(dissenting).
This is an appeal from a conviction for engaging in a business of operating a coin operated music machine without a license. Punishment was assessed by the court at a $500 fine.
Appellant was convicted of causing a coin operated machine (jukebox) to be placed in Howard’s Drive Inn in Houston under an agreement by which he was to receive fifty percent of the gross receipts of the machine as compensation. It was established that neither appellant nor his company, the Taylor Sales Company, had a valid general business or import license issued by the Texas Vending Commission (now the Texas Amusement Machine Commission).
Appellant challenges the constitutionality of Article 13.17, Title 122A-Taxa-tion-General, V.A.T.C.S., under which he was convicted. Section 16(1) of the statute reads as follows:
“The annual license fee for either an import or a general business license shall be based on the number of music and the number of skill and pleasure, coin-operated machines in which each licensee shall have any interest as set forth in Section 8 of this article; and said annual fee shall be Ten Dollars ($10.00) for each such coin-operated machine, but in no event shall such fee be less than Fifty Dollars ($50.00) nor more that Three Thousand Dollars ($3,000.00). This fee shall be in addition to the tax levied by Article 13.02.”
Appellant contends that the fee imposed under this Article is, in fact, an occupation tax which violates the requirements of Article 8, Section 2 of the Texas Constitution *553which requires that “all occupational taxes shall be equal and uniform upon the same class of subjects.” In the alternative, he contends that such fee, if a license fee, violates the equal rights and privileges provisions of Article 1, Section 3 of the Constitution.
The distinction between regulatory and tax statutes is stated in 36 Tex.Jur.2d, Licenses, Section 29, page 620:
“The principle of distinction between .regulatory and tax statutes is grounded on raising of revenues. Accordingly, when the primary purpose of a statute prescribing fees is the raising of revenues, the fees are in fact occupation taxes, regardless of how designated. On the other hand, if the primary purpose is regulation, the fees levied are license fees and not taxes.”
In Hurt v. Cooper, 130 Tex. 433, 110 S. W.2d 896 (1937). cert, granted, 113 S.W.2d 929 (Tex.Civ.App. Dallas, 1938), no writ, the Supreme Court of Texas held certain fees termed “license fees” levied under the Chain Store Tax Act to be primarily occupation taxes. Among the factors considered by the Court in arriving at its decision were the following: (1) that the act imposed two separate levies, (2) that the act itself declared that the State was badly in need of revenue, and (3) that the amounts levied appeared to be far in excess of regulatory needs.
The challenged provision of the statute presently before us bears little resemblance to that of the Chain Store Tax Act. The rate to be applied to determine the license fee is a uniform $10 per machine, although both minimum and maximum fees are provided for. Section 16(1) specifically provides that the fee “shall be in addition to the tax levied by Article 13.02,” which itself provides for “an annual occupation tax of $15.00.” Section 1 declares the purpose of this to be as follows:
“ . . . to provide comprehensive regulation of music and skill or pleasure coin-operated machines and businesses dealing in these machines, and to prevent persons in these businesses from having certain concurrent financial interests in, or unauthorized financial dealings with, certain alcoholic beverage businesses.”
Finally, Thompson v. Calvert, 489 S.W. 2d 95 (Tex.Sup.Ct., 1972), traced the history of the challenged statute, noting:
“It is shown in the record that in 1969 the Legislature, in response to a trend of increasing violence and other illegal activity which centered around taverns and night clubs, created a special committee to study the problem. That committee determined that some of those engaged in the coin-operated machine business had gained a great deal of control over and financial interest in certain alcoholic beverage businesses. Art. 13.17 was then passed. .
The record is devoid of evidence upon which this Court may conclude that the amounts to be levied under this Article exceed regulatory needs.
It appears that the fees imposed under Article 13.17, supra, are to be license fees imposed for the purpose of meeting regulatory needs and not occupational taxes.
Is the graduated fee system created in Section 16 of the Article arbitrary and unreasonable?
In Dodgen v. Depuglio, 146 Tex. 538, 209 S.W.2d 588 (1948), it is written:
“Where a state may validly require a license, it may make such classifications, subclassifications or exemptions as deemed necessary, so long as such classifications are not unreasonable and arbitrary. ... ‘A classification is never unreasonable or arbitrary in its inclusion or exclusion features so long as there is some basis for the differentiation between classes or subject matters included as compared to those excluded from its operation, provided the differentiation bears a reasonable relation to the pur*554poses to be accomplished by the act. . ’ The mere fact that discrimination is made does not necessarily vitiate the classification, and unless there is no substantial basis for the discrimination, there is no warrant for judicial interference. . . . All that is required is that the enactment shall be applicable to all persons alike under the same circumstances. . . . One who assails the classification * * * must carry the burden of showing that it does not rest upon any reasonable basis, but is essentially arbitrary.”
Appellant argues that a mere reading of the license fee classification established under Section 16 discloses that the minimum and maximum fees are arbitrary and unreasonable. Under that section, the owner of one machine pays the same fee as the owner of five; the owner of three hundred machines the same fee as the owner of six hundred. He urges that such minimum and maximum fees bear no reasonable relation to the actual cost of regulation, and that, therefore, the classifications are arbitrary and unreasonable on their face.
In the absence of evidence supporting appellant’s position, we should not merely assume that the license fee classifications are arbitrary. It is presumed that the Legislature acted within the scope of its powers, and, if there could be a state of facts justifying the legislative action, it is presumed that such a state of facts exists. 12 Tex.Jur.2d, Constitutional Law, Section 42, pages 385-386.
The Legislature no doubt had evidence before it on the subject. We do not. In the absence of evidence regarding the requirements of regulatory efforts in this field, to strike down such a provision of a regulatory act would constitute substituting the judgment and policy considerations of this Court for those of the Legislature.
The appellant, in my opinion, has not carried his burden of overcoming the presumption of statutory validity by showing that the fee classification established by the Legislature in Section 16 of Article 13.17 is essentially arbitrary and unreasonable.
The judgment should be affirmed.
MORRISON, J., joins in this dissent.