dissenting.
I do not concur in the conclusion reached by the court in this case, for the reasons below given:
Section 198 of chapter 45, Acts of 1928, designated as the Tax Code of Virginia, as amended by Acts 1930, c. 401, p. 849, at p. 857, imposes a license tax upon all slot machines operated on the coin-in-the-slot principle, and contains this proviso:
“Provided, however, that nothing contained in this section *1024shall be construed as permitting any such person (i. <?., the licensee of a slot machine) to keep, maintain, exhibit or operate any slot machine or other device, in the operation of which cigarettes are disposed of, or in which the element of chance enters.”
This proviso, it is held by the court, makes the vending of cigarettes through a slot machine, under any and all circumstances, a crime. Were I of the opinion that this is true, I would be of opinion that the proviso was violative of section 52 of the Constitution.
It sometimes helps to clarify our thinking to consider extreme ■ cases. Suppose, then, that the title of the act here in question and section 198 thereof read as follows, and that subdivision “b” of the section had been inserted in the statute law of Virginia for the first time in this act:
“An act to revise, simplify, arrange and consolidate into one act the general tax and revenue statutes of the Commonwealth of Virginia, which act shall constitute, and be designated and cited as the Tax Code of Virginia.”
“Whereas, it is expedient to revise and simplify the general tax and revenue statutes of the Commonwealth, arrange them in appropriate chapters and sections, and consolidate them into a Code; therefore, be it enacted by the General Assembly of Virginia, in the manner following: * * *
“Section 198. Slot Machines.—(a) Any person having a slot machine of any description, operated on the coin-in-the-slot principle, used for gain, except as a pay telephone, shall pay for every such slot machine a State license tax of $5.00 per year, except such as are used solely for the sale of agricultural products or cigars, on which shall be levied a State license tax of $3.00 per year.
“(b) Any person who keeps or operates a slot machine in the operation of which ciga'rettes are disposed of or in which the element of chance enters, shall be guilty of a felony and shall be subject to a fine of not exceeding $10,000.00 and for *1025confinement in the penitentiary for not less than one nor more • than five years.
“(c) Any person having any such slot machine and failing to procure a State license therefor, shall be subject to a fine of not less than $20.00 nor more than $50.00 for each offense, and such machine shall be forfeited to the Commonwealth.”
My understanding of the opinion of the court is that it holds that section 198 of the Tax Code, in effect, does just what is done in the supposed section above stated, except that the provision with reference to the sale of cigarettes is taken from the prior revenue bill (section 139), and that the offense created is made a misdemeanor, and not a felony, and made subject to a lesser penalty.
I cannot conceive that a member of the General Assembly or any other person reading the title of the supposed act would, by any stretch of his imagination, be put upon guard that this act did, or might, contain any such independent provision, making it a felony to vend cigarettes through a slot machine, nor can I see that such a provision is in any way pertinent, germane, congruous with or has a natural connection with the laws relating to* the raising or revenue or the assessment and levy of taxes.
I think it is against just such abuses that section 52 of the Constitution is aimed, and I know of no type of acts to which section 52 of the Constitution is more properly applicable than to general or special revenue acts. Such acts should not create crimes which are entirely independent of any revenue producing provision.
If the holding of the court in this case be correct, I can see no reason why the act here in question, under the title and guise of a revenue measure, might not have contained a provision making it a crime to smoke a cigarette or chew gum while riding in an automobile along the highway, if it therein imposed a license tax for the use of an automobile, or have enacted therein a provision for the integration and incorporation *1026of the bar of the State or a code of ethics for the legal profession, because a license tax is therein imposed for the practice of law. Such a holding seems to me to throw both general and special revenue acts wide open as convenient vehicles for the enactment, under the concealment of their titles, of “joker” legislation, just what section 52 of the Constitution was intended to prevent.
The act here under immediate consideration is chapter 401 of the Acts of 1930, the title of which reads as follows: “An act to amend the Tax Code of Virginia by adding a new subsection to section 25 thereof * * *; also to amend and re-enact sections 39, * * * 198 * * * and 415 of the Tax Code of Virginia, which sections are in chapters 6, * * * 14, * * * and 26 of the Tax Code of Virginia ón the subjects of income, * * * licenses, * * * and erroneous assessments; and also to repeal section 169, * * *, section 179 * * *, and section 181-a of the Tax Code of Virginia * *
The same proviso here in question was contained in section 198 of chapter 45, Acts 1928, the title of which is as follows: “An act to revise, simplify, arrange and consolidate into one act the general tax and revenue statutes of the Commonwealth, which act shall constitute and be designated and cited as the Tax Code of Virginia.” (Acts 1928, p. 35.)
Section 198 of chapter 45, Acts 1928, was taken from section 139 of the revenue bill of 1903, as amended and reenacted, which contained practically this same proviso as to the sale of cigarettes. The title of the revenue bill of 1903 and of the several acts amending section 139 thereof was as follows:
“An act to raise revenue for support of the government and public free schools, and to pay the interest on the public debt, and to provide a special tax for pensions as authorized by section 189 of the Constitution.” (Acts 1902-3-4, Ex. Sess., chap. 148, p. 155, approved April 16, 1903.)
“An act to amend and re-enact section 139 of the act to raise revenue (etc.) * * *, which was chapter 148 of the Acts of *1027Assembly 1902-1903-1904, as amended and re-enacted by the act which is chapter 20 of the Acts of Assembly of 1904, be amended and re-enacted so as to read as follows(Acts 1906, c. 292, p. 512.)
“An act to amend and re-enact section 139 of an act entitled an act to raise revenue (etc.) * * * approved April 16, 1903.” (Acts 1912, c. 194, p. 462.)
“An act to amend and re-enact section 139 of an act entitled an act to raise revenue (etc.) * * * approved April 16, 1903, as amended and re-enacted by an act approved March 13, 1912.” (Acts 1914, c. 231, p. 411.)
“An act to amend and re-enact section 139 of an act entitled an act to raise revenue (etc.), * * * approved April 16, 1903, as amended and re-enacted by an act approved March 13, 1912, as amended and re-enacted by an act approved March 24, 1914.” (Acts 1915, Ex. Sess., c. 84, p.. 117.)
In my judgment, neither the title of the revenue bill of 1903, nor of any of the acts amending section 139 thereof, is broad enough to cover the enactment of what amounts to an independent provision making, it a crime to sell cigarettes through a slot machine. If this be true, then' when chapter 45 of the Acts of 1928, which is cited as the Tax Code of Virginia, was enacted, there, was no valid provision in any statute providing for a license tax on slot machines which also made it a crime to sell cigarettes, and the insertion of such a provision in section 198 of the Tax Code was in all respects tantamount to the enactment of a new provision, and its constitutionality cannot be saved upon the theory that it is a mere codification of a valid existing provision, as perhaps may be true as to some other provisions of the Tax Code.
But it is intimated in the opinion of the court, that the constitutionality of this proviso, construed as an independent provision, creating the crime of selling cigarettes through a slot machine, may be sustained upon the theory that section 52 of the Constitution does not apply to the adoption of a general *1028code revision. I think the proviso, so construed, cannot be sustained on that principle. The title of an act entitled an act to revise and codify the statute laws of the State is broad enough to embrace a codification of any and all statute laws of the State and the enactment of any new legislation the General Assembly may deem proper. So, also, the title of an act entitled “An act to revise and codify the revenue statutes of the State” is broad enough to- include any provision relating to the raising of revenue, but is not, I think, broad enough to include enactments creating crimes which have no' relation to the raising of revenue, but are created solely for what the General Assembly deems the protection of health, safety, morals, or general welfare of the community.
But, as intimated above, I am of opinion that the proviso contained in section 198 of the Tax Code, when correctly construed, does not of itself constitute the vending of cigarettes through a slot machine a crime.
In the absence of a statute prohibiting it, it is lawful to sell any article through a slot machine that it is lawful fe> sell in any other manner.
Section 4685 is the criminal statute providing what may not be sold or disposed of through a slot machine. Section 198 of the Tax Code is a revenue measure providing for the payment of a license tax for the operation of a slot machine.
Prior to its repeal (Acts 1928, p. 239) and re-enactment (Acts 1928, p. 1124), and when what is now section 198 of the Tax Code was originally enacted, section 4685 made it a misdemeanor to operate any slot machine in the operation of which the element of chance enters, and, by inference at least, prohibited the sale of cigarettes through a slot machine and made it a misdemeanor to so dispose of cigarettes. But when it was re-enacted (Acts 1928, p. 1124), all reference to the prohibition of the sale of cigarettes through a slot machine was omitted, and section 4685 does not now, even by inference, prohibit the sale of cigarettes through a slot machine.
*1029It seems to me plain that the proviso put in the revenue act (section 139 of the Tax Bill of 1903) as amended by Acts 1906, page 512, was then put in, and has since been retained and carried into section 198 of the Tax Code, out of an abundance of caution in order to make it plain that this revenue provision for the licensing of slot machines was not intended to operate as a repeal of any criminal statute which prohibited the operation of a slot machine in which the element of chance enters, or the use of a slot machine to sell' cigarettes. Provisos are often used out of excessive caution for the purpose of preventing a possible misinterpretation of an act as including or accomplishing that which was not intended by the act. Baggaley v. Pittsburg, etc., Iron Co., 33 C. C. A. 202, 90 F. 636; McHale v. Board of Commrs., 180 Ind. 390, 103 N. E. 321; State v. Home Brewing Co., 182 Ind. 75, 105 N. E. 909.
I think the proviso means nothing contained in this section shall of itself be construed to permit the sale of cigarettes through a slot machine, if the sale thereof through a slot machine be prohibited by any other statute. The proviso is certainly susceptible of such a construction, and this is its meaning when interpreted literally, without the aid of inference or construction. Bearing in mind the rule that penal statutes are to be strictly construed, and that crimes are not to be created by inference, implication, or construction, I am of opinion that the proviso in section 198 should be so' interpreted, and not be construed as creating it a crime to sell cigarettes through a slot machine independently of any criminal statute so providing.
“Such statutes (i. e., penal statutes) are to reach no further in meaning than their words ; no- person is to be made subject to them by implication, and all doubts concerning their interpretation are to preponderate in favor of the accused.” Bish. on Stat. Crimes, section 194, p. 129.
“There can be no constructive offenses, and before a man can be punished, his. case must be plainly and unmistakably *1030within the statute.” Chief Justice Fuller in U. S. v. Lacher, 134 U. S. 624, 10 S. Ct. 625, 626, 33 L. Ed. 1080.
“A penal statute cannot be extended by implication or construction. It cannot be made to embrace cases not within the letter, though within the reason and policy of the law. To constitute the offense the act must be both within the letter and spirit of the statute defining it. Those who contend that a penalty is imposed must show that the words of the act distinctly cover the case. No conviction can be had if the words are merely equally capable of a construction that would, and one that would not, inflict the penalty. If a penal statute be so ambiguous as to leave reasonable doubt of its meaning, it is the duty of the court to refuse to impose the penalty.” McKay v. Commonwealth, 137 Va. at p. 830, 120 S. E. 138, 139; Faulkner v. Town of South Boston, 141 Va. 517, 127 S. E. 380; Jordan v. Town of South Boston, 138 Va. 838, 122 S. E. 265.
“It is an ancient maxim of the law that all such statutes (i. e., criminal statutes) must be construed strictly against the State and favorably to the liberty of the citizen. The maxim is founded on the tenderness of the law for the rights of individuals, and on the plain principle that the power of punishment is vested in the legislature and not in the judicial department. No man incurs a penalty unless the act which subjects him to it is clearly within the spirit and the letter of the statute which imposes such penalty. There can be no constructive of1 fenses, and before a man can be punished his case must be plainly and unmistakably within the statute. If these principles are violated, the fate of the accused is determined by the arbitrary discretion of the judges, and. not by the express authority of the law.” Sutherland v. Commonwealth, 109 Va. 834, 65 S. E. 15, 23 L. R. A. (N. S.) 172, 132 Am. St. Rep. 949; Withers v. Commonwealth, 109 Va. 837, 65 S. E. 16.
In Kloss v. Commonwealth, 103 Va. 864, 49 S. E. 655, 656, Buchanan, J., says: “The rule is universal, except where other*1031wise provided, by statute, that penal statutes are to be construed strictly, and are never to be extended by implication. This rule applies with full force to- a case like the present, for while the statute on which the prosecution is based is a revenue law, yet in so far as it imposes penalties for a violation of its provisions, it is a penal statute, and must be construed accordingly.”
In discussing the rule of construction applicable to revenue statutes, Endlich on the Interpretation of Statutes, section 346, p. 481, says: “The proper rule probably is, as pointed out by an eminent writer (Bishop), that, in the accomplishment of their primary object, the mere collection of duties, proportionate contributions to the public burden, these enactments are not to be construed with the rigid strictness applicable to- penal laws; but that,.so far as they create crimes, they require the strict construction of such laws.”
As I understand this case, Macke had paid the necessary merchant’s license and all other licenses required for the sale of cigarettes at the place at which he was vending cigarettes through this slot machine, and he had also paid the license required by section 198 of the Tax Code for the operation of this slot machine. This being true, I think there has been no violation of section 136 of the Tax Code, which so- far as is here applicable, reads as follows:
“If any person, firm or corporation shall, in violation of law, commence or prosecute any business employment or profession without a license, such person, firm or corporation shall be guilty of a misdemeanor,” and be punished as therein provided.
I think the judgment of the trial court should be reversed and the cause remanded with instructions to the court to dismiss the warrant against Macke.