Garrison v. Luke, Civil 3995

• Decision Date: 09 May 1938
• Docket Number: Civil 3995
• Citation: 52 Ariz. 50,78 P.2d 1120
• Parties: R. E. GARRISON, H. S. DUNBAR and ERNEST LIRA, Appellants, v. FRANK LUKE, D. C. O'NEIL and THAD MOORE, Members of and Constituting the State Tax Commission of the State of Arizona, Appellees
• Court: Arizona Supreme Court

78 P.2d 1120

52 Ariz. 50

R. E. GARRISON, H. S. DUNBAR and ERNEST LIRA, Appellants, v. FRANK LUKE, D. C. O'NEIL and THAD MOORE, Members of and Constituting the State Tax Commission of the State of Arizona, Appellees

Civil No. 3995

Supreme Court of Arizona

May 9, 1938

APPEAL from a judgment of the Superior Court of the County of Maricopa. J. C. Niles, Judge. Judgment reversed.

Messrs O'Sullivan & Morgan, Mr. George M. Hill and Mr. T. G McKesson, for Appellants.

Mr. Joe Conway, Attorney General, Mr. W. E. Polley and Mr. J. M Johnson, his Assistants, for Appellees.

OPINION

LOCKWOOD, J.

R.E. Garrison, H. S. Dunbar, and Ernest Lira, hereinafter called plaintiffs, brought suit against Frank Luke, D. C. O'Neil, and Thad Moore, as members of the State Tax Commission of Arizona, hereinafter called defendants, to enjoin them from seizing certain property belonging to plaintiffs. The defendants answered, setting up certain reasons why they contended they were justified in making the attempted seizure. Plaintiffs demurred to the answer, and, the demurrers being overruled, stood upon their demurrers, and judgment was rendered in favor of defendants, whereupon this appeal was taken.

The question comes before us on an agreed statement of facts which reads, so far as material, as follows:

"I. That the plaintiffs are the owners and operators of a number of coin operated electric automatic phonograph machines, more particularly described as follows: Each machine is a specially designed electric phonograph machine, so constructed that upon the insertion of a coin or slug into a slot built into the machine and the depression of a button bearing the same number as the particular phonograph record which the player desires to hear, the machine by means of and with the assistance of springs, levers, plungers, electricity and gravity, automatically reproduces the musical selection recorded on the disk so selected. The machines are so constructed that the player has the choice of twelve to twenty different phonograph records on which are recorded musical selections.

"II. That each phonograph, as more particularly described above, owned and operated within the State of Arizona by the plaintiffs, is maintained and placed where such machine is operated for purposes of gain, compensation and profit.

"III. That the issues in this case are limited to two questions: First, whether or not Chapter 78, laws of the regular session, 1935, as amended, imposes a privilege license tax upon each phonograph, as more particularly described above, which is to be paid by the plaintiffs as the owners and operators of such phonograph; second, if such act does impose such tax on such machines, to be paid by the plaintiffs, whether or not chapter 78, laws of the regular session, 1935, as amended, is unconstitutional and of no effect, in the particulars set out in the record."

Chapter 78 of the Session Laws of 1935, referred to in the statement of facts, is entitled:

"An Act relating to taxation, and to provide for the raising of additional public revenue for unemployment and welfare relief by imposing a tax on the sale of certain luxuries and by imposing a privilege tax on the privilege of engaging in certain businesses, and declaring an emergency."

It imposes a tax on many different objects. Article 3 of the act is entitled as follows: "Mechanical Games; Privilege License Tax; Penalties."

And section 1 of said article is in the following language:

"(a) Imposition of Privilege License Tax; Object. In addition to all other taxes there is hereby levied and imposed, for the purpose of raising public money to provide unemployment and welfare relief, a privilege license tax upon each mechanical game or device, in the state of Arizona, as classified in subdivision (b) of this section and maintained or placed where such devices or objects may be operated for purposes of compensation, gain or profit or may be available to members of clubs or societies, which such privilege license tax shall be paid by the owner or lessor of such devices or objects and shall be collected by the state tax commission in the manner hereinafter set forth.

"(b) Upon each mechanical game or device, excluding pay telephones and pay toilets, permitting the operation thereof by insertion therein of coins, slugs or tokens, or which may be operated by means or with the assistance of springs, weights, levers, plungers, magnets, electricity, gravity, or the skill or the force of the player thereof, a privilege license tax of five dollars for each calendar month or fraction thereof for any machine, device, or game upon which a tax is imposed by this act when operated by or in connection with any circus, carnival, show or other traveling attraction, and not operating in a permanent or fixed location, shall be taxed the sum of $10.00 per day for each such machine, device or game. Provided, however, that vending machines which are not games of chance and are used solely for the vending of postage stamps, chewing gums, candies, peanuts, matches, or other merchandise and weighing machines shall not be considered as mechanical games or devices within the meaning of this act."

It is the position of plaintiffs that the automatic phonograph machine described in the statement of facts is not included in the phrase "mechanical game or device" which, by the terms of section 1, supra, is subject to taxation, or that, if it is included in such phrase, then the proviso contained in the last sentence of the section, exempting certain classes of vending machines from the provisions of the section, includes automatic phonographs of the class involved in this action.

It is the contention of defendants that the phrase "mechanical game or device" does include the phonographs owned and operated by plaintiffs, and that they are not vending machines of the class excepted from the tax.

The first question we consider is whether an automatic electric phonograph of the type involved herein is, within the meaning of the act, such a "mechanical game or device" as, in the absence of any exceptions, would be subject to taxation. The word "game" is defined as any contest for success or superiority in a trial of chance, skill, or endurance. Desgain v. Wessner, 161 Ind. 205, 67 N.E. 991. The contest may be against other players, as in most games, or may be against an ideal standard, as in solitaire, or many of the so-called "nickel in the slot" gambling devices, but the contest and doubtful result are always found in every true game. It is obvious that the phonographs operated by plaintiffs are not dependent as to their action upon chance, skill, or endurance, nor is the result of the operation doubtful. The person operating them merely selects from the list of phonograph records found in the machine any one which he desires to hear and then, by the insertion of a coin and the proper manipulation of the machine, the precise record chosen by him will be played. He gets the precise thing which he has chosen and paid for, to wit, the privilege of hearing a certain musical selection. In other words, it is not, in the true meaning of the word, a "game," but rather a vending machine which sells one particular thing, which is commonly called "canned music."

But, say defendants, the machine is within the definition of the act because it is a "mechanical device," even if it is not a "game."

The cardinal rule of statutory construction is that we are to ascertain the meaning of the legislature, and give it effect if such meaning be constitutional. Hicks v Krigbaum, 13 Ariz. 237, 108 P. 482.In determining this intent, we take into consideration many things -- the language used, the object to be accomplished, whether a literal interpretation of the language will lead to an impossibility or an absurdity, the history back of the act, and numerous other matters, no one of which is absolutely controlling as to the intent. It is from a combination of all of these that we deduce such intent. Coggins v. Ely, 23 Ariz. 155, 202 P. 391. Of course if the language is plain and unambiguous, if it can be given but one meaning and that meaning does not lead to an impossibility nor an absurdity such as cannot be contemplated the legislature int...