Lebeck v. State, Civil 4684

• Decision Date: 24 February 1945
• Docket Number: Civil 4684
• Citation: 62 Ariz. 171,156 P.2d 720
• Parties: GEORGE C. LEBECK, Doing Business as Los Angeles-Albuquerque Express, Appellant, v. STATE OF ARIZONA, a Sovereign State; COUNTY OF MARICOPA, a Body Politic and a Municipal Corporation; TOM BOWLES, as County Assessor of the County of Maricopa, State of Arizona; W. H. LINVILLE, as County Treasurer of Maricopa County, State of Arizona; and J. D. BRUSH, as State Treasurer of the State of Arizona, Appellees
• Court: Arizona Supreme Court

156 P.2d 720

62 Ariz. 171

GEORGE C. LEBECK, Doing Business as Los Angeles-Albuquerque Express, Appellant, v. STATE OF ARIZONA, a Sovereign State; COUNTY OF MARICOPA, a Body Politic and a Municipal Corporation; TOM BOWLES, as County Assessor of the County of Maricopa, State of Arizona; W. H. LINVILLE, as County Treasurer of Maricopa County, State of Arizona; and J. D. BRUSH, as State Treasurer of the State of Arizona, Appellees

Civil No. 4684

Supreme Court of Arizona

February 24, 1945

APPEAL from a judgment of the Superior Court of the County of Maricopa. Howard C. Speakman, Judge.

Action by George C. Lebeck, doing business as Los Angeles-Albuquerque Express against State of Arizona and others to recover taxes paid on plaintiff's motor vehicles under protest to the defendant Tom Bowles, as county assessor of Maricopa county. From a judgment dismissing the complaint, the plaintiff appeals.

Judgment reversed and case remanded with directions.

Messrs Jennings & Salmon; Messrs. Beer & Christy; Mr. Hess Seaman for Appellant.

Mr. Joe Conway, Attorney General, and Mr. A. R. Lynch, Assistant Attorney General, for Appellee State of Arizona.

Mr James A. Walsh, County Attorney, and Mr. Louis B. Whitney, for Appellee Maricopa County.

Hall, Superior Judge. Stanford, C. J., and Morgan, J., concur.Note: Due to Judge LaPRADE having disqualified himself, Honorable Wm. G. HALL of the Superior Court of Pima County was called to sit in his stead.

OPINION

Hall, Superior Judge.

This action was brought by the plaintiff, George C. Lebeck, doing business as Los Angeles-Albuquerque Express, against the State of Arizona, County of Maricopa, Tom Bowles as Maricopa County Assessor, W. H. Linville as Maricopa County Treasurer, and J. D. Brush as State Treasurer, defendants, seeking the recovery of $ 669.60, which plaintiff paid under protest to the defendant Tom Bowles as County Assessor of Maricopa County.

The plaintiff alleges in his complaint that he is a resident of the State of California and at all times subsequent to January 1, 1943, was the owner of certain motor vehicles and was engaged in the business of transporting property by said motor vehicles exclusively in interstate commerce through the State of Arizona under the name of Los Angeles-Albuquerque Express; that said vehicles from time to time subsequent to said first day of January, 1943, and in the regular course of business, passed through and across the State of Arizona. Plaintiff further alleges that under the law of Arizona certain fees and taxes are required to be paid before such motor vehicles may be registered and operated upon the highways of the state; that plaintiff made proper application for said registration and tendered the said defendant Tom Bowles, as Maricopa County Assessor, the full amount of said fees and taxes required by law for the issuance of said registration; that said assessor refused to register or renew the registration of plaintiff's said motor vehicles except upon condition that plaintiff pay a tax on same under the provision of section 11, Article 9 of the State Constitution, as amended by the November 1940 election, to which we shall hereinafter refer to as the amendment; that plaintiff refused to pay any tax purported or claimed to be imposed by said amendment, and that plaintiff paid under protest to the said county assessor the sum of $ 669.60, the amount claimed under and by virtue of said amendment.

The defendants filed a motion to dismiss said complaint on the ground that the collection of said tax was lawful and therefore plaintiff's complaint did not state a claim against the defendants or any of them upon which relief could be granted. The lower court granted the motion to dismiss the complaint and plaintiff elected to stand thereon, and the court entered judgment against the plaintiff and in favor of the defendants, and from the judgment so entered plaintiff appeals.

Said section 11, Article 9, of the Constitution, as amended, so far as material herein, reads:

"Beginning January 1, 1941, a license tax is hereby imposed on vehicles registered for operation upon the highways in Arizona, which license tax shall be in lieu of all ad valorem property taxes on any vehicle subject to such license tax. Such license tax shall be collected annually by the registering officer at the time of application for and before registration of the vehicle each year . . . ."

The plaintiff contends that said amendment creates a tax in lieu of all ad valorem taxes previously charged against motor vehicles and that only such class of motor vehicles which were subject to said ad valorem tax prior to the enactment of the amendment are taxable under and by virtue of the amendment; and that all motor vehicles engaged exclusively in interstate commerce prior to the passage of said amendment, which were only temporarily in the state during the course of such commerce, were not subject to any ad valorem tax.

This court has considered the amendment in the cases of McAhren v. Bradshaw, 57 Ariz. 342, 113 P.2d 932, and Brush v. State, 59 Ariz. 525, 130 P.2d 506.

While plaintiff makes various contentions why he should not be required to pay the tax imposed by the amendment, we believe this case may be disposed of on the sole question of whether the amendment imposes a tax on a class of motor vehicles which were not subject to an ad valorem tax prior to the passage of the amendment.

It is unquestionably the law that motor vehicles engaged solely and exclusively in interstate commerce and only temporarily in the state during the course of such commerce are not subject to ad valorem taxes by such state. 61 C. J. 241, sec. 225.

The tax in question is a "lieu tax," which means "instead of" or "a substitute for." It is not an additional tax on motor vehicles not...