The pleadings and statute involved are stated in the opinion prepared by Mr. Justice BUFORD. *Page 743
Chapter 17257, Acts of 1935, provides for licensing and regulating as well as for taxing defined machines commonly called "slot machines" in the several counties of this State; and the provision of the statute that after the polling of a stated vote in any county at a general election, no such machines shall be licensed to operate in such county, is not an unlawful delegation of legislative power to the electors of a county, since the Act itself, and not the vote, forbids the licensing of the machines when the required vote is cast.
The operation of the provision forbidding the defined machines to be licensed to operate in counties where a required vote has been duly cast, does not cause a lack of uniformity in the taxing provision of the Act, since the Act does not make the tax inapplicable in any county where the machines may lawfully be licensed to operate.
The subject of the tax provision of the statute is licensed machines. Granting the licenses is to be discontinued in any county upon a stated contingency. If there are no machines licensed in a county because the statute forbids it, the tax provision of the statute is not thereby repealed or suspended in the county; but there is then no subject in the county upon which the tax provision may operate. Loss of revenue or the discrimination involved in forbidding the machines to be licensed in some counties, results from the statutory exercise of the police power for the general welfare, and does not violate the Constitution.
The authorized vote of the electors of a county to express the public will, upon which the statute forbids the machines to be licensed in the county, has substantial relation to the provisions of the Act and merely determines a contingency upon which the statute itself forbids further licensing of the machines. The statute forbids the machines to be licensed in any county upon the event of an authorized stated *Page 744 vote of the electors of the county; and it is not made to appear that such provision so affects the taxing provision of the statute as to violate any provision of the Constitution.
The motion to quash the alternative writ of mandamus is denied, and peremptory writ will issue unless return consistent with this opinion is filed within three days.
It is so ordered.
TERRELL, BROWN and DAVIS, J.J., concur.
ELLIS, P.J., and BUFORD, J., dissent.