McCarthy v. City of Tucson

• Decision Date: 01 May 1924
• Docket Number: Civil 2132
• Citation: 26 Ariz. 311,225 P. 329
• Parties: FRANK M. McCARTHY, Appellant, v. CITY OF TUCSON, a Municipal Corporation, Appellee
• Court: Arizona Supreme Court

225 P. 329

26 Ariz. 311

FRANK M. McCARTHY, Appellant, v. CITY OF TUCSON, a Municipal Corporation, Appellee

Civil No. 2132

Supreme Court of Arizona

May 1, 1924

APPEAL from a judgment of the Superior Court of the county of Pima. S. L. Platee, Judge. Affirmed.

Mr Frank M. McCarthy, in pro. per.

Mr. Ben C. Hill, for Appellee.

OPINION

McALISTER, C. J.

Frank M. McCarthy, appellant herein, is an attorney at law residing in the city of Tucson, where he is now and for several years has been engaged in the practice of his profession. In 1921 that municipality enacted an ordinance subjecting a number of businesses, occupations, and professions carried on therein to the payment of a license tax, and among these was that of attorney at law. The amount imposed upon those following this profession was $5 per quarter. The defendant denied the right of the city to require such a tax, and refused to pay it whereupon the city brought suit to recover the amount due for the quarter beginning October 1, 1921, the first after the ordinance became effective, and obtained judgment. The defendant, being convinced that the judgment was wrong, has brought it here for review, and in doing so relies solely upon the proposition that the court erred in holding the ordinance valid in so far as it attempts to impose a license tax upon the business of practicing law.

The charter under which the city operates is an act of the Twelfth Territorial Assembly, approved March 7, 1883 (Laws 1883, No. 73), entitled "An act to reincorporate the city of Tucson," and section 3, art. 4, thereof empowers its common council -- "to license and regulate all and every kind of business, profession or occupation authorized by law and transacted and carried on in said city; to fix the rates of license tax upon such business, profession or occupation."

This act was in force at the time Arizona became a state, and under section 2, art. 22, of the Constitution of the state, which continued the laws of the territory not repugnant to that instrument as laws of the state, still is. The constitutional requirement that municipal corporations shall be created by general and not by special laws in no way affects it because this provision operates prospectively and applies only to those municipalities created after the Constitution was adopted and statehood realized. The correctness of the court's ruling, therefore, depends upon the meaning to be given the quoted portion of the act of 1883, which constitutes a part of the grant of power to the city of Tucson and calls for a strict construction. 17 R.C.L. 526.

It is conceded that the legislature has the power to authorize a municipality to impose a license tax upon an occupation, profession or business -- that is, upon the privilege of following or practicing the same -- and under all the authorities, save one, the Lawyers' Tax Cases, 8 Heisk. (Tenn.) 565, this applies to the occupation of practicing law. See, Ex parte Dixon, 43 Nev. 196, 183 P. 642, a case in which this point is fully discussed and numerous authorities cited. Appellant contends, however, that the language upon which appellee relies to confer this power is merely a police regulation and for this reason does not include the right to subject those engaged in any occupation to the payment of a license tax for the purpose of raising revenue. The ordinance in question, however, so far as it deals with attorneys, is clearly a revenue measure and not a police regulation. It does not undertake to supervise or regulate the practice of law in any manner, and, if it did, the attempt would be unsuccessful, because that occupation is not one subject to control by the police power, it being neither demoralizing nor dangerous to the public nor threatening to its health or safety. City of Sonora v. Curtin, 137 Cal. 583, 70 P. 674. But this does not prevent a municipality from providing that one practicing law within its limits shall be subject to a license tax, and that the payment thereof may be enforced in a proper proceeding. The question presented, therefore, is whether the language claimed to confer this power is sufficiently broad to do so.

Appellee contends that the words "to license and regulate" and "to fix the rates of license tax," in the language quoted above, include the right to impose a license tax for revenue only, and it appears to us that this contention is correct. The expression "to license and regulate" an occupation, unaided by the words "to fix the rates of license tax" thereupon, was held by the Supreme Court of California in 1878 to include this power. Ex parte Frank, 52 Cal. 606, 28 Am....