Scott v. Hossley

Cook, J.,

delivered the opinion of the court.

The appellant, the sheriff and tax collector of Warren county, instituted suit in the circuit court against the appellee to recover a privilege tax of two hundred fifty dollars on a slot machine, for the year beginning June, 1924, and also one hundred per cent damages, making a total demand of five hundred dollars. The appellee demurred to the declaration on the ground, among others, that it stated no cause of action, and the appellant has appealed from an order sustaining this demurrer and dismissing the suit.

There are several acts of the legislature -which shed light upon the question here involved.

Section 3786 of the Code of 1906 imposed a privilege tax of fifty dollars for each county, “on each cane rack, knife rack, artful dodger, ring board, or similar contrivance, by whatever name called, kept or operated for public or private use.” It will bo noted that this section does not impose a tax upon “slot machines” or “slot vending machines,” but chapter 110, Laws of 1914, imposed a small privilege tax on automatic weighing machines and g;um slot machines, automatic musical instruments, stamp machines, and all other vending machines.

The legislature of 1920', by section 7 of chapter 104, Laws of 1920, amended section 3786, Code of 1906, section 6486, Hemingway’s Code, as follows:

' ‘ Sec. 7. That section 3786 of the Mississippi Code of 1906 be and the same is hereby amended to read as follows:

“3786. Cane Backs.—On each cane rack, knife rack, artful dodger, ring board, or similar contrivance, punch board, or slot machine of any kind, description, or make, whether or not gum, postcards, or other articles are given with each or any number of plays, for each county . . . two hundred fifty dollars. And this shall be in addition to any and all other privilege taxes.”

By section 64 of the said chapter 104, Laws of 1924, chapter 110, Laws of 1914, which imposed a small privilege tax on vending machines, was amended so as to increase the tax on each kind of machine therein mentioned.

The legislature of 1922, by chapter 239 of the Laws of 1922; undertook to prohibit the use or operation of all kinds of slot machines; the said chapter reading as follows:

“Section 1. Be it enacted by the legislature of the state of Mississippi, that section 3786 of the Mississippi Code of 1906, be and the sáme is hereby repealed.

“Section 2. It shall be unlawful for any person or persons, firms, copartnerships or corporations, to operate any cane rack, knife rack, artful dodger, punch board, roll down, merchandise wheel, or slot machine, or similar devices. Any person or persons found guilty of a violation of this section shall be deemed guilty of a misdemeanor and fined any sum not exceeding five hundred dollars, or imprisonment for not exceeding three months.

“Section 3. That all laws and parts of laws in conflict with this act be and the same are hereby repealed and that this act take effect and be in force from and after its passage.”

Chapter 339, Laws of 1924, amended chapter 239, Laws of 1922, which prohibited the operation of all slot machines, by adding the proviso, “that this act shall not apply to automatic vending machines which indicate in advance what the purchaser is to receive on each operation of the machine,” while by chapter 120, Laws of 1924, section 64, chapter 104, Laws of 1920, was amended so as to again increase the privilegie tax on the vending machines therein mentioned and described.

From the foregoing’ outline of the various statutory enactments on the subject, it will be noted that, by section 7, chapter 104, Laws of 1920', the legislature amended section 3786, Ciode of 1906, so as to include in its provisions' “slot machines,” and so as to increase the privilege tax on the various machines and devices therein enumerated to two hundred fifty dollars per annum, but the section as amended was still section 3786 of the Code of 1906. This 1920 amendment of the Code section did not repeal the original section, but it simply enlarged and changed the section so that it should thereafter read as •therein set out. The Code section retained its identity as section 3786> and when, by section 1, chapter 239, Laws of 1922, it was expressly-provided “that section 3786 of the Mississippi Code of 1906, be and the same is hereby repealed,” this necessarily repealed the section as amended and as it then existed. Since the repeal of section 3786 as amended, there has been no law imposing a privilege tax of two hundred fifty dollars on slot machines and similar devices, and consequently this suit cannot he maintained. By the enactment of the said chapter 239, Laws of 1922, it w!as made unlawful for any person, firm, or corporation to operate any cane rack, knife rack, artful dodger, punch board, roll down, merchandise wheel, or slot machine or similar device, and while it has been held by this court that the legislature has the power to impose a tax upon a business made unlawful by another statute, the intention so to do will not be imputed to it unless the language of the statute clearly requires such a construction.

The judgment of the court below will be affirmed.

Affirmed.