Automatic Voting Machine Corporation v. County of Maricopa

• Decision Date: 15 July 1937
• Docket Number: Civil 3847
• Citation: 70 P.2d 447,50 Ariz. 211
• Parties: AUTOMATIC VOTING MACHINE CORPORATION, Appellant, v. COUNTY OF MARICOPA, STATE OF ARIZONA, Appellee
• Court: Arizona Supreme Court

70 P.2d 447

50 Ariz. 211

AUTOMATIC VOTING MACHINE CORPORATION, Appellant, v. COUNTY OF MARICOPA, STATE OF ARIZONA, Appellee

Civil No. 3847

Supreme Court of Arizona

July 15, 1937

APPEAL from a judgment of the Superior Court of the County of Maricopa. G. A. Rodgers, Judge. Judgment affirmed.

Messrs Kibbey, Bennett, gust, Smith & Rosenfeld, for Appellant.

Mr Harry Johnson, County Attorney, and Mr. Mark Wilmer, his Deputy, for Appellee.

OPINION

LOCKWOOD, J.

This is an appeal by Automatic Voting Machine Corporation hereinafter called plaintiff, from a judgment in favor of County of Maricopa, a municipal corporation of the State of Arizona, hereinafter called defendant. The defendant demurred to the complaint on the ground that it did not state a cause of action, and the demurrer being sustained by the court, and plaintiff refusing to plead further, judgment was rendered in favor of defendant. The question before us then is whether the complaint states a cause of action. Its allegations, which we must assume for the purpose of the appeal state the facts, may be summarized as follows:

On or prior to the 29th day of October, 1934, plaintiff was the owner of certain voting machines which were devised for the purpose of providing a better method of voting at elections than the common one of paper ballots. On that date the parties hereto entered into a certain agreement, in writing, in regard to forty-five of such machines. The portions of such agreement which it is necessary for us to consider on the appeal read as follows:

"THIS AGREEMENT,...

"1 -- Witnesseth: That for and in consideration of the sum of Eleven Thousand Sixty-eight and 20/100 Dollars ($11,068.20) paid in County Warrants, by the County, receipt of which is hereby acknowledged, the Company hereby rents to the County forty-five (45) voting machines, hereinafter described, for use in the Primary and General elections of the year 1934....

"7 -- The Company agrees that the County, at its option, shall have the right to rent said forty-five (45) voting machines for the Primary and General Elections of 1936 for the sum of Eleven Thousand Sixty-eight and 20/100 Dollars ($11,068.20). Said option to be exercised between the first day of July, 1935, and the 1st day of August, 1935, and to be in writing and the rent thereunder to be paid on or before June 30, 1936. Said rental contract to give the County the option of renting said machines for the sum of Eleven Thousand Sixty-eight and 20/100 Dollars ($11,068.20) for each next succeeding Primary and General Election thereafter.

"8 -- The Company agrees that the County, at its option, shall have the right to purchase said 45 voting machines at any time hereafter for the sum of $1118.00 per machine plus interest from date at 6% per annum, and that all payments that shall have been paid for rent under this or subsequent contracts for rent shall be applied on the purchase price.

"9 -- The County agrees that, while said 45 rented and 16 loaned machines are in its possession, it will be responsible for their safety and good care, and, by suitable storage and insurance, protect them from loss and injury.

"10 -- The County agrees that, if and when it shall cease to exercise its right to rent or purchase said 45 machines as herein provided, it will upon request of the company, ship them to the Company at Jamestown, New York in good condition except for ordinary wear, freight charges prepaid."

At the time this agreement was made, the parties did not contemplate merely a temporary use of the voting machines at the election of 1934 and 1936, but it was the intention and expectation of both parties that they would continue to be used at all succeeding primary and general elections until the payments denominated as rental in the agreement, together with such other funds as the defendant might have available for such purposes, would be sufficient to pay the balance of the purchase price fixed in the agreement, whereupon the title thereto would pass to the defendant.

These machines were received by the defendant and used during the primary and general elections of 1934. Thereafter, and on the 16th day of July, 1935, a new agreement was made between the parties, substantially similar in substance to the one just quoted, but providing also that the sixteen voting machines which had been loaned the defendant might be purchased in the same manner, and that the installments of $11,068.20, which were to be paid for the use of the machines at each biennial and primary and general election, were changed so that the payment to be made should be whatever amount was saved the county at the election by the use of such machines, the other conditions being the same as the original contract.

In the spring of 1935, the county assessor of Maricopa County assessed the sixty-one voting machines covered by the agreements as being the property of the plaintiff, and the defendant county thereupon levied a tax on the machines based upon such assessment in the sum of $2,264.72, and demanded payment of the same from plaintiff, threatening that if the levy was not paid the machines would be seized and sold for the taxes. The plaintiff, in order to prevent the seizure, was compelled to pay, and did pay, the whole of said sum to the assessor, although it is protested that in so far as the forty-five machines covered by the first agreement were concerned, it was the payment of an illegal and void tax, for the reason that such machines were, so far as taxation was concerned, the property of the county and, therefore, not subject to taxation at all. Thereafter this suit was brought for the purpose of recovering the pro rata taxes paid by plaintiff aforesaid on the forty-five machines bought on the first contract, plaintiff admitting that the additional sixteen machines were its property at the time of the assessment, and it was liable for taxes thereon.

The vital point in the case is whether or not the forty-five voting machines in question were the property of the defendant. If so, they were exempt from all taxes under article 9, section 2, of the Constitution of Arizona as being county property.

It is the theory of plaintiff that the agreement above referred to is a conditional sales contract, and that property covered by contracts of this nature is, so far as taxation is concerned, the property of the buyer and not the seller, and that as between the parties the taxes must be paid by the buyer. In support thereof it cites many authorities and, indeed, we think that if the transaction be the ordinary conditional sale, the decided weight of authority is to that effect. As was said in the case of National Bank v. Danforth, 80 Ga. 55, 7 S.E. 546, 550, dealing with a very similar question affecting real estate:

"With reference to the public, we hold that the assessment, in case of an outstanding bond for titles, where the holder of it is in possession of the premises, may be made either against such holder or against the maker of the bond, the person in whom the legal title rests for the time being; and a sale by the public authorities founded on an assessment against either would pass the title, no doubt, as against the other if it were made for the taxes of that property alone; because it is no less the duty of the one than the other, relatively to the public, to pay taxes, or to see that they are paid. But as between themselves it is very clear that the person who is in possession, enjoying the property itself or its rents and issues, ought to be charged, and is chargeable, with the taxes. If the vendor retains possession, and gets his interest and income too, of course he ought to pay taxes. If the vendee takes possession, and receives the income from the property, he ought pay the taxes, the vendor being charged with taxes on the unpaid purchase money, and in this case the whole of it is...