*1 28 L.Ed.2d 91 S.Ct. U.S. overrule this contention. We judgment is affirmed. approved the Court.
Opinion alias, TAYLOR,
Light Townsend Appellant, Taylor, T.L. Appellee. Texas, STATE of
No. 47013. Texas. of Criminal
May 29, 1974. Sept.
Rehearing Denied Houston, Naron, appel- Edwin Joe
lant. Vance, Atty., Dist. C. Carol S. James Bennett, Dist. Jr., Asst. Brough, C. Robert Vollers, Houston, Attys., D. Jim Austin, for the Atty., State. State’s OPINION ROBERTS, Judge. engaging is for a busi-
The conviction
operate
coin-operated music ma-
ness to
*2
license;
supra,
the
Cooper,
involved
punishment
Hurt
without a
the
chine
Law,
prescribed
Chain Store Tax
which
assessed was a fine of $500.00
fees”;
example,
annual “license
for
certain
constitutionality
Appellant challenges the
dollar;
upon
was one
one store the fee
Tax.-Gen., V.A.T.S.,
13.17,
un-
Article
upon
store in excess
each additional
statute,
This
der which he was convicted.
one,
two,
six
not
fee was
but
exceed
16(1),
Sec.
reads:
dollars; upon
in ex-
additional store
each
five,
li-
to exceed
cess of two but not
either an
“The
fee for
annual license
dollars;
twenty-five
fee was
cense
shall
business license
a
continued, so that
graduated fee schedule
and
based
the number of music
be
on
scale,
top
end
each addi-
at the
pleasure, coin-oper-
and
number of skill
thirty-five,
the fee
tional store
excess of
licensee
ated machines
which each
Supreme
Tex-
was
Court
$750.00.
set fortti
any
shall
interest as
have
declaring
the fees
as wasted little time
article;
an-
and said
occupation
li-
imposed to be
taxes and not
($10.00)
fee
be Ten Dollars
nual
shall
fees,
spite
legislatively-
of their
cense
but
each
such
stated,
imposed
That Court
labels.
that
less
in no event shall such fee be
difficulty in
experience
no
. we
than
Fifty
more
Dollars
nor
reaching the
that
so-called
conclusion
($3,000.00).
Three
Dollars
Thousand
thereby
primarily
license fees levied
are
the tax
This fee shall be
addition to
occupation
supra,
Cooper,
Hurt v.
taxes.”
by
levied Article 13.02.”
pg.
at
899.1
appellant’s initial
that
contention
It
present
factors
instant
Other
are
imposed
an
by
fee
this Article
preclude
reaching
case which
our
a
such
and
occupation tax and not
license
easily.
example,
decision so
For
“occu-
equal
therefore must be
uniform. See
tax,”
pation
imposed by
Article
title
8,
3,
2,
1,
Tex-
Article
Article
Sec.
Sec.
13.02 V.A.T.S.
states:
which
Constitution,
as
Vernon’s Ann.St.
“(1)
owns,
Every ‘owner’ who
con-
It is
law that
generally
rule of
trols, possesses, exhibits, displays, or who
occupation
a fee
fee and not an
permits
displayed
to be exhibited
ap
primary purpose
tax if the
of such
any ‘coin-operated
this State
machine
pears
regulation;
but if
that
pay,
shall
hereby
and there is
levied
rais
primary purpose appears to
that of
be
machine’,
‘coin-operated
each
as defined
revenue,
are,
fact, occupa
ing
fees
such
13.01,
herein in Article
ex-
except as are
taxes,
regardless
the name
herein,
empt
an annual
tax of
Coop
they
designated.
which
Hurt v.
(Emphasis added)
$15.00.”
er,
(1937),
130 Tex.
is to differ 16 does the amended Section course, as question. Of of the machines prior law from the purpose *3 stated, a statute simply because previously occupa- not an and a license fee it prevent thing not is one does says it the with thus confronted tax. We in fact. being thing another the to imposed in addition following: a fee 13.02, V.A.T.S. Art. “occupation tax” of law previous case of small amount The law, graduated is prior which, unlike examination. subject bears this same li-a machines number of Thompson, according to the 472 S. case of Calvert The in, an arbi- with an “interest” 1971), has censee (Tex.Civ.App.- Austin, W.2d 311 — and maximum trarily imposed minimum and ren- part and reversed affirmed change in the a of such The result (Tex.Sup. fee. part, dered interest has an a who law is that licensee addressed itself to the constitution- 1972) amount pays the same article one machine portions of the ality of several interest who has There, as someone of Civil question. the Austin Court in- Also, has an who one 16 five machines. that the old Section concluded very pays the machines terest in 300 such was of 13.17 not Art. 50,- putting as a licensee ($3,000.00) same This former not unconstitutional. places business. machines in of 16 stated: each fee for “(1) The annual license purposes we have Since type place under business licensed that this does appeal assumed this this Article is $300.00.” only re impose only a license fact gradu such.a
maining question is whether Thus, imposed a the former “license fee” stand constitutional ated fee meets per year place flat fee of on each has is true that State it $300.00 ards. While business2 licensed under the act. On in the ex broad discretion classification Texas, appeal Supreme Court also power regulation, ercise of all legislative that stated that the “clear be valid Court to a rule of law that order (Art. V.A.T.S.) intent of the class particular Act within a things was to regulate engaged those the busi- affected alike. must be similarly situated Welch, Ry. dealing coin-operated ness machines Fort D.C. Co. v. Worth & ” However, (Emphasis added) . (Tex.Civ.App. Amarillo, Supreme appellant’s Court itself to contention refused). did address writ The licensing The present system of the 16. of fee former Section per case apparently now before this is well Court unreasonable taken. $10.00 Attorney Opinion Legislature, 2. Texas General’s No. M- that . . .in 1969 the portion response increasing dealt with of the violence this to a trend of illegal activity act and concluded that a around licensee other which centered pro- special necessarily required night clubs, a statute was not created taverns separate study problem. cure That license for each location committee to com- placed, engaged where one of his machines was unless mittee determined that some of those business had licensee carried on his “distinctive busi- in the machine gained great fi- ness” also at location. deal of control over beverage nancial interest in certain alcoholic passed. Thompson Calvert, then the second case of 13.17 was businesses. Attorney supra, p. 97, also, 489 S.W.2d at .” Texas General’s history briefly Opinion 449, supra. of Texas traced No. M— They now-questioned legislation. stated apparently operated rests machine classification music machine without license. reg- by the at a theory it takes “x” amount of Punishment was assessed court State, prop- per ulation fine. $500 erly supervise coin-operated machine Appellant causing was convicted of theory industry. obviously fails Such operated coin (jukebox) machine arbitrarily-im- light when viewed in of the placed in Howard’s Drive Inn Houston posed maximum minimum and fees. agreement by under an which he was to act, effect, regulation indicates that the fifty receipts percent gross receive of the of a machine is more licensee with one compensation. of the machine as It was regulation than someone difficult appellant established that neither his nor machines, supervi- with five and that company, Taylor Company, had a Sales 50,000 easily sion of machines can be as valid business or license is- accomplished as that a differ- Such Vending sued Texas Commission *4 absolutely entiation bears re- no reasonable (now the Texas Amusement Machine Com- purposes accomplished lation to the mission). act, by the and there is no substantial basis imposed against the discrimination Appellant challenges the constitution- operator “one-horse” or in favor of the ality of Article Title 122A-Taxa- very operator. large Dodgen De- v. tion-General, V.A.T.C.S., he under which puglio, 538, 146 Tex. 209 588 16(1) convicted. of the stat- Section (1948). has exceeded its ute reads follows: power here, in establishing a classification system without a basis substantial for “The annual license fee for either an same, unreasonable, and one which is arbi- license shall or a business trary capricious.4 Wood, Wood be of music and the based the number 350, also, Tex. (1959); S.W.2d 807 see pleasure, coin-oper- number of skill and City Reed Waco, of (Tex. S.W.2d 247 in ated machines which each licensee Civ.App. Waco, writ refused). in shall have interest as set forth article; and said an- Section 8 of hereby We hold that Sec. 16 of Art. nual fee shall Dollars be ($10.00) Ten invalid, 13.17 is inope unconstitutional and coin-operated for each such but Appellant’s requested rative.5 relief is be less than no event shall such fee granted; judgment is reversed and Fifty Dollars nor more that prosecution ordered dismissed. ($3,000.00). Three Thousand Dollars This fee shall be addition to the ROBERTS, Judge. levied Article 13.02.” that the fee Appellant contends DOUGLAS, Judge (dissenting). occupation this Article Ar- appeal requirements This is an a conviction for tax which violates the from engaging in Texas operating a business of a coin 2 of the Constitution ticle Section Clearly, however, Obviously, today practitioner. 4. is tablished our decision not whole- every rejection for such discrimina- sale fee there is a rational basis attorney just happens type tion; young of law out which graduated to be based on some sup- financially sys- generally able scale. The of such a is not school degree always upheld port that he will be tem is a his Bar will where there discriminatory years. substantial basis for classifica- able to later good example system presently tion. A is the imposi- does not contain non-severabil- used the State Bar of Texas in its Section 16 voiding lawyers ity clause, would necessitate the fees for this State. which of annual upon holding newly attorney, one first the entire act licensed inoperative. required pay years, This is unlike Section section is few is substan- tially against less than one levied the es- occupational coin-operated machines and businesses requires “all taxes machines, prevent same and to equal dealing and uniform these shall be alternative, having subjects.” he In the these businesses class of fee, in, vi- certain interests if a license concurrent financial contends such with, provi- equal privileges dealings or unauthorized financial rights olates the beverage certain sions of Article 3 of Consti- alcoholic businesses.” Section tution. Calvert, Finally, Thompson v. 489 S.W. (Tex.Sup.Ct., 1972), and 2d 95 traced histo-
The distinction between statute, Tex.Jur.2d, ry challenged noting: Li- tax statutes is stated censes, 29, page 620: record that “It shown principle response Legislature,
“The of distinction between to trend grounded increasing illegal ac- .regulatory tax statutes violence and other Accordingly, tivity raising revenues. which centered around taverns clubs, primary purpose special a statute night when the created a committee study prescribing raising problem. fees is the of reve- That committee nues, engaged tax- the fees are fact determined that some of those es, regardless designated. of how On machine business hand, primary purpose the other if gained great had deal control over regulation, the fees levied are license financial interest certain alcoholic beverage fees and not taxes.” then businesses. 13.17was *5 passed. . Cooper, In Hurt v. 130 110 Tex. S. cert, The record is devoid of evidence (1937). granted, W.2d 896 may which this Court conclude that Dallas, writ, (Tex.Civ.App. 1938), no amounts to be levied under this ex- Article Court of Texas held certain ceed regulatory needs. fees termed “license fees” under the levied primarily Chain Tax Act Store to be occu imposed appears It fees pation Among taxes. the factors consid 13.17, supra, fees Article are to be license by ered arriving the Court in at deci its imposed purpose meeting regu- sion following: were the act (1) latory occupational needs and taxes. separate levies, two graduated Is the created badly act itself declared that the State arbitrary un- 16 of the Article revenue, Section need of and (3) that reasonable? appeared amounts levied in ex far cess needs. Depuglio, 146 Tex. Dodgen it is written: (1948), challenged
The of the statute presently us before bears little resemblance require a may validly a state “Where to that Chain Tax Store Act. classifications, license, may make such applied rate to be to determine the as exemptions or subclassifications fee is per although a uniform $10 necessary, long as such classi- so deemed pro- both minimum and maximum fees are and arbi- not unreasonable fications are 16(1) specifically pro- vided for. Section is never ‘A trary. classification ... vides that the fee “shall to addition inclusion arbitrary its or unreasonable 13.02,” the tax levied it- Article long as there so exclusion features provides self for “an annual be- the differentiation basis for some purpose declares the Section $15.00.” included subject matters tween classes of this to be as follows: compared to those excluded as the differentiation provided operation, provide comprehensive . . . pur- relation a reasonable regulation pleasure bears of music skill or established by the act. the fee classification accomplished
poses to be ’ of Article Section discrimina- . The mere fact that arbitrary and unreason- essentially necessarily 13.17is vitiate tion made does not classification, is no able. and unless there discrimination, substantial basis for the be affirmed. judgment should judicial inter- there is no warrant required ference. . . . All that dissent. MORRISON, J., in this joins applicable is that the shall be enactment alike under the same cir- all . assails cumstances. One who * * * carry must the classification showing that it does not burden basis, upon
rest reasonable but is
essentially arbitrary.” reading Appellant argues that a mere PARSONS, Appellant, Don Franklin un- the license fee classification established der 16 discloses that the minimum arbitrary
and maximum fees are and un- Texas, Appellee. The STATE section, reasonable. Under that the owner No. 49046. pays of one machine same fee as the five; Court of of Texas. Criminal owner hun- the owner of three dred machines the same fee the owner Sept. 18, 1974. urges six hundred. He that such mini- mum and maximum fees bear reason-
able relation regula- actual cost of
tion, that, therefore, the classifications arbitrary and unreasonable on their
face.
In the supporting absence of evidence
appellant’s position, merely we should not
assume that the license fee classifications arbitrary. presumed It is Leg-
islature acted within scope pow- of its
ers, and, if there could be a state of facts
justifying action, legislative pre- it is
sumed that such a state of facts exists.
Tex.Jur.2d, Law, Constitutional
pages 385-386. no doubt had evidence
before it on subject. We do not. regarding absence evidence re-
quirements of regulatory efforts
field, to strike down such a of a
regulatory act substituting would constitute judgment policy considerations of
this Court for Legislature. those of the appellant, in my opinion, has not
carried his burden overcoming pre-
sumption of statutory by showing