Luke v. East Vulture Mining Co., Civil 3687

Citation54 P.2d 1002,47 Ariz. 220
Decision Date02 March 1936
Docket NumberCivil 3687
PartiesFRANK LUKE, THAD M. MOORE and D. C. O'NEIL, as Members of and Constituting the State Tax Commission of the State of Arizona, Appellants, v. EAST VULTURE MINING COMPANY, a Corporation, Appellee
CourtSupreme Court of Arizona

APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Judgment affirmed.

Mr John L. Sullivan, Attorney General, and Mr. A. I. Winsett Assistant Attorney General, for Appellants.

Messrs Cornick & Carr and Mr. W. T. Elsing, for Appellee.

OPINION

ROSS, J.

Section 2 and paragraph 1 of subdivision (c) thereof, article 2 chapter 77, Laws of 1935, provided that the state tax commission shall levy and collect a privilege tax of 1 per centum upon the gross proceeds of sales or gross income from the businesses of "mining, quarrying, smelting or producing for sale, profit, or commercial use any... gold, silver or other mineral product," the amount of such tax to be determined by the application of the rate of the tax against values, gross proceeds of sales, or gross income, as the case may be.

The appellee East Vulture Mining Company, hereinafter referred to as the mining company, on May 22, 1935, and after the effective date of chapter 77, supra, sold, transferred and delivered to the mint of the United States at San Francisco gold bullion, for which it received $3,402.49, and, at the same time, the mint paid the mining company $17.16 for silver bullion. The mining company paid to the appellant tax commission 1 per centum on the value of this bullion, or,34.20.

The mining company also shipped concentrates to the United Verde Extension Mining Company for processing, from which said concentrates it received the sum of $1,068.64 from the government of the United States, and upon which it paid the appellant tax commission a tax of 1 per centum, or $10.68.

These taxes were paid under protest, as permitted in section 17 of said chapter, and thereafter the mining company brought this action for their recovery. Defendant tax commission demurred to the complaint. The court overruled the demurrer and entered judgment for the plaintiff mining company, from which judgment the tax commission has appealed.

The question involved is the right of the state to levy and collect an excise tax on gold and silver bullion mined in the state of Arizona and thereafter sold or transferred to the government of the United States for an equivalent amount of any other form of currency or coin issued or coined under the laws of the United States.

It is the contention of the mining company that the privilege tax is not applicable to sales of gold and silver bullion to the government of the United States, for two reasons, the first being that the provisions of chapter 77, supra, do not permit such taxes to be levied and collected, and the second being that, because gold and silber bullion are means or instrumentalities employed or used by the national government in the performance of its functions, they may not be taxed or burdened or interfered with by the state.

Section 7, article 2 of said chapter, so far as...

To continue reading

Request your trial
8 cases
  • Pratt-Gilbert Hardware Co. v. O'Neil
    • United States
    • Arizona Supreme Court
    • September 30, 1946
    ... ... McGoldrick v. Berwind-White Coal Mining ... Co., supra); the sale as stated in the brief ... Luke v. East ... Vulture Min. Co., 47 Ariz. 220, 54 ... ...
  • BLACK HAWK CONSOL. MINES CO. v. GALLEGOS
    • United States
    • New Mexico Supreme Court
    • April 23, 1948
    ...deposit results in a transfer of title, and is in effect a sale, Walling v. Haile Gold Mines, 4 Cir., 136 F.2d 102; Luke v. East Vulture Min. Co., 47 Ariz. 220, 54 P.2d 1002, the legislature intended to, and did, exclude it from the statutory exemptions of sales to the United States, even t......
  • Duhame v. State Tax Commission
    • United States
    • Arizona Supreme Court
    • March 12, 1947
    ... ... 160; ... Western Union Telegraph Co. v. State of Texas, 62 ... Tex. 630, 635; 40 ... court in the case of Luke v. East Vulture Mining ... Co., 47 Ariz. 220, ... ...
  • State Tax Commission v. Wallapai Brick & Clay Products, Inc.
    • United States
    • Arizona Supreme Court
    • October 15, 1958
    ...has previously construed an exemption statute worded very similarly pertaining to 'sales' to the U. S. Government. Luke v. East Vulture Mining Co., 47 Ariz. 220, 54 P.2d 1002; State Tax Commission v. Al Stovall Manganese, 84 Ariz. 333, 327 P.2d 1011. In the Stovall Manganese case the court ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT