Decided July 19, 1932.
1. — Jurisdiction — Practice in Appellate Courts.
Questions of law involving the construction of penal statutes must be controlled by the rulings of a court exercising criminal jurisdiction, and where Court of Criminal Appeals has adjudicated the matter the Supreme Court will bow to its decisions, and in matter of civil law that court will follow the rulings of the Supreme Court.
2. — Licenses — Coin Vending Machines — Constitutional Law.
Statutes regulating the licensing of coin vending machines, but excepting telephones and gas meters therefrom, is constitutional. Ex parte Walker, 121 Tex.Crim. Rep., 52 S.W.2d 266, followed.
Question certified by Court of Civil Appeals for the Second District, in an appeal from Tarrant County.
Suit was filed by C. F. Souter and others against L. P. Card, tax collector of Tarrant County, to restrain him from collecting from plaintiffs taxes levied against them for the operation of certain coin vending machines, under Article 7047, subd. 23, R. S., 1925. The plaintiffs alleged that said act was in contravention of Article 8, sec. 2 of the State Constitution, providing that all taxes shall be equal and uniform, because it expressly exempted therefrom pay telephones and gas meters. Defendant answered by general demurrer. The trial court held the act unconstitutional, which judgment was reversed and rendered by the Court of Civil Appeals and ordered that the injunction granted by the trial court be dissolved to all plaintiffs except two to whom the law had no application. Upon a second motion for rehearing, however, the Court of Civil Appeals certified to the Supreme Court the question as to the constitutionality of the act involved.
The question was referred to the Commission of Appeals, Section B, for their opinion thereon and the Supreme Court adopted same and ordered it certified in answer to the question.
Jesse E. Martin, Criminal Dist. Attorney, and Willis M. McGregor, Assistant Crim. Dist. Atty., both of Fort Worth, for appellant.
Subdivision 23, Article 7047, R. S., 1925, as amended by 42d Legislature, p. 355, is in all things valid and enforceable as a tax measure and is not in violation of Section 8, Art. 2, of Constitution. Camp v. State, 135 S.W. 146; Pullman P. C. Co. v. State, 64 Tex. 279; Texas Co. v. Stephens, 100 Tex. 628, 103 S.W. 485; Ex parte Hutsell, 182 S.W. 458; Kehrer v. Stewart, 197 U.S. 60.
J. C. Duvall and Alva W. Bounds, of Fort Worth, for appellees.
On the proposition that the act involved is unconstitutional, appellees cite: Davis v. White (Civ. App.), 260 S.W. 138; Hoefling Son v. San Antonio, 85 Tex. 228, 20 S.W. 85; Ex parte Jones, 38 Tex.Crim. Rep., 43 S.W. 513; Ex parte Overstreet, 39 Tex.Crim. Rep., 46 S.W. 825; Owens v. State, 54 Tex.Crim. Rep. S.W., 1075.
The Honorable the Court of Civil Appeals for the Second Supreme Judicial District has certified the question, whether Subdivision 23 of Art. 7047, Rev. Civ. Stat., 1925, as amended by Chap. 212 of the Acts of the 42d Legislature, regular session, is constitutional. Said Subdivision 23, as amended, reads as follows:
"Coin Operated Vending Machines. — From every owner, manager, or exhibitor of every coin operated phonograph, electrical piano, electrical battery, graphophone, weighing machine, target pistol, miniature golf machine, miniature football machine, miniature baseball machine, miniature race track stereoscopic 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 (5) Cents, an annual tax of Ten Dollars ($10.00), on each machine; where such fee is Five (5) Cents, an annual tax of Five Dollars ($5.00), on each machine; and where such fee is one (1) Cent, an annual occupation tax of One ($1.00) Dollar for each machine; provided that the provisions of this subdivision shall not apply to pay telephones and gas meters 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."
Subdivision 43 of said amended act makes any violation thereof a misdemeanor, punishable upon conviction by a fine not exceeding fifty ($50.00) dollars.
This precise question was considered by the Honorable Court of Criminal Appeals in Ex parte W. O. Walker, 121 Tex. Crim. 145, 52 S.W.2d 268, and the conclusion reached that said Act is constitutional. Reference is here made to the opinion of Presiding Judge Morrow of that court and Judge Hawkins' opinion on motion for rehearing.
1 The decision of the Court of Criminal Appeals upon a question involving the penal laws should be followed by the civil courts; violations of the act in question are punishable by infliction of the penalties prescribed by the statute through the procedure provided for that purpose by the Code of Criminal Procedure.
2 The prosecutions thereunder must be instituted and tried in the courts having criminal jurisdiction. Appeals lie in criminal cases to the Court of Criminal Appeals as the court of last resort and its decisions are final and settle the law in criminal matters, at least as to all inferior courts over which it exercises appellate jurisdiction. Upon questions of criminal law which might arise in the Supreme Court, that court will bow to the decisions of the Court of Criminal Appeals and upon those of civil law the latter will accept the rulings of the Supreme Court. State v. Schwarz, 103 Tex. 119, 124 S.W. 420; State v. Savage, 105 Tex. 467, 151 S.W. 530.
In accordance with the holding of the Court of Criminal Appeals, we recommend that the certified question be answered in the affirmative.
The opinion of the Commission of Appeals answering the certified question is adopted and ordered certified.
C. M. CURETON, Chief Justice.