OPINION
ROBERTS, Judge.
The conviction is for engaging in a business to operate a coin-operated music ma[550]*550chine without a license; the punishment assessed was a fine of $500.00
Appellant challenges the constitutionality of Article 13.17, Tax.-Gen., V.A.T.S., under which he was convicted. This statute, Sec. 16(1), reads:
“The annual license fee for either an import or a general business license shall be based on the number of music and the number of skill and pleasure, coin-operated machines in which each licensee shall have any interest as set fortti in Section 8 of this article; and said annual fee shall be Ten Dollars ($10.00) for each such coin-operated machine, but in no event shall such fee be less that Fifty Dollars ($50.00) nor more than Three Thousand Dollars ($3,000.00). This fee shall be in addition to the tax levied by Article 13.02.”
It is appellant’s initial contention that the fee imposed by this Article is, in fact, an occupation tax and not a license fee, and therefore must be equal and uniform. See Article 8, Sec. 2, and Article 1, Sec. 3, Texas Constitution, Vernon’s Ann.St.
It is generally the rule of law that a fee is a license fee and not an occupation tax if the primary purpose of such fee appears to be that of regulation; but if the primary purpose appears to be that of raising revenue, such fees are, in fact, occupation taxes, regardless of the name by which they are designated. Hurt v. Cooper, 130 Tex. 433, 110 S.W.2d 896 (1937), after certified questions, 113 S.W.2d 929 (Tex.Civ.App. — Dallas, 1938, no writ). As stated in that case, it is sometimes difficult to determine whether a given statute should be classed as a regulatory measure or as a tax measure. See 14 Tex.L.R. 278 (1935— 36).
Hurt v. Cooper, supra, involved the Chain Store Tax Law, which prescribed certain annual “license fees”; for example, upon one store the fee was one dollar; upon each additional store in excess of one, but not to exceed two, the fee was six dollars; upon each additional store in excess of two but not to exceed five, the license fee was twenty-five dollars; the graduated fee schedule continued, so that at the top end of the scale, upon each additional store in excess of thirty-five, the fee was $750.00. The Supreme Court of Texas wasted little time in declaring the fees imposed to be occupation taxes and not license fees, in spite of their legislatively-imposed labels. That Court stated, “ . . . we experience no difficulty in reaching the conclusion that the so-called license fees levied thereby are primarily occupation taxes.” Hurt v. Cooper, supra, at pg. 899.1
Other factors are present in the instant case which preclude our reaching such a decision so easily. For example, an “occupation tax,” by title is imposed by Article 13.02 V.A.T.S. which states:
“(1) Every ‘owner’ who owns, controls, possesses, exhibits, displays, or who permits to be exhibited or displayed in this State any ‘coin-operated machine shall pay, and there is hereby levied on each ‘coin-operated machine’, as defined herein in Article 13.01, except as are exempt herein, an annual occupation tax of $15.00.” (Emphasis added)
Jfc * * * * *
As stated in Art. 13.17, Sec. 16, the graduated “license fee” is in addition to the “occupation tax” of $15.00 a year set out above. Unlike the Hurt v. Cooper case, supra, the challenged statute in this case does not contain any language which could [551]*551directly tie it to a revenue-raising motive on the part of the legislature. See n. 1, supra. Instead, the initial section of Article 13.17 states that the purpose of the act is to “provide comprehensive regulation” of the machines in question. Of course, as previously stated, simply because a statute says it is one thing does not prevent it from being another thing in fact.
The small amount of previous case law on this same subject bears examination. The case of Calvert v. Thompson, 472 S. W.2d 311 (Tex.Civ.App.- — Austin, 1971), affirmed in part and reversed and rendered in part, 489 S.W.2d 95 (Tex.Sup. 1972) addressed itself to the constitutionality of several portions of the article in question. There, the Austin Court of Civil Appeals concluded that the old Section 16 of Art. 13.17 was not an occupation tax and was not unconstitutional. This former Section 16 stated:
“(1) The annual license fee for each type and place of business licensed under this Article is $300.00.”
Thus, the former “license fee” imposed a flat fee of $300.00 per year on each place of business2 licensed under the act. On appeal to the Supreme Court of Texas, that Court stated that the “clear legislative intent of the Act (Art. 13.17, V.A.T.S.) was to regulate those engaged in the business of dealing in coin-operated machines . ” (Emphasis added) However, the Supreme Court did not address itself to the validity of the former Section 16. The case now before this Court is apparently one of first impression, there having been no previous challenge to amended Section 16.
For the time being, we will concede that the amended Section 16 does not differ in its purpose from the prior law 3 and that it is, in fact, a license fee and not an occupation tax. We are thus confronted with the following: a fee imposed in addition to the “occupation tax” of Art. 13.02, V.A.T.S. which, unlike the prior law, is graduated according to the number of machines a licensee has an “interest” in, with an arbitrarily imposed minimum and maximum fee. The result of such a change in the law is that a licensee who has an interest in one machine pays the same amount ($50.00) as someone who has interest in five machines. Also, one who has an interest in 300 such machines pays the very same ($3,000.00) as a licensee putting 50,-000 machines in places of business.
Since we have for the purposes of this appeal assumed that this does in fact impose only a license fee, the only remaining question is whether such.a graduated fee system meets constitutional standards. While it is true that the State has broad discretion in classification in the exercise of its power of regulation, it is also a rule of law that in order to be valid all persons or things within a particular class or similarly situated must be affected alike. Fort Worth & D.C. Ry. Co. v. Welch, 183 S.W.2d 730 (Tex.Civ.App. — Amarillo, 1944, writ refused). The appellant’s contention that the present system of fee licensing is unreasonable is well taken. The $10.00 per [552]
Free access — add to your briefcase to read the full text and ask questions with AI
OPINION
ROBERTS, Judge.
The conviction is for engaging in a business to operate a coin-operated music ma[550]*550chine without a license; the punishment assessed was a fine of $500.00
Appellant challenges the constitutionality of Article 13.17, Tax.-Gen., V.A.T.S., under which he was convicted. This statute, Sec. 16(1), reads:
“The annual license fee for either an import or a general business license shall be based on the number of music and the number of skill and pleasure, coin-operated machines in which each licensee shall have any interest as set fortti in Section 8 of this article; and said annual fee shall be Ten Dollars ($10.00) for each such coin-operated machine, but in no event shall such fee be less that Fifty Dollars ($50.00) nor more than Three Thousand Dollars ($3,000.00). This fee shall be in addition to the tax levied by Article 13.02.”
It is appellant’s initial contention that the fee imposed by this Article is, in fact, an occupation tax and not a license fee, and therefore must be equal and uniform. See Article 8, Sec. 2, and Article 1, Sec. 3, Texas Constitution, Vernon’s Ann.St.
It is generally the rule of law that a fee is a license fee and not an occupation tax if the primary purpose of such fee appears to be that of regulation; but if the primary purpose appears to be that of raising revenue, such fees are, in fact, occupation taxes, regardless of the name by which they are designated. Hurt v. Cooper, 130 Tex. 433, 110 S.W.2d 896 (1937), after certified questions, 113 S.W.2d 929 (Tex.Civ.App. — Dallas, 1938, no writ). As stated in that case, it is sometimes difficult to determine whether a given statute should be classed as a regulatory measure or as a tax measure. See 14 Tex.L.R. 278 (1935— 36).
Hurt v. Cooper, supra, involved the Chain Store Tax Law, which prescribed certain annual “license fees”; for example, upon one store the fee was one dollar; upon each additional store in excess of one, but not to exceed two, the fee was six dollars; upon each additional store in excess of two but not to exceed five, the license fee was twenty-five dollars; the graduated fee schedule continued, so that at the top end of the scale, upon each additional store in excess of thirty-five, the fee was $750.00. The Supreme Court of Texas wasted little time in declaring the fees imposed to be occupation taxes and not license fees, in spite of their legislatively-imposed labels. That Court stated, “ . . . we experience no difficulty in reaching the conclusion that the so-called license fees levied thereby are primarily occupation taxes.” Hurt v. Cooper, supra, at pg. 899.1
Other factors are present in the instant case which preclude our reaching such a decision so easily. For example, an “occupation tax,” by title is imposed by Article 13.02 V.A.T.S. which states:
“(1) Every ‘owner’ who owns, controls, possesses, exhibits, displays, or who permits to be exhibited or displayed in this State any ‘coin-operated machine shall pay, and there is hereby levied on each ‘coin-operated machine’, as defined herein in Article 13.01, except as are exempt herein, an annual occupation tax of $15.00.” (Emphasis added)
Jfc * * * * *
As stated in Art. 13.17, Sec. 16, the graduated “license fee” is in addition to the “occupation tax” of $15.00 a year set out above. Unlike the Hurt v. Cooper case, supra, the challenged statute in this case does not contain any language which could [551]*551directly tie it to a revenue-raising motive on the part of the legislature. See n. 1, supra. Instead, the initial section of Article 13.17 states that the purpose of the act is to “provide comprehensive regulation” of the machines in question. Of course, as previously stated, simply because a statute says it is one thing does not prevent it from being another thing in fact.
The small amount of previous case law on this same subject bears examination. The case of Calvert v. Thompson, 472 S. W.2d 311 (Tex.Civ.App.- — Austin, 1971), affirmed in part and reversed and rendered in part, 489 S.W.2d 95 (Tex.Sup. 1972) addressed itself to the constitutionality of several portions of the article in question. There, the Austin Court of Civil Appeals concluded that the old Section 16 of Art. 13.17 was not an occupation tax and was not unconstitutional. This former Section 16 stated:
“(1) The annual license fee for each type and place of business licensed under this Article is $300.00.”
Thus, the former “license fee” imposed a flat fee of $300.00 per year on each place of business2 licensed under the act. On appeal to the Supreme Court of Texas, that Court stated that the “clear legislative intent of the Act (Art. 13.17, V.A.T.S.) was to regulate those engaged in the business of dealing in coin-operated machines . ” (Emphasis added) However, the Supreme Court did not address itself to the validity of the former Section 16. The case now before this Court is apparently one of first impression, there having been no previous challenge to amended Section 16.
For the time being, we will concede that the amended Section 16 does not differ in its purpose from the prior law 3 and that it is, in fact, a license fee and not an occupation tax. We are thus confronted with the following: a fee imposed in addition to the “occupation tax” of Art. 13.02, V.A.T.S. which, unlike the prior law, is graduated according to the number of machines a licensee has an “interest” in, with an arbitrarily imposed minimum and maximum fee. The result of such a change in the law is that a licensee who has an interest in one machine pays the same amount ($50.00) as someone who has interest in five machines. Also, one who has an interest in 300 such machines pays the very same ($3,000.00) as a licensee putting 50,-000 machines in places of business.
Since we have for the purposes of this appeal assumed that this does in fact impose only a license fee, the only remaining question is whether such.a graduated fee system meets constitutional standards. While it is true that the State has broad discretion in classification in the exercise of its power of regulation, it is also a rule of law that in order to be valid all persons or things within a particular class or similarly situated must be affected alike. Fort Worth & D.C. Ry. Co. v. Welch, 183 S.W.2d 730 (Tex.Civ.App. — Amarillo, 1944, writ refused). The appellant’s contention that the present system of fee licensing is unreasonable is well taken. The $10.00 per [552]*552machine classification apparently rests on the theory that it takes “x” amount of regulation by the State, per machine, to properly supervise the coin-operated machine industry. Such a theory obviously fails when viewed in light of the arbitrarily-imposed minimum and maximum fees. The act, in effect, indicates that the regulation of a licensee with one machine is no more difficult than the regulation of someone with five machines, and that the supervision of 50,000 machines can be as easily accomplished as that of 300. Such a differentiation bears absolutely no reasonable relation to the purposes to be accomplished by the act, and there is no substantial basis for the discrimination imposed against the “one-horse” operator or in favor of the very large operator. See Dodgen v. De-puglio, 146 Tex. 538, 209 S.W.2d 588 (1948). The Legislature has exceeded its power here, in establishing a classification system without a substantial basis for the same, and one which is unreasonable, arbitrary and capricious.4 Wood v. Wood, 159 Tex. 350, 320 S.W.2d 807 (1959); see also, Reed v. City of Waco, 223 S.W.2d 247 (Tex. Civ.App. — Waco, 1949, writ refused).
We hereby hold that Sec. 16 of Art. 13.17 is invalid, unconstitutional and inoperative.5 Appellant’s requested relief is granted; the judgment is reversed and the prosecution ordered dismissed.
ROBERTS, Judge.