Black & White Taxicab Co. v. Standard Oil Co.

• Citation: 25 Ariz. 381,218 P. 139
• Decision Date: 28 August 1923
• Docket Number: Civil 2207
• Parties: BLACK AND WHITE TAXICAB COMPANY, a Corporation, Appellant, v. STANDARD OIL COMPANY, a Corporation; JAMES H. KERBY, as Secretary of State of the State of Arizona, and STATE OF ARIZONA, at the relation of JOHN W. MURPHY, Attorney General of the State of Arizona, Appellees
• Court: Supreme Court of Arizona

218 P. 139

25 Ariz. 381

BLACK AND WHITE TAXICAB COMPANY, a Corporation, Appellant, v. STANDARD OIL COMPANY, a Corporation; JAMES H. KERBY, as Secretary of State of the State of Arizona, and STATE OF ARIZONA, at the relation of JOHN W. MURPHY, Attorney General of the State of Arizona, Appellees

Civil No. 2207

Supreme Court of Arizona

August 28, 1923

APPEAL from a judgment of the Superior Court of the County of Maricopa. Stephen H. Abbey, Judge. Affirmed.

Messrs Baker & Whitney, for Appellant.

Messrs Ellinwood & Ross and Mr. James S. Casey, for Appellee Standard Oil Co.

Messrs Barnum & Flanigan, for Appellee, Kerby.

Mr. John W. Murphy, Attorney General, Mr. A. R. Lynch and Mr. Earl Anderson, Assistant Attorneys General, and Mr. H. A. Elliott, Assistant Counsel, for Appellee, State of Arizona.

OPINION

ROSS, J.

This action was brought by the Black & White Taxicab Company against the Standard Oil Company and James H. Kerby, Secretary of State, to recover seventy cents which the plaintiff claims the Standard Oil Company overcharged it for gasoline. The complaint shows that the defendant Standard Oil Company is a dealer in gasoline and its products within Arizona; that it made such overcharge in pursuance of the terms of chapter 76, Session Laws of 1923, which require every dealer in gasoline to collect from the purchaser thereof three cents per gallon and at stated intervals pay the same to the defendant Secretary of State. It is alleged the three-cent tax was paid under protest. Recovery is sought upon the ground of the unconstitutionality of chapter 76; it being claimed it violates several provisions of the state Constitution. It is also claimed the Governor vetoed the provision of such chapter requiring dealers to collect three cents tax per gallon of purchasers of gasoline. After the suit was instituted, upon the petition of the Attorney General the State was permitted to intervene at his relation. The defendants and the intervenor filed general demurrers to the complaint which were sustained, and a judgment of dismissal entered. The effect of the judgment was to hold the law constitutional and the veto ineffective, and to impose upon the defendant oil company and all other dealers in gasoline the duty of collecting the three cents per gallon from purchasers of gasoline, and at stated periods remit such collections to the Secretary of State.

The taxicab company has appealed from the judgment. It is contended that chapter 76 offends section 13, part 2, article 4 of the Constitution, section 20, part 2, article 4, section 3, article 9, and section 9 of article 9.

As the questions raised have to do with the title of the act as well as the body thereof, we give here the title. It is as follows:

"An act to provide funds for the construction and completion of certain designated highway projects, within the state of Arizona, initiated or authorized, but not completed by the board of directors of state institutions and office of state engineer, prior to January 1, 1923; authorizing the refunding, for use on any specific or designated highway project, of funds paid by any political subdivision of the state of Arizona, to the state of Arizona for the use of the board of director of state institutions and of said office of state engineer of the state of Arizona, for the construction of such specific and designated highway projects and diverted, prior to January 1, 1923, by said board of directors of state institutions and of said office of state engineer, to purposes other than such specified and designated projects; making an appropriation therefor; providing for the raising of funds to meet such appropriation by means of 25% apportionment of state road tax, tax upon passenger capacity per mile, upon designated common carriers; a tax upon truck tonnage of motor trucks and tax upon gasoline and other distillates of crude petroleum; regulating and providing for the deposit, use, accounting for and disbursement of monies paid to the state of Arizona by such subdivisions of the state of Arizona for the construction of designated road projects and moneys paid to the state of Arizona by the United States of America, by virtue of cooperative agreements between the state of Arizona and the United States of America pursuant to an act of the Congress of the United States of America entitled 'An act to provide that the United States shall aid the states in the construction of rural and post roads, and for other purposes' or of any amendment thereto, or pursuant to any other act enacted by the Congress of the United States of America for like purposes; providing for the issuance of, registration and payment of negotiable state warrants and providing for the issuance of negotiable treasurer's certificates of the state of Arizona in anticipation of the collection of the taxes authorized by this act; prescribing the form of such warrants and certificates, the due date and rate of interest thereon; defining offenses in violation of this act and providing penalties therefor."

Sections 1, 2, 3 and 4 of the act provide funds or make appropriations to take care of eight federal aid projects already constructed or in course of construction in different parts of the state, and recognize that those projects have been or are being constructed co-operatively by and between the state and the counties of the state, and by and between the state and the United States, and that, in prosecuting the work, funds have been borrowed from counties by the board of directors of state institutions and the state engineer and not repaid, and that all of the federal government's proportionate contribution has not been made. Repayments to the counties are authorized and directed, and the disposition of the federal aid is provided for, as the same is paid in.

Under section 5 the appropriation for such projects and purposes is made out of the 25 per cent apportionment account of the general fund of the state, and under said section there is further appropriated out of said fund "for the construction and completion of those certain highway projects within the state of Arizona initiated or authorized, but not completed by the board of directors of state institutions and by the office of the state engineer of the state of Arizona prior to January 1, 1923" moneys for forty-eight other named federal aid and nonfederal aid projects located and situated in different parts of the state. The total appropriation out of the 25 per cent apportionment account for the purposes of repaying borrowed money from the counties and completing all of such federal aid and nonfederal aid projects is $1,550,000.

Section 6 authorizes the board of supervisors to enter into contracts with the board of state institutions to expend upon projects within their counties the 75 per cent fund hereinafter mentioned and to pay into the state treasury, out of said fund to be credited to a segregated account within the general fund of the state in favor of such aid projects, the sum agreed to be contributed. Said section also provides the method of handling and crediting federal aid funds.

Sections 7, 8, and 9 contain general provisions for carrying out the general objects of the act.

The Governor's veto was directed to provisions of section 10, and we give such parts thereof as we think essential, italicizing those portions thereof disapproved or vetoed by the Governor:

"Section 10. For the purpose of providing said sum of $1,550,000.00 appropriated in section 5 of this act, the following moneys, funds and license taxes are hereby designated and created:

"(a) There shall be annually levied and collected in the manner in which other state taxes are levied and collected, by a levy of the officials provided by law, a tax of ten (.10) cents on each one hundred ($100.00) dollars, of the assessed valuation of taxable property within the state, for the purpose of the construction, reconstruction, repairing, improving and maintaining state highways and bridges, as follows:

"25% of such tax, herein provided, for, shall be as paid into the treasury of the state of Arizona, deposited by the treasurer of the state of Arizona, in a separate account, in the general fund of the state, to be known and designated as 25% apportionment account.

"Seventy-five per cent (75%) of such 'state road tax fund' herein provided for, shall be apportioned to the several counties in the amount to each county of seventy-five per cent of the taxes collected under this act, by said county, and such amount shall be subject to be paid out for the construction, reconstruction, repair, improvement and maintenance of public highways, roads and bridges in the manner as in this act provided for the work in this act provided for within such county upon the authority and under the direction of the county board of supervisors of such county and the state engineer who are hereby charged with such responsibility.

"Subdivision II.

"(a) There hereby is authorized to be levied and collected a (one-half mill) tax per each scheduled passenger capacity mile, which hereby is defined to mean a tax of (one-half mill) on each and every unit of seating capacity operating over each and every mile between fixed termini, or otherwise, in the state of Arizona, as per schedules on file with the Corporation Commission, or otherwise.

"(b) There hereby is authorized to be levied and collected a (two mill tax) per each scheduled truck ton capacity, or fraction of truck ton capacity mile, which hereby is defined to mean (a tax of two mills) on each and every actual truck ton or fraction of truck ton capacity load operating over each and every mile between fixed termini, or otherwise, in the state of Arizona, as per schedules on file with...