Giragi v. Moore
| Decision Date | 29 June 1936 |
| Docket Number | Civil 3753 |
| Citation | 48 Ariz. 33,58 P.2d 1249 |
| Parties | COLUMBUS P. GIRAGI and GEORGE A. GIRAGI, Copartners, Doing Business Under the Firm Name and Style of "Giragi Brothers, Publishers," and SOUTHSIDE PUBLISHING COMPANY, a Corporation, Appellants, v. THAD M. MOORE, FRANK LUKE and D. C. O'NEIL, as Members of and Constituting the State Tax Commission of Arizona, Appellees |
| Court | Arizona Supreme Court |
APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Judgment affirmed.
Messrs Armstrong, Kramer, Morrison & Roche and Messrs. Sutter & Gentry, for Appellants.
Mr John L. Sullivan, Attorney General, and Mr. A. I. Winsett Assistant Attorney General, for Appellees.
Columbus P. Giragi and George A. Giragi, copartners, doing business under the firm name and style of "Giragi Brothers, Publishers," and the Southside Publishing Company, a corporation, brought an action against Thad M. Moore, Frank Luke and D. C. O'Neil, as members of the State Tax Commission of Arizona, in which they allege that a controversy exists between the plaintiffs and the defendants as to the construction of paragraph 7, subdivision (c) of section 2 of chapter 77 of the Laws of 1935, commonly referred to as "The Excise Revenue Act of 1935" and that a declaratory judgment will terminate it and make clear the rights and duties of the parties thereunder; that the portion of this section which gives rise to the controversy reads as follows:
It appears from the complaint that the contentions of the respective parties as to the meaning of this provision are these: The defendants insist that the sale of advertisements and notices are embraced within the meaning of the term "publication of newspapers" and, hence, that paragraph 7 imposes on the plaintiffs and requires them to pay a tax equal to one per cent. "of the gross proceeds of sales or gross income" derived by them from that source; the plaintiffs contend (1) that neither "gross proceeds of sales" nor "gross income" derived from their newspapers are taxable under this provision because the term "publication of newspapers" includes only circulation and distribution of the newspapers and does not embrace the sale of advertisements and notices; (2) that it was intended that the term "publication of newspapers" should not include advertisements and notices is shown by the fact that an the Excise Revenue Act of 1935, hereafter referred to as the Act, was introduced in the legislature, the expression, "or by the sale of advertisements ant notices," appeared in paragraph 7, subdivision (c), section 2 thereof, after the word, "subscriptions," but that this language was stricken from it by amendment on its way through the legislature and before it was finally passed and approved by the Governor; (3) that the legislature, by expressly including in said paragraph 7 "the gross income derived from subscriptions," excluded the imposition of a tax on advertisements and notices in their newspapers.
It is further alleged that the defendants have demanded that they file with the commission amended returns on business transacted by them during May, June and July, 1935, and include therein the gross proceeds derived from advertisements and notices and that they pay a tax thereon equal to one per cent. thereof; that unless they do make such returns and pay said tax, the defendants threaten to cause the books of the plaintiffs to be audited, to levy said tax, and, if not paid, to cause to be issued warrants of distraint ordering the sheriffs of the counties where the defendants are doing business to seize and sell the plaintiffs' property in satisfaction of said tax.
In their answer the defendants admit that the complaint sets up correctly the meaning both parties attach to paragraph 7, subdivision (c) of section 2 of said chapter 77, but they deny the correctness of plaintiffs' contentions and the allegations setting forth the manner in which paragraph 7 took final form in the legislature, averring that it makes no difference how it read when the act was introduced, for the reason that its form then has no bearing on the intention of the legislature in passing it in the shape in which it was finally adopted and became a law.
Following the filing of the answer the plaintiffs moved for judgment on the pleadings and the court denied their motion but held paragraph 7, subdivision (c) of section 2, sufficiently broad to cover a tax on advertisements and notices and entered judgment for the defendants. Plaintiffs, believing the court's construction of the language of the act erroneous, have brought the matter here for review.
The plaintiffs have made three assignments but have advanced seven or eight propositions of law in support of their view of the one real question presented by the appeal and that is, whether chapter 77 imposes a tax on the gross income of advertisements and notices appearing in the plaintiffs' newspapers, it being conceded that it applies to receipts from subscriptions. The act provides that after it becomes effective there is levied and shall be collected annual privilege taxes in an amount equal to one per cent. of the gross proceeds of sales or gross income from the business of every person engaging in the business of "publication of newspapers, magazines or other periodicals and publications, when published within this state including the gross income derived from subscriptions." This language places a tax on the gross income from the business of publishing newspapers in this state but the contention of the plaintiffs is that by the term "publication of newspapers," as here used, reference is had to the issuance and circulation of the paper and, therefore, to the gross income from subscriptions, and that there was no intention whatever to tax the income from the publication of advertisements and notices. As a basis for this contention they call attention to the definition of the words, "publication," "publish" and "circulate," stating that it appears therefrom "that 'publication of newspapers' means the same thing as putting the newspapers into circulation, and 'circulation' includes and covers subscriptions," and from this draw the conclusion that this provision imposes a tax only on the amounts derived from the sale of newspapers by subscriptions for stated periods, by street sales or by sales to news-stands.
This construction of the word "publication," as here used, is entirely too...
To continue reading
Request your trial
-
San Carlos Apache Tribe v. State
...Ariz. Dep't of Env't Quality 1, https://static.azdeq.gov/pn/azpdes_rcml_fs.pdf (last visited Oct. 3, 2022); see Giragi v. Moore , 48 Ariz. 33, 41–42, 58 P.2d 1249 (1936) ; Ariz. R. Evid. 201(b). We also take judicial notice of ADEQ issuing draft forms of the renewed permit. Draft Permit: Au......
-
Jones v. City of Opelika Bowden v. City of Fort Smith, Ark Jobin v. State of Arizona 966
... ... It would hardly be contended that the publication of newspapers is not subject to the usual governmental fiscal exactions, Giragi v. Moore, 301 U.S. 670, 57 S.Ct. 946, 81 L.Ed. 1334; Id., 48 Ariz. 33, 58 P.2d 1249; Id., 49 Ariz. 74, 64 P.2d 819, 110 A.L.R. 320, or the ... ...
-
Breard v. City of Alexandria, La
... ... Milk Control Board v. Eisenberg Farm Products, 306 U.S. 346, 59 S.Ct. 528, 83 L.Ed. 752. 24. Giragi v. Moore, 301 U.S. 670, 57 S.Ct. 946, 81 L.Ed. 1334; Id., 48 Ariz. 33, 58 P.2d 1249, 110 A.L.R. 314; Id., 49 Ariz. 74, 64 P.2d 819, 110 A.L.R. 320; ... ...
-
Hayes v. Continental Ins. Co.
...613 P.2d 629, 631 (Ct.App.1980). We disagree. Such records are an appropriate subject for judicial notice. Cf. Giragi v. Moore, 48 Ariz. 33, 42, 58 P.2d 1249, 1252 (1936) (appellate court may take judicial notice of legislative journals that constitution requires to be kept); see also Blue ......