding appellant to be correct, and the judgment will be affirmed. Affirmed.