Kaufman v. City of Tucson
| Decision Date | 09 November 1967 |
| Docket Number | No. 2,CA-CIV,2 |
| Citation | 6 Ariz.App. 429,433 P.2d 282 |
| Parties | Alfred KAUFMAN, Nancy Inglehart, Walter Swartz, Honon Thomas and Marvin Hyman, individually and as a class, Appellants, v. CITY OF TUCSON, a municipal corporation, Appellee. 357. |
| Court | Arizona Court of Appeals |
Soble & Meehan, by Joseph H. Soble, Tucson, for appellants.
Gordon S. Kipps, City Atty., by Dwight E. Eller, Asst. City Atty., Tucson, for appellee.
On September 19, 1966 the City Council of Tucson passed City Ordinance No. 2919 raising the existing liquor license tax. Plaintiffs as individuals and members of the class of Liquor Dealers brought suit to enjoin imposition of the increased tax, claiming that the increase was a denial of due process and equal protection rights protected by the 14th Amendment to the U.S. Constitution. At the hearing on the order to show cause why the injunction should not issue, defendant City moved to dismiss the complaint, which motion was granted after the hearing and submission of affidavits. Summary judgment was entered for defendant City and plaintiffs bring this appeal. We have held that evidence introduced at such a hearing is properly considered on a motion for summary judgment. Pace v. Hanson, 6 Ariz.App. 88, 430 P.2d 434 (1967).
There had been no changes in the amounts of various occupational taxes on liquor retailers between January, 1946 and September, 1966. The changes enacted in Ordinance No. 2919 as to retail liquor dealers, computed on an annual basis, are as follows:
Type of license Old Fee 1 New Fee % Increase
Hotel-Motel license for sale of all
spirituous liquors* ......................... $600 $1200 100%
Hotel-Motel beer and wine* ..................... 200 400 100%
Hotel-Motel beer* .............................. 200 300 50%
Retail of all spirituous liquors* .............. 600 900 50%
Retail of beer and wine* ....................... 200 300 50%
Retail of beer* ................................ 200 300 50%
Retail of all spirituous liquors** ............. 300 300 -0-
Retail of beer and wine** ...................... 100 300 200%
Retail beer** .................................. 100 200 100%
Club license for all spirituous
liquors*** ................................... 200 200 -0-
Hotel-Motel for all spirituous
liquors*** ................................... 800 1200 50%
Restaurant retailers license for
all spirituous liquors*** .................... 600 1200 100%
Distiller's license ............................ 600 600 -0-
Brewer's license ............................... 600 600 -0-
Winery license ................................. 300 300 -0-
*By package or drink
**By package only
***By drink only
The first questions for review presented by appellants are whether or not the City had the power to impose the liquor license fees and, if so, did it have the power to raise them. We answer both of these questions in the affirmative. Arizona Constitution, art. 9, § 6, A.R.S., provides in part:
'* * * For all corporate purposes, all municipal corporations may be vested with authority to assess and collect taxes.'
A.R.S. § 4--223, subsec. A provides:
'In addition to the taxes provided for in this chapter, incorporated cities and towns shall have the power to tax the manufacture, sale, possession, distribution, and disposal of spirituous liquors within their corporate limits * * *.'
The power to impose tax must be conferred upon the city by some legislation to warrant imposition thereof by the city. City of Glendale v. Betty, 45 Ariz. 327, 334, 43 P.2d 206 (1935). A city charter enacted by voters is as much law as if enacted by the legislature. Schultz v. City of Phoenix, 18 Ariz. 35, 156 P. 75 (1916). The Tucson City Charter, Ch. IV, § 1(18) specifically authorizes the imposition of a specific occupational tax on liquor dealers. See also, McCarthy v. City of Tucson, 26 Ariz. 311, 316, 225 P. 329 (1924); and Mayor and Common Council of City of Prescott v. Randall, 67 Ariz. 369, 196 P.2d 477 (1948). The tax is valid as a revenue measure and is not limited by a charter provision using the phrase 'license' tax. 9 McQuillin on Municipal Corporations § 26.19 at 40 (3d Ed. Rev.):
'Any distinction between a license tax for revenue and an occupation tax for revenue would seem to be one in name only. * * *'
Local constitutional provisions specifically requiring that taxation shall be equal and uniform throughout the state generally have no application to license fees or taxes and apply only to direct taxation on property as such. Ariz.Const. art. 9, § 1. Home Accident Insurance Co. v. Industrial Commission, 34 Ariz. 201, 269 P. 501 (1928).
The next contention raised by appellants is that they were denied their constitutional rights to equal protection and due process. We find no merit in this contention.
The plaintiff cites no cases to support his contention that the tax is arbitrary and discriminatory because it singles out one particular class of business or segment of the economy for the tax burden, nor do we find any cases so holding. On the contrary, the rule as cited in McQuillin is as follows:
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