# Ex parte Day > Court of Criminal Appeals of Texas · October 10, 1934 · 127 Tex. Crim. 367 URL: https://www.frixlaw.com/law-library/cases/4899277 ## Case - **Full name:** Ex Parte Joe Day - **Court:** Court of Criminal Appeals of Texas - **Decided:** October 10, 1934 - **Citations:** 127 Tex. Crim. 367; 76 S.W.2d 1060; 1934 Tex. Crim. App. LEXIS 441 - **Precedential status:** Published - **Opinion:** On rehearing by Morrow - **Judges:** Lattimore, Morrow - **Cited by:** 9 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4899277 ## Opinion text on motion for rehearing. MORROW, Presiding Judge. In his motion for rehearing appellant insists that we did not properly dispose of his contentions, and failed to pass on the propositions on which he relied. We have again carefully gone over the entire record in the light of the motion, and observe that appellant appears here as the operator of a handkerchief vending machine, for operation of which a fee of five cents was charged, — he being held in custody upon a complaint charging him with so operating said machine without paying the occupation tax fixed by statute; and without having attached to said machine a tax receipt for the current year as required by law. As stated in our original opinion, appellant sued out his writ of habeas corpus attacking said law on the ground chiefly that it exempted operators of sanitary drinking cup machines from payment of said tax, he claiming that sanitary drinking cup vending machines, are in the same *375 class as handkerchief vending machines, and that such exemption makes the law unconstitutional. That the Legislature may put in different classes, for taxing purposes, occupations or forms of business, — unless they be so nearly the same as that the attempted classification .is wholly without reason therefor, — seems announced in 17 R. C. L., p. 518, sec. 38, where it is also said that businesses of the same general class may be properly subdivided or reclassified where reason exists therefor. Particular attention is called to this because there are commodities and commodities; amusements and amusements; services and services, and if reason exists therefor the Legislature may subdivide or reclassify commodity vending machines, service vending machines and amusement vending machines. In Quong Wing v. Kirkendall, 223 U. S., 59 , it is laid down that a State enactment may make discriminations, if founded on distinctions not unreasonable or purely arbitrary. It is the general rule that all presumptions are in favor of the constitutionality of every law, and, as applicable to this case, it must be presumed that the conclusion of the Legislature that there existed reasonable ground for the classification made, must be upheld, unless and until the contrary is established. In this casé the question then arises, was it purely arbitrary and unreasonable for the Legislature to put sanitary drinking cup vending machines in a different class for taxation purposes from the other commodity vending machines named, including a handkerchief vending machine? The presumption being that some distinction existed upon which the Legislature based its classification, we look to the record before us to see if such presumption be there overcome. Appellant insists that he has filed in lieu of a statement of facts herein a “Stipulation” signed by counsel for both appellant and the State and approved by the trial court, in which he insists that he has established the truth of his contention regarding an arbitrary and unreasonable distinction and classification. In said Stipulation appellant has grouped all the machines, covered by the act referred to, into three classes: (1) Commodity venders; (2) Service venders; (3) Amusement venders. The character, kind, operation and use of each class is attempted to be covered by agreements or statements in separate paragraphs of said Stipulation. We quote the paragraph relating to commodity vending machines : “It is agreed that the following machines mentioned in said Act are used and designed for use in vending commodities, viz: gum machines, candy machines, cigarette machines, handker *376 chief machines, sandwich machines and sanitary drinking cup —vending machines. Each of said machines is operated by the use of a coin and when the coin is inserted in a slot in connection with said machine and a lever also in connection with said machine, is used, the machines furnishes one of the particular commodity which it is made to vend, to the purchaser. As indicated by their respective names, gum machines vend chewing gum, candy machines vend candy, cigarette machines vend cigarettes, handkerchief machines vend handkerchiefs, sandwich machines vend sandwiches and sanitary drinking cup machines vend sanitary drinking cups. There is no distinction between any of the various machines enumerated in this paragraph of this stipulation on the basis of the income derived therefrom, and it cannot be said that any one of said machines produce more income for the owner, manager or exhibitor thereof than any other of the machines enumerated in this paragraph. The amount of income is dependent in each instance on the favorable or unfavorable location of the machine and not upon its mechanical construction, or the product vended. There is no distinction between any of the machines mentioned in this paragraph on the basis of the character of the occupation or the nature of the business, pursued by the owner, manager or exhibitor thereof, or on the basis of the mechanical construction and operation of the machine. An annual occupation tax is levied, under the terms of the Act above referred to, upon the owner, manager or exhibitor of all of the machines enumerated in this paragraph except sanitary drinking cups vending machines. The owner, manager or exhibitor of a sanitary drinking cup machine is wholly exempt from such annual occupation tax although his occupation is identically the same as that pursued by the owner, manager or exhibitor of any other machine enumerated in this paragraph.” It will be noted that if effect be given to the agreements in said stipulation, this court would have to hold that there existed no distinction between any of said commodity vending machines, or the right of the Legislature to tax their operation, — based on the income, the character of the occupation, the nature of the business resulting from such operation, or the mechanical construction and operation of said machines. We would also have to hold that the occupation of him who owned, operated- or exhibited a sanitary drinking cup machine is identically the same as that of him who owns, operates and exhibits any of the other enumerated machines, one of which is a handkerchief vending machine such as appellant is here charged with oper *377 ating. The above is almost the language of the last clause of the quoted part of said Stipulation, and in everything except the announcement of the resultant legal conclusion, same seems to us to concede and establish appellant’s contention. Appellant overlooks the evident fact that most of his agreements in said Stipulation state conclusions and not legal facts. To say, for instance, that “It cannot be said that any one of said machines produce more income for the owner * * * than any other of the machines enumerated in this paragraph,” is but a fact conclusion necessarily arising or resulting, if true, from an actual comparison of the operation over a length of time of all those machines enumerated, — of which it is said in the Stipulation that “Thousands of each of the various kinds of machines enumerated * * * are in actual operation in Texas.” No witness could testify in such language to any such conclusion in court save he had shown himself possessed of the actual knowledge resulting from proven connection with such machines, — a fact which would also have to be demonstrated, — before he could give such testimony. So also of the conclusion that the character of the occupation or nature of the business of the owner or operator of one kind of such machines, — is the same as that of the owner or operator of each and all other kinds of machines enumerated. To state as a fact that a vender of candy, cigarettes, handkerchiefs and sandwiches is engaged in the same occupation or nature of business as the vender of sanitary drinking cups,— and that the comfort, health and convenience of the public are served in the same way and to the same degree and extent by each and all of said vending, and that the incomes are the same resulting from the operation of all such vending, — is to state conclusions which would not be tolerated as a statement of fact in any kind of court proceeding, and especially in any kind of criminal court proceeding. As said by our Supreme Court in Texas Co. v. Stephens, 103 S. W., 488 : “The difficulties in the way of sustaining the plaintiff’s contention that this is not a permissible discrimination are twofold. In the first place it is not made to appear, and we do not know judicially, that there are in the State any of the other companies or persons transporting the other things mentioned who do not also transport oil. In other words, it is not shown that there is in fact any discrimination between plaintiff and others. In the second place, there is the question of classification, to which we have before alluded. The fact that all persons, etc., owning or controlling pipe lines are included in the first part of the *378 section and are taxed as a class does not, as plaintiff’s counsel seem to argue, preclude further classification, and the application of differing rules among them. That is what is done, in effect, by the provision in question when it makes a special rule applicable only to those transporting oil, and the contention, if all the necessary facts were shown, would come back to the question as to whether or not such classification is based upon some real difference between the businesses or is arbitrary and capricious merely. We cannot say, as the cause is presented to us, that the business of piping oil partly for the public and partly for the owner of the line does not differ so substantially from the businesses of so transporting the other things as to furnish reason for the application of different rules to them.” Appellant insists in his motion that agreements as to facts in civil cases may be and have been made by the Attorney General of Texas, and he cites State v. Pioneer Oil & Refining Co., 292 S. W., 869 . Very true, and we have in article 2177, Rev. Civ. Stats., 1925, direct authority for such action in civil cases, —but we have no such statute applicable in criminal cases, the general requirement there being, especially in felony cases, that the testimony must be heard in open court and given under oath. A man’s liberty is at stake in criminal cases, and he may be incarcerated in jail or the penitentiary as a result of his trial for any criminal offense, if it be so decreed, or if he have not money with which to pay a pecuniary fine fixed as punishment. This court is unwilling to try out criminal issues dependent on facts without more showing as to such facts than here appears, or to solemnly determine the constitutionality of acts of the Legislature involving an exercise of their right to enact laws, — upon no greater showing than appears in this record. We see no reason or need for discussing the right and power of the Legislature to draw distinctions between drinking cup vending machines and the amusement vending machines or service vending machines referred to in other parts of the statute. Being unable to agree with appellant’s contentions, his motion for rehearing will be overruled. Overruled. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4899277. Public record. Not legal advice.