Macke v. Commonwealth

Prentis, C. J., delivered the opinion of the court. G. B. Macke, upon a warrant charging him with unlawfully operating a certain slot machine, in the operation of which cigarettes were disposed of, unlawfully and in violation of section 198 of the Tax Code, has been convicted, first before the trial justice, and then, upon appeal, in the Circuit Court of Arlington county. He was fined $20.00 and costs, and the vending machine has been ordered forfeited to the Commonwealth. The court certifies the evidence to be: “The following evidence on behalf of the Commonwealth was all of the evidence introduced on the trial of this cause, and comprises in to to the statements of facts agreed upon by counsel for the Commonwealth and counsel for the defendant, no evidence having been introduced on behalf of the defendant; that G. B. Macke, the defendant in this cause, is the owner of numerous automatic vending or slot machines that are used for the disposal of candy, chewing gum, matches and cigar — 1018 — ettes; that the said defendant did on the twelfth day of November, 1930, obtain from the commissioner of revenue of Arlington county, Virginia, a license to place and use his automatic candy vendors or slot machines in one of the local business concerns of Arlington county, Virginia, the Commonwealth’s attorney for said county having first certified to the said commissioner of revenue that there was, in his opinion, no- element of chance involved in the operation of the machine, and the said G. B. Macke having signed an affidavit to' the same effect; that the said defendant forthwith placed one of his said automatic candy vendors or slot machines in one of the local business concerns and proceeded to carry on his business as authorized by his license; that on the fifth day of December, 1930, the said G. B. Macke, applied and obtained from the said commissioner of revenue of Arlington county, Virginia, a tobacco license for the retailing of tobacco, and on the sixth day of December, 1930, in Arlington county, Virginia, in the same local business concern did place one of his automatic vending or slot machines that disposed cigarettes, and did operate his said vending or slot machine, in the operation of which cigarettes were disposed of to the public; that the purchasers of cigarettes through this machine were all of legal age, and no minors operated said machine, or received cigarettes from anyone of said purchasers who' did operate same; that there is no element of chance involved in the machine’s operation, as a standard and regulation package of twenty cigarettes were dispensed upon the insertion of one nickel and one dime and the pulling of a knob for the release of the said package of cigarettes. The various brands dispensed in this machine were ‘Old Gold,’ ‘Camel,’ ‘Lucky Strike,’ and ‘Chesterfield’; that the merchant, tobacco and all other license laws of the State of Virginia were fully complied with by the said defendant, G. B. Macke; that the said defendant, G. B. Macke, was arrested on the sixth day of December, 1930, and charged with operating a certain slot machine, in the operation of which cigarettes — 1019 — were disposed of, unlawfully and in violation of section 198 of the Tax Code of the State of Virginia.” The two assignments of error raise substantially the same questions and may be discussed together, The accused made a motion to strike out all of the evidence on behalf of the Commonwealth and to discharge him, contending that section 198 of the Tax Code of Virginia, upon which the prosecution is based, violates section 52 of the Constitution of Virginia, in that it embraces more than one object, and that the offense charged is not a criminal act. So much of section 198 of the Tax Code as is pertinent reads: “Any person, firm or corporation having anywhere in the State of Virginia a slot machine of any description into which are dropped nickels or coins of larger denominations, to dispose of chewing gum or other articles of merchandise or for the purpose of operating musical or other devices that operate on the nickel-in-the-slot principle, used for gain, except as a pay telephone, shall pay for every such slot machine or musical or other device, as the case may be, a State license tax of $5.00 per year * * *.” Then follow various exceptions, which are here immaterial, and this significant proviso: “Provided, however, that nothing contained in this section shall be construed as permitting any such person, firm or corporation to keep, maintain, exhibit or operate any slot machine or other device, in the operation of which cigarettes are disposed of or in which the element of chance enters.” The section contains this penal clause: “Any person, firm or corporation having any such machine or other device and failing to procure a State license therefor, shall be subject to a fine of not less than $20.00 nor more than $50.00 for each offense, and such machine or other device shall become forfeited to the Commonwealth.” The clause of section 52 of the Constitution relied on reads: “No law shall embrace more than one object, which shall be expressed in its title * * *.” This clause has been so fully and frequently discussed and so — 1020 — often construed that we think it only necessary in this case to cite a few of the Virginia cases. The Tax Code is a general statute relating to taxation, and it has always been held, so' far as we are advised, that this constitutional inhibition was never intended ft> apply to general Code revision, or to a great subdivision thereof under a general but comprehensive title, but its purpose is to prevent the concealment of the real object of a particular statute when separate acts are passed. Hence, the adoption of a code by the general title is broad enough to cover any lawful enactment, notwithstanding section 52. Under the title, “The Tax Code of Virginia,” there was a general revision of the tax laws of the Commonwealth. This title, under that rule, is broad enough to cover any enactment pertinent, germane, congruous and having natural connection with the laws relating to the assessment and levy of taxes, licenses levied for the purpose of raising taxes and penalties for all violations of the statute covering that subject. Ingles v. Straus, 91 Va. 209, 21 S. E. 490; Iverson Brozvn’s Case, 91 Va. 762, 21 S. E. 357, 28 L. R. A. 110; Lacey v. Palmer, 93 Va. 159, 24 S. E. 930, 31 L. R. A. 822, 57 Am. St. Rep. 795; Bertram v. Commonwealth, 108 Va. 902, 62 S. E. 969; Commonwealth v. C. & O. Ry. Co., 118 Va. 261, 87 S. E. 622; Good v. Commonwealth, 155 Va. 996, 154 S. E. 477. Thus tested, section 198 of the Tax Code of Virginia does not violate Constitution, section 52. Provisions in this Code relating to licenses for the operation of slot machines, regulating their use by the licensees and imposing penalties for violations of the statute and for the abuse of the privilege accorded under the license, are all germane to the subject of taxation and congruous provisions of the “Tax Code of Virginia.” The motion to exclude all of the evidence, the refusal of the trial court to do so, and the resulting judgment require a construction of several sections of the Tax Code. Section 198, authorizing the license, contains these provisos: — 1021 — “Provided, however, that nothing contained in this section shall be construed as permitting any such person, firm or corporation to keep, maintain, exhibit or operate any slot machine or other device, in the operation of which cigarettes are disposed of, or in which the element of chance enters; and provided, further, that this section shall not apply to any merchant, who- has paid a merchant’s license tax and who owns such slot machine and simply uses same inside of his place of business for the purpose of making sales of his goods and merchandise, which goods and merchandise have been regularly purchased by said merchant; * * It is shown that the accused had a license to- operate this slot machine, and also a license to sell tobacco. Having no separate place of business, the accused placed his machine in the store of one of the local merchants of Arlington county, Virginia. He claims that because he had a mercantile license to sell tobacco, snuff and cigars by retail (section 201), he was authorized to use his slot machine for the purpose of selling cigarettes, notwithstanding the inhibition in section 198, because of the provision that a merchant who- has paid a merchant’s license tax may operate a slot machine. The general merchant, however, as we construe that statute (section 198), though he may also- have a retail tobacco license (section 201), and while he may maintain a slot machine without being required to take out a separate- license therefor, is not authorized to keep, maintain, exhibit or operate his slot machine either for the sale of cigarettes, because prohibited by section 198, or for any operation in which the element of chance enters, because prohibited by Code, section 4685. The accused secured a license to operate his slot machine, but certainly this affords him no immunity for its illegal operation. Then, when we examine the section relating to licenses to retailers of tobacco, section 201, we find that no person not a producer shall be allowed to sell by retail, tobacco, — 1022 — snuff and cigars without having obtained a specific license to do so, and for such privilege a specific tax of $5.00 is required, which shall be assessed and collected as other license.taxes, but shall not be in lieu of merchants’ licenses on purchases. The privilege granted to the retailer of tobacco by this section must be read in connection with section 198, and, so construed, does not nullify the clear inhibition against selling cigarettes by means of a slot machine. Neither the tobacco retailer, the general merchant, nor one duly licensed to operate a slot machine, is authorized to sell cigarettes in such a machine, because that method of selling cigarettes is expressly prohibited by that section. In this case the offense charged in the warrant was fhe operation of a slot machine whereby cigarettes were unlawfully sold. The judgment imposes the penalty which is provided for the violation of section 198. The penalty imposed by that section, however, is not for the abuse of the license privilege, nor for the unlawful operation of the slot machine, after having obtained a license, but is clearly limited to the operation of any such machine without first procuring a State license therefor. As penal laws should not be extended by construction, the specific penalties imposed by this section 198 cannot be imposed for the offense which is here proved. The offense which the evidence so clearly shows was not the failure to obtain a license, but the abuse of the privilege granted by the license—that abuse being the selling of cigarettes by means of the machine. That clearly violated section 198, for the selling of cigarettes in that way by any operator of a slot machine is expressly thereby prohibited. What penalty, then, if any, is imposed by law? This requires a reference to' another section of the Tax Code (136). That section is general, and imposes penalties for prosecuting a business, employment, or profession, without a license. Among other provisions there is this: “If any person, firm or corporation shall, in violation of law, commence to prosecute — 1023 — any business, employment or profession without a license, such person, firm or corporation shall be guilty of a misdemeanor, and unless otherwise specifically provided by law, shall, on conviction thereof, be fined not less than $5.00 nor more than $1,000.00 for each separate offense.” This section of the statute is, we think, broad enough to cover the offense here shown. Here Macke, under his license to operate a slot machine, was using it for a purpose expressly prohibited—that is, in the business of selling cigarettes in that unlawful manner, having no other license which authorized such sales of cigarettes by means of a slot machine. Certainly cigarettés may be lawfully sold, but to sell .them through a slot machine is unlawful. For this violation of the statute (198), the penalty which is authorized by the portion of section 136, which we have just quoted, may be imposed. Our conclusion, then, is that so much of the judgment as undertook to forfeit the slot machine to the Commonwealth is erroneous, but so much of it as imposed upon- the accused a fine of $20.00 for his unlawful use of it is authorized and justified by Virginia Tax Code, section 136. The judgment will, therefore, be reversed, in so far as it declared the machine forfeited to the Commonwealth, and affirmed as to the fine of $20.00. Partly reversed; partly affirmed.