Smith v. Mahoney

• Decision Date: 04 May 1921
• Docket Number: Civil 1847
• Citation: 22 Ariz. 342,197 P. 704
• Parties: JAMES SMITH, Appellant, v. W. P. MAHONEY, Sheriff of Mohave County, Arizona, Appellee
• Court: Arizona Supreme Court

197 P. 704

22 Ariz. 342

JAMES SMITH, Appellant, v. W. P. MAHONEY, Sheriff of Mohave County, Arizona, Appellee

Civil No. 1847

Supreme Court of Arizona

May 4, 1921

APPEAL from a judgment of the Superior Court of the County of Mohave. E. Elmo Bollinger, Judge. Judgment reversed and appellant discharged.

STATEMENT OF FACTS.

The appellant was tried and convicted of a misdemeanor before the justice of the peace for Kingman precinct, in Mohave county and was sentenced to pay a fine of fifty dollars, and in default of payment to imprisonment in the county jail for a term of twenty-five days. He was committed to the custody of the sheriff of the county to be detained until the fine was paid or such term of imprisonment was served. The charge against the appellant was that he drove a band of sheep from the state of Utah into Mohave county, Arizona, and there pastured the animals without first having procured a license as required by chapter 115, Session Laws of Arizona of 1919. The appellant procured a writ of habeas corpus to be issued out of the superior court of the county (Mohave) seeking to be released from custody, but upon the hearing the court denied the writ, and dismissed the appellant's petition. From this judgment the appeal is taken. The statute under which the conviction of the appellant was obtained reads as follows:

"An act providing for the licensing of sheep, goats, cattle or horses owned or leased by nonresidents; for the amount of license therefor; prescribing the penalty for failure to procure same; empowering the sheriffs of the various counties to collect said license and providing for the disposition of said fund.

"Be it enacted by the Legislature of the state of Arizona:

"Section 1. Every nonresident person, firm, partnership, association or corporation who may graze, herd or pasture sheep, goats, cattle or horses within the state of Arizona, as either owner, lessee or manager of said sheep, goats, cattle or horses, must annually procure a license therefor from the sheriff, as collector of transient grazing licenses, of each county within which said sheep, goats, cattle or horses are grazed, herded or pastured, and shall pay therefor the amount of twenty-five cents per head for each and every sheep or goats and fifty cents per head for each and every head of cattle or horses grazed, herded or pastured within the state of Arizona.

"Sec. 2. Every nonresident person, firm, partnership, association or corporation who shall engage in the business of grazing, herding, or pasturing of any sheep, goats, cattle or horses, as either owner, lessee or manager thereof, within any county of the state of Arizona, or who shall graze, herd or pasture sheep, goats, cattle or horses, within any county of said state, without first having procured a license therefor, as prescribed by the preceding section, shall be guilty of a misdemeanor.

"Sec. 3. For the purposes of this act, the sheriffs of the various counties shall bethe collectors of licenses.

"Sec. 4. All moneys collected for sheep, goat, cattle or horse grazing licenses during each month, shall, on or before the tenth day of the following month, be paid by the sheriff, as license collector, to the county treasurer of the county wherein said licenses are collected, and shall be by him placed to the credit of the general fund of said county.

"Sec. 5. All acts or parts of acts in conflict with the provisions of this act are hereby repealed."

Mr. Edmond H. Ryan and Mr. D. N. Straup, for appellant.

The Attorney General of the State, Mr. C. W. Herndon, and Mr. S.D. Stewart, County Attorney, for Appellee.

OPINION

BAKER, J.

(After Stating the Facts as Above.) The appellant attacks the validity of the act of the legislature under which he was convicted as being violative of both the federal and state Constitutions in a number of specified particulars, none of which will be discussed in the opinion except the claim that the act is a revenue or tax measure and offends section 1, article 9, of the state Constitution, because the tax provided for is not uniform and is unequal. Section 1, article 9, reads as follows:

"All taxes shall be uniform upon the same class of property within the territorial limits of the authority levying the tax, and shall be levied and collected for public purposes only."

The state claims that the act is a police measure requiring the payment of a license fee by nonresidents for the privilege of grazing sheep, goats, cattle, or horses within the state of Arizona.

Courts may not lightly set aside a legislative enactment. Every reasonable doubt is to be resolved in favor of the law, and before an act can be declared to be unconstitutional it must clearly appear that it cannot be supported by any reasonable intendment or allowable presumption.

"Courts will approach the question with great caution, examine it in every possible aspect, and ponder upon it as long as deliberation and patient attention can throw any new light on the subject, and never declare a statute void, unless the nullity and invalidity of the act are placed, in their judgment beyond reasonable doubt." In re Wellington et al., Petitioners, 16 Pick. (Mass.) 87, 95, 26 Am. Dec. 631.

Nor has the question of the wisdom of the legislation anything to do with determining its constitutionality. That question is for the legislature, and whether the court agrees with it in that particular or not is of no consequence. It is solely a question of power.

Therefore it is our bounden duty to view the legislative enactment under consideration in the light of these great stars and sustain it, unless we are convinced beyond reasonable doubt that it is clearly in conflict with the constitutional provision.

Whether the enactment was the exercise of the police power of the state or the taxing power depends upon the purposes of the act. Thus we find it stated in 22 Am. & Eng. Ency. of Law (second edition), 917:

"The police power must also be distinguished from the taxing power, and the distinction is this: That the taxing power is exercised for the raising of revenue, while the police power is exercised only for the purpose of promoting the public welfare, and though this end may be attained by taxing or licensing occupations, yet the object must always be regulation and not the raising of revenue, and hence the restrictions upon the taxing power do not apply."

And in Cooley's Constitutional Limitations (sixth edition), page 242, it is said:

"A license is issued under the police power; but the exaction of a license fee with a view to revenue would be the exercise of the power of taxation."

In another work of the same eminent author, it is said:

"The right of any sovereignty to look beyond the immediate purpose to the general effect neither is nor can be disputed. The government has general authority to raise a revenue and to choose the methods of doing so; it has also general authority over the regulation of relative rights, privileges, and duties, and there is no rule of reason or policy in government which can require the legislature, when making laws with the one object in view, to exclude carefully from its attention the other. Nevertheless, cases of this nature are to be regarded as cases of taxation. Revenue is the primary purpose, and the regulation results from the methods of apportionment that are resorted to in obtaining the revenue. Only those cases where regulation is the primary purpose can be especially referred to the police power. 2 Cooley on Taxation (3d ed.), p. 1127.

The distinction between the exercise of the police power of the state and the taxing power pointed out in the foregoing authorities has been recognized in numerous decisions of the courts holding that a license fee imposed under the guise of the police power was in legal effect a tax. We cite some of the cases without any attempt to exhaust the list. Ex parte Mayes, 14 Okl.Cr. 696, 174 P. 1181; Ellis v. Frazier, 38 Or. 462, 53 L.R.A. 454, 63 P. 642; Pittsburgh C. & St. L. Ry. Co. v. State, 49 Ohio St. 189, 16 L.R.A. 380, 30 N.E. 435; Muhlenbrinck v. Commissioners, 42 N.J.L. 364, 36 Am. Rep. 518; North Hudson County Ry. v. Hoboken, 41 N.J.L. 71; Mestayer v. Corrige, 38 La. Ann. 707; Pitts v. Vicksburg, 72 Miss. 181, 16 So. 418; Livingston v. City Council of Albany, 41 Ga. 21; State ex rel. School Dist. v. Boyd, 63 Neb. 829, 58 L.R.A. 108, 89 N.W. 417; City of Kansas v. Corrigan, 18 Mo.App. 206.

So then the question here is this: What is the purpose of this enactment? What is the natural effect of putting it into operation? The fundamentals tell us that the purpose must be gleaned from the natural and legal effect of the language employed in the act. But the court will look beyond the mere title or the bare legislative assertion that the provision is for a license to see and determine the real object, purpose and result of the act. The nomenclature is not so essential. 6 R.C.L. 237; Loohner v. New York, 198 U.S. 45, 3 Ann. Cas. 1133, 49 L.Ed. 937, 25 S.Ct. 539 (see, also, Rose's U.S. Notes). It is apparent at first blush that the license provided for in this extraordinary act is imposed for the purpose of revenue, and consequently does not fall within the protection of the police power of the state. It cannot be said, with any degree of confidence, that the primary object of the act is the prevention of some offense or manifest evil, or that it has for its primary aim the preservation of the public health, morals, safety, or welfare. It shows upon its face that regulation is not its purpose, but that revenue or undue restriction in the interest of others not embraced in the class designated is the aim in view. We say this cautiously and without any intent to reflect upon the...