Fox v. Galloway

Citation148 P.2d 922,174 Or. 339
PartiesFOX <I>v.</I> GALLOWAY ET AL. SEDLOCK ET AL. <I>v.</I> GALLOWAY ET AL.
Decision Date09 May 1944
CourtOregon Supreme Court
                  Discrimination in license-tax regulations based on difference
                of methods as used in same kind of business, note, 99 A.L.R. 703
                See, also, 12 Am. Jur. 192
                  16 C.J.S., Constitutional Law, §§ 99, 520
                

Before BAILEY, Chief Justice, and ROSSMAN, KELLY, LUSK, BRAND and HAY, Associate Justices.

Appeals from Circuit Court, Multnomah County.

EARL C. LATOURETTE, ALFRED P. DOBSON, and ASHBY C. DICKSON, Judges in the Fox case.

WALTER L. TOOZE, Judge in the Sedlock case.

Separate suits by Sol Fox, an individual doing business under the assumed name and style of S. Fox & Company, and by S.A. Sedlock, an individual doing business under the assumed name and style of S.A. Sedlock & Company, respectively, against Charles V. Galloway, and others, constituting the State Tax Commission, and others, to enjoin the enforcement of a privilege tax on owners of certain coin-operated mechanical devices. From decrees for the respective plaintiffs, named defendants appeal. The cases were consolidated for purposes of briefing and argument.

MODIFIED.

James G. Smith, and George William Neuner, Assistant Attorneys General (George Neuner, Attorney General, on the brief), for appellants.

Paul R. Harris, of Portland, for respondents.

BAILEY, C.J.

These two suits were instituted to enjoin the individual members of the state tax commission of Oregon, the sheriff of Multnomah county and the chief of police of the city of Portland from enforcing, because of the alleged unconstitutionality thereof, chapter 220, Oregon Laws 1943, imposing a privilege tax on the owners of certain designated coin-in-the-slot-operated mechanical devices. The sheriff and the chief of police were not served with summons and made no appearance in either case. As to those officers both suits were dismissed.

Demurrers to the complaint in each suit were overruled, and upon failure of the defendants to plead further decrees were entered in favor of the respective plaintiffs, from which decrees the defendants have appealed. The two cases were consolidated in this court for the purposes of briefing and argument.

In one of the cases Sol Fox, doing business as S. Fox and Company, is the plaintiff. He alleges that he is the owner and operator of thirty-eight coin-in-the-slot-operated mechanical devices designed to provide music and ranging in value from fifty dollars to six hundred dollars each, which machines are "located in numerous and divers places of business in the city of Portland, Oregon"; that such machines are moved from one location to another on an average of five times a month; and that he is also the owner of "numerous other coin-in-the-slot-operated mechanical devices, of divergent values, designed to provide music, which he displays for leasing and selling purposes in his headquarters, place of business and store room" in Portland.

S.A. Sedlock, doing business as S.A. Sedlock & Company, is the plaintiff in the other case. He alleges that he is the "owner and operator or displayer of fifty coin-in-the-slot-operated mechanical games or devices designed to be played for amusement, other than music, only, and to return to the player thereof no coins, tokens or merchandise"; that twenty-three of those devices have a reasonable market value of five hundred dollars each, and twenty-seven, of seventy dollars each; that those mechanical devices or games are located "in numerous and divers places of business in the city of Portland, ... where they are left upon a concession basis with individuals operating said divers places of business and who display or operate said devices"; that the changes of location of those devices total, on the average, three hundred a year; and that Sedlock is also the owner of numerous other similar mechanical devices which he displays for leasing and sale purposes in his place of business in Portland, Oregon.

Except as to the description of the devices owned by the respective plaintiffs, the allegations of the two complaints are almost identical, as are the charges of unconstitutionality of the act involved.

Chapter 220, Oregon Laws 1943, provides in part as follows:

"Section 1. There hereby is imposed on every coin-in-the-slot-operated music and amusement device of every description or designation, a privilege tax. The amount of such tax shall be as follows:

"(a) On every coin-in-the-slot-operated mechanical game or device designed to be played for amusement, other than music, only and to return to the player thereof no coins, tokens or merchandise, an annual tax of fifty dollars ($50) each.

"(b) On every coin-in-the-slot-operated mechanical device which is designed to provide music, an annual tax...

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48 cases
  • Peters v. McKay
    • United States
    • Supreme Court of Oregon
    • November 14, 1951
    ......388, 17 P.2d 1111; Title & Trust Co. v. Wharton, 166 Or. 612, 114 P.2d 140; Federal Land Bank v. Schermerhorn, 155 Or. 533, 64 P.2d 1337. However, the issue here must be determined by the application of other rules of construction equally well established. In the leading case of Fox v. Galloway, 174 Or. 339, 148 P.2d 922, 925, this court in an opinion by Mr. Justice Bailey, an authority on statutory construction, said: .         '* * * The cardinal rule of statutory construction is to ascertain the meaning of the legislature and give it effect, if such meaning is constitutional. ......
  • State v. Buck
    • United States
    • Supreme Court of Oregon
    • October 21, 1953
    ...... 'The cardinal rule for the construction of a statute is to ascertain from the language thereof the intent of the lawmakers as to what purpose was to be served, or what object was designed to be attained. Leonard v. Ekwall, 124 Or. 351, 359, 264 P. 463; Fox v. Galloway, 174 Or. 339, 346, 148 P.2d 922. We accomplish this with such aid as may be found in the rules of interpretations and legitimate extrinsic sources, always keeping in mind that the legislative intent to enact a valid and constitutional law will be assumed. Fullerton v. Lamm, supra, 177 Or. , at ......
  • Milwaukie Co. of Jehovah's Witnesses v. Mullen
    • United States
    • Supreme Court of Oregon
    • September 17, 1958
    ......Municipal Corporations § 228(3), p. 570; Annotation 168 A.L.R. 146. .         Every statute is presumed to be constitutional, and all doubt must be resolved in favor of its validity. As a corollary, he who assails it has the burden of establishing its invalidity. Fox v. Galloway, 174 Or. 339, 347, 148 P.2d 922, and cases there cited; Detroit International Bridge Co. v. Corporation Tax Appeal Board of Michigan, 287 U.S. 295, 297, 53 S.Ct. 137, 77 L.Ed. 314. .         The same burden prevails when one asserts, as here, that the acts of an official, or group of ......
  • Johnson v. Star Machinery Co.
    • United States
    • Supreme Court of Oregon
    • December 19, 1974
    ......         This rule is firmly established in Oregon. In Fox v. Galloway, 174 Or. 339, 346--347, 148 P.2d 922, 925 (1944), this court stated that: . '* * * The cardinal rule of statutory construction[270 Or. 705] is to ascertain the meaning of the legislature and give it effect, if such meaning is constitutional. In determining the intent many things are taken into ......
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