Dunlap v. State
| Decision Date | 07 May 1918 |
| Docket Number | 6 Div. 409 |
| Citation | 78 So. 638,16 Ala.App. 440 |
| Parties | DUNLAP v. STATE. |
| Court | Alabama Court of Appeals |
Appeal from Circuit Court, Jefferson County; Wm. E. Fort, Judge.
F.S Dunlap was convicted of operating a penny-in-the-slot machine without a license, and he appeals. Affirmed.
Frank S. Andress, of Birmingham, for appellant.
F. Loyd Tate, Atty. Gen., and W.S. Welch, of Bessemer, for the State.
Section 1, subsec. 62, of the revenue law (Acts 1915, p. 509) provides a license "for each penny-in-the-slot machine $5.00." Section 1 of the act requires the payment of the amount of the license, and section 7 provides a penalty for violating the requirements of the law. The prosecution was begun by affidavit, and on the trial in the circuit court the solicitor filed an information based upon the affidavit, and properly charging the offense; to this information the defendant filed demurrer, raising the question of the constitutionality of the section under which the proceedings were had. In view of the undisputed evidence in the case, we take it that a determination of the demurrer involves the whole question presented.
The tax imposed is $5 per annum for each penny-in-the-slot machine, and prima facie is not unreasonable. The reasonableness of a license tax is not determined by the business done by a single individual (N.C. & St. L. v Attalla, 118 Ala. 362, 24 So. 450), nor should it, we think, be determined with reference to slot machines when used for the sale of a single kind of merchandise. The law is not discriminatory, as the imposition of the license is on all alike. It might not be a profitable way to sell chewing gum, but that does not establish the fact that slot machines could not be operated profitably in other ways, and for the sale of other articles. The license is not upon chewing gum nor upon dealers in chewing gum, but upon penny-in-the-slot machines, for whatever purpose or purposes they may be operated. The chewing gum merchant can sell his wares in the regular way without being subject to the license, but if he elects to operate or use a device for which a license is required, he pays the license on the device, and not on the chewing gum. The law is not a prohibition of the use of the machine, but merely places a license for its use, which is not in violation of constitutional provisions as to extent or uniformity of tax rate upon property or as to discrimination. Phoenix Carpet Co. v. State, 118 Ala. 143, 22 So 627, 72 Am.St.Rep. 143.
Paraphrasing what was said in Quartlebaum v. State, 79 Ala. 2, with regard to sewing machines:
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