Gila Meat Co. v. State

• Decision Date: 08 April 1929
• Docket Number: Criminal 691
• Citation: 276 P. 1,35 Ariz. 194
• Parties: THE GILA MEAT COMPANY, a Corporation, Appellant, v. STATE, Respondent
• Court: Arizona Supreme Court

276 P. 1

35 Ariz. 194

THE GILA MEAT COMPANY, a Corporation, Appellant, v. STATE, Respondent

Criminal No. 691

Supreme Court of Arizona

April 8, 1929

APPEAL from a judgment of the Superior Court of the County of Gila. C. C. Faires, Judge. Judgment reversed and cause remanded with instructions.

Mr Charles L. Rawlins and Mr. George H. Rawlins, for Appellant.

Mr. K Berry Peterson, Attorney General and Mr. Lloyd J. Andrews Assisant Attorney General, for the State.

OPINION

LOCKWOOD, C. J.

The Gila Meat Company, Incorporated, hereafter called appellant, was convicted of a violation of paragraph 3741, Revised Statutes of Arizona of 1913, Civil Code, as amended by chapter 77, Session Laws of 1927, and has appealed from the judgment rendered against it to this court.

There is but one question involved, and that is whether the statute on which the conviction was based is constitutional. Said statute, so far as applicable, reads as follows:

"The Live Stock Sanitary Board may grant to applicants therefor, on the payment of the fees herein provided and the presentation of proof showing good moral character upon the part of the applicant, a license to slaughter cattle, sheep and goats, as may be set forth in such license so granted. If such slaughter business is to be carried on within, or within four miles of, any town of more than five thousand inhabitants, the applicant shall pay to such Board a sum equal to one hundred fifty dollars per annum for a license to operate such business of slaughtering, the same to be at a fixed and definite slaughtering place; in the event that such slaughtering business is to be carried on within, or within four miles of, any town of three thousand or more inhabitants and less than five thousand inhabitants, then the applicant for such license shall pay the said Board at the rate of one hundred twenty dollars per annum for such license; in case the business is to be carried on within, or within four miles of, any town of one thousand or more inhabitants and less than three thousand inhabitants, the applicant shall pay to said Board at the rate of ninety dollars per annum for such license; all licenses to designate a fixed and definite place where such slaughtering is to be done; in all other cases an applicant shall pay at the rate of thirty dollars per annum for such slaughtering licenses. . . .

"It shall be a misdemeanor for any person to slaughter any animal of the kind mentioned in this act for sale for food, or to peddle or offer for sale any portion thereof, without first procuring one of the two classes of licenses in this paragraph specified. . . . "

It is the position of appellant that the quoted portion of the paragraph violates four distinct provisions of the Constitution of Arizona. We will consider the matter in the order which seems to us logical.

It is the first claimed by appellant that the paragraph is a revenue and not a regulatory measure, and that therefore the principles of law applying to the exercise of the police power need not be considered. The state in its brief did not argue that the act was not a revenue measure, and the Attorney General on oral argument practically conceded that it was. Without discussing the matter in detail, we are of the opinion that, within the meaning of Smith v. Mahoney, 22 Ariz. 342, 197 P. 704, par. 3741, supra, is a revenue measure, and its constitutionality must be judged on that basis. Let us consider, then, the particular objections urged against it.

The first is that it is in contravention of section 1 of article 9 of the Constitution, which reads as follows:

"The power of taxation shall never be surrendered, suspended, or contracted away. All taxes shall be uniform upon the same class of property within the territorial limits of the authority levying the tax, and shall be levied and collected for public purposes only."

We think this contention cannot be sustained. Taxes are classified as poll, property and excise. The meaning of the first two classes is obvious. Excise has come to include every form of taxation which is not a burden laid directly on persons or property, and a tax on the privilege of engaging in an occupation is clearly an excise. Birmingham v. Goldstein, 151 Ala. 473, 125 Am. St. Rep. 33, 12 L.R.A. (N.S.) 568, 44 So. 113. While there are some states which under the peculiar wording of their Constitutions hold that excise taxes must be uniform in the same sense that those on polls and property are, the general rule is that such provisions do not refer to excise. Magoun v. Illinois Trust & Sav. Bank, 170 U.S. 283, 42 L.Ed. 1037, 18 S.Ct. 594; 26 R.C.L., par. 226, and cases cited. The Arizona constitutional provision quoted above on its face refers to "property." We have held that there is a substantial difference between property and excise taxes, and that section 9 of article 9 of the Constitution, which reads as follows: "Every law which imposes, continues, or revives a tax shall distinctly state the tax and the objects for which it shall be applied; and it shall not be sufficient to refer to any other law to fix such tax or object" -- does not cover excise taxes. Hunt v. Callaghan, 32 Ariz. 235, 257 P. 648. If the general word "tax," as used in article 9, section 9, supra, does not include an excise tax, still less would section 1 of article 9, supra, which expressly refers to "property" include it. We hold, therefore, that section 3741, supra, is not obnoxious to section 1 of article 9 of the Constitution.

The next provision of the Constitution which we consider is section 13 of article 2, which reads as follows:

"No law shall be enacted granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which, upon the same terms, shall not equally belong to all citizens or corporations."

We have discussed the general meaning of this section several times. One of the most recent cases is that of State v. Childs and Rockwell, 32 Ariz. 222, 54 A.L.R. 736, 257 P. 366. Therein we said:

"We think the general rule contended for by defendants, to the effect that a statute allowing one class of persons to engage in what is presumptively a legitimate business, while denying such right to others, must be based upon some principle which may reasonably promote the public health, safety or welfare, that unless it does so in some degree it is unconstitutional, and that while every presumption is in favor of the validity of a statute, yet when it clearly appears that on no reasonable theory could such a one contribute to the public health or safety it is the duty of the courts to so declare and to set it aside as unconstitutional, is well taken. Lawton v. Steele, 152 U.S. 133, 38 L.Ed. 385, 14 S.Ct. 499; Dobbins v. Los Angeles, 195 U.S. 223, 49 L.Ed. 169, 25 S.Ct. 18; Ex parte Whitewell, 98 Cal. 78, 35 Am. St. Rep. 152, 19 L.R.A. 727, 32 P. 870; 12 C.J. 930."

And again, in the later case of Prescott Courier, Inc., v. Moore et al., ante, p. 26, 274 P. 163, we stated:

"The purpose of the constitutional provisions cited is to secure equality of opportunity and right to all persons similarly situated. 12 C.J. 1112. The Legislature may classify, but the classification must be predicated on some reasonable basis, which will promote a legitimate purpose of legislation. 12 C.J. 1128."

One of the ways in which special privileges or immunities...