Betts v. Lightning Delivery Company

• Decision Date: 13 June 1933
• Docket Number: Civil 3270
• Parties: AMOS A. BETTS, LOREN VAUGHN and CHARLES R. HOWE, the Successor in Office of W. D. CLAYPOOL, as Members of and Constituting the Corporation Commission of the State of Arizona, E. M. WHITWORTH, as Superintendent of the Motor Vehicle Division of the Arizona Highway Department, and K. BERRY PETERSON, Attorney General of the State of Arizona, Appellants, v. LIGHTNING DELIVERY COMPANY, a Corporation, ARIZONA STORAGE AND DISTRIBUTING COMPANY, a Corporation, CHAMBERS TRANSFER AND STORAGE COMPANY, a Corporation, and All Other Persons and Corporations Similarly Situated, Appellees
• Court: Arizona Supreme Court

22 P.2d 827

42 Ariz. 105

AMOS A. BETTS, LOREN VAUGHN and CHARLES R. HOWE, the Successor in Office of W. D. CLAYPOOL, as Members of and Constituting the Corporation Commission of the State of Arizona, E. M. WHITWORTH, as Superintendent of the Motor Vehicle Division of the Arizona Highway Department, and K. BERRY PETERSON, Attorney General of the State of Arizona, Appellants, v. LIGHTNING DELIVERY COMPANY, a Corporation, ARIZONA STORAGE AND DISTRIBUTING COMPANY, a Corporation, CHAMBERS TRANSFER AND STORAGE COMPANY, a Corporation, and All Other Persons and Corporations Similarly Situated, Appellees

Civil No. 3270

Supreme Court of Arizona

June 13, 1933

APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Reversed and remanded, with directions.

Mr. K Berry Peterson, Attorney General and Mr. Riney B. Salmon and Mr. Arthur T. La Prade, Assistant Attorneys General, for Appellants.

Messrs Sloan, McKesson & Scott, for Appellees.

OPINION

ROSS, C. J.

This is the second time this case has come here. The question involved in this appeal is the liability of the Lightning Delivery Company, Arizona Storage and Distributing Company and Chambers Transfer and Storage Company (to which we shall refer as the companies) to pay a license tax of 2 1/2 per cent. of their gross receipts from their operations in this state as common carriers of freight. The companies contending that they were not for various reasons liable for the tax, brought suit against the members of the corporation commission, the superintendent of motor vehicles, and the Attorney General to enjoin them from proceeding to collect the tax. The defendants in addition to defenses, filed a cross-complaint praying judgment against the companies for past-due license tax.

In the former appeal (Claypool v. Lightning Delivery Co., 38 Ariz. 262, 299 P. 126) the holding was with the defendants. All of the objections of the companies to the license tax were denied and the case was reversed and remanded "with instructions . . . to proceed to a hearing on defendants' cross-complaints in accordance with the principles laid down in this opinion."

Upon the case reaching the lower court the defendants filed an amended cross-complaint in which it is alleged that the companies had failed to pay their license tax or to file verified monthly statements showing the gross receipts of their business over the period from September, 1927, to May, 1931, both inclusive, although they had been furnished with proper and suitable forms for such purpose. It is alleged that because of the failure of the companies to furnish to the superintendent of motor vehicles monthly statements of their gross receipts as common carriers, the superintendent informed himself as to the amount of license tax due the state of Arizona on account of their operations for each of the calendar months as aforesaid, and from such information did fix and determine the amount of the license tax due the state, itemizing it by months. It is also alleged that the cross-complaint was filed by the Attorney General upon the request of the superintendent of motor vehicles.

The companies demurred to the cross-complaint on the ground that the superintendent of motor vehicles had arbitrarily fixed and determined the amount of license tax due without any notice to the companies or opportunity for them to have a hearing thereon, in contravention of the equal protection and due process clauses of the Fourteenth Amendment to the Constitution of the United States. This demurrer was sustained, and, the cross-complainants electing to stand on the cross-complaint, judgment was rendered against them. They have appealed.

The particular statutes providing for the license tax, and the manner and time for its payment, and upon default the procedure to enforce such payment, are sections 1680, 1681, and 1682 of the Revised Code of 1928, reading as follows:

"§ 1680. License tax on operators of commercial vehicles determining gross receipts.

"Every person owning, operating or managing any motor vehicle used in transportation of persons or property as a common carrier for compensation over any public highway, other than busses used exclusively for the transportation of pupils to or from any public school when owned or operated by the school or school district, shall in addition to all other taxes and fees, pay the following license tax: When engaged in transportation of persons, or persons and baggage, or persons and express, or persons, baggage and express, where the same is transported on the same motor vehicle, shall monthly pay a license tax equal to two per cent. of the gross receipts from the operation of such companies within this state; when operating motor vehicles engaged in the business of transporting property shall monthly pay a license tax equal to two and one-half per cent. of the gross receipts from operations of such company within this state; when operating partly within and partly without this state the gross receipts within this state shall be deemed to be all receipts of business beginning and ending within this state, and a proportion, based upon the proportion of the mileage within this state to the entire mileage over which business is done, of receipts on all business passing through, into or out of this state.

"§ 1681. Corporations commission to furnish names of permit holders; monthly statement and tax payment.

"The vehicle superintendent shall enforce the provisions of this article. The corporation commission shall furnish to the superintendent the name of every person to whom a permit to operate a motor vehicle in the business of transporting persons or property for compensation over any public highway is issued, together with such information as the superintendent may require.

"The taxes prescribed in the preceding section shall be paid to the superintendent on or before the fifteenth day of each month for the last past calendar month, and a sworn statement filed therewith on forms furnished by him showing the gross receipts of such person for each month, on business beginning and ending in this state, the gross receipts on all business passing through, into or out of this state, the number of motor vehicles operated in this state, the total mileage operated within this state, and such other information as may be required by the superintendent.

"§ 1682. Failure to pay tax and file statement; penalty; lien for; collection.

"If any person fails to pay such license tax, or file the statement herein provided within five days from the day such taxes become due, his permit shall be revoked by the corporation commission, and a penalty of twenty-five per cent of such tax shall be imposed. In such case the superintendent shall inform himself as best he may and fix the amount of such license tax due the state from such persons for such calendar month, and such persons shall be estopped from questioning the amount thereof. The license tax and penalty shall, from the date they are due, constitute a lien upon all personal property in this state belonging to such person, and the attorney general shall upon the request of the superintendent, prosecute an action to...