State Tax Commission v. Miami Copper Co.
| Decision Date | 14 July 1952 |
| Docket Number | No. 5434,5434 |
| Citation | 246 P.2d 871,74 Ariz. 234 |
| Parties | STATE TAX COMMISSION et al. v. MIAMI COPPER CO. |
| Court | Arizona Supreme Court |
Fred O. Wilson, Atty. Gen., Charles C. Stidham, Asst. Atty. Gen., for appellants.
Morris & Malott, of Globe, for appellee.
The defendant, State Tax Commission, appeals from a judgment awarded Miami Copper Company, plaintiff-appellee, for the recovery of excise taxes theretofore paid by it under protest. For convenience sake we shall refer to the appellant as the 'Commission' and to the appellee as plaintiff or the 'Company'.
Although five separate appeals have been filed by the Commission, our numbers 5434, 5435, 5436, 5437, 5438, by stipulation of the parties they were consolidated for presentation to this court. 74 Ariz. 244, 246 P.2d 877; 74 Ariz. 246, 246 P.2d 879; 74 Ariz. 247, 246 P.2d 879; 74 Ariz. 247, 246 P.2d 880. The legal questions presented are identical although the tax levied against the plaintiff Sam Knight Mining Lease, Inc., 74 Ariz. 244, 246 P.2d 877, is based under a different subdivision of the statute. None of the facts are in dispute.
The additional assessments levied by the Commission, covering the period January 1, 1942 to December 31, 1946, were paid under protest by the five companies involved in these appeals, and the moneys so paid are presently impounded in the Tax Protest Fund as provided in the Act. After a formal hearing the Commission denied the protests and separate actions were brought in the superior court of Gila county to recover these impounded tax moneys. In each case both the plaintiff and defendant moved for a summary judgment. The motions of the Commission were denied and those of the mining 'companies' were granted and judgments were duly entered thereon. These appeals followed.
A procedural matter, involving the question as to whether the Commission timely appealed from these judgments, will first be considered. The lower court on May 26, 1950, after granting the plaintiffs' motions for summary judgments, directed the clerk of the court to enter judgments for them as prayed for in their respective complaints. Appropriate entries were accordingly made in the judgment docket entering judgments, on June 1, 1950, for all the plaintiffs except the judgment for Sam Knight Mining Lease, Inc., which was entered on June 3, 1950. The Commission on July 25, 1950, more than twenty days after the entry of these judgments, filed their notices of appeal.
Plaintiffs, by their motions to dismiss filed in this court, directly raise the question whether section 21-1801 (Rule 72), as amended, A.C.A.1939, supersedes the provisions of section 73-1318, A.C.A.1939, insofar as the time within which an appeal may be taken to this court. Section 73-1318, supra, was enacted by the Twelfth Legislature as part of the Excise Revenue Act, Chap. 77, Laws 1935, A.C.A.1939, § 73-1301 et seq., and in part provides:
(Emphasis supplied.)
Section 21-1801, supra, was promulgated and adopted as part of the Rules of Civil Procedure for the Superior Courts of Arizona, by the Supreme Court of Arizona, effective January 1, 1940, and provides:
'When an appeal is permitted by law to the Supreme court, it shall be taken by notice filed with the Superior court within sixty (60) days from the entry of the judgment or order appealed from, as provided by these rules. * * *' (Emphasis supplied.)
Concededly the notices of appeal were not filed within twenty days from the entry of the judgments, and if section 73-1318, supra, applies these appeals must be dismissed as this court would not have acquired jurisdiction to hear them. In re Gipson's Estate, 64 Ariz. 181, 167 P.2d 383.
Section 21-1801, supra, was adopted pursuant to the express authority granted to the supreme court by the legislature in the following statutes, Chap. 8, Laws 1939, now appearing in the A.C.A.1939 as sections:
'19-202. Rules of pleading, practice, and procedure.--The Supreme Court, by rules promulgated from time to time, shall regulate pleading, practice and procedure in judicial proceedings in all courts of the state, for the purpose of simplifying the same and of promoting the speedy determination of litigation upon its merits. Such rules shall not abridge, enlarge or modify the substantive rights of any litigant. * * *
See also Burney v. Lee, 59 Ariz. 360, 129 P.2d 308.
Appellee's position is that the right to appeal was given by section 73-1318, supra, and that the legislature also conditioned the right upon its being taken within twenty days, which in these special proceedings is a matter of substantive law and cannot be repealed or changed by a rule of this court. They further urge that a general rule does not repeal a special statute unless the intent to do so is manifest and that where the two are not inconsistent they can exist side by side, and that repeals by implication are not favored.
We have repeatedly held that the right of appeal exists solely by virtue of an express constitutional or statutory provision. In other words, an appeal is a privilege granted by the constitution or statute and in the absence of an express provision granting the right, none exists. Smith v. Trott, 36 Ariz. 166, 283 P. 726, 728; In re Sears' Guardianship, 44 Ariz. 408, 38 P.2d 308.
In 21 C.J.S., Courts, § 172, subsection d, the principle is stated as follows:
'Subject to the principle that rules of court must not contravene constitutional or statutory provisions nor regulate substantive rights, courts may, especially where the legislature has provided no mode of procedure, adopt reasonable rules of practice with respect to appeals and writs of error, such as the time within which the proceeding for review must be taken or exceptions be presented, and such as the time within which the notice of appeal be given; * * *.'
We think the above draws a distinction between the right of appeal which is substantive and the time within which the notice of appeal must be filed. The latter is procedural and subject to reasonable regulations by the courts. It therefore follows that the provisions of section 73-1318, supra, granting the right of appeal in tax cases, is substantive. It also follows that the proviso regarding the time within which an appeal must be taken is procedural and under section 19-204, supra, is a rule of court. Cf. Burney v. Lee, supra.
It would serve no useful purpose to review the authorities on the propositions that a later general rule or statute does not overrule a prior special statute or that repeals by implication are not favored. Suffice it to say that it is our considered opinion that the manifest intent of this court in adopting 21-1801, supra, was to repeal those existing rules and statutes which are inconsistent with it. Therefore the time within which an appeal may be taken in a tax proceeding is governed by section 21-1801, supra. The motion to dismiss is denied.
The basic issue involved in this appeal is whether the amounts paid by the federal government to these mining companies as subsidies for the production of over-quota copper may be included in determining the amount of the tax imposed by the Excise Revenue Act of 1935. Chap. 77, S.L.1935.
During the course of World War II the federal government found it necessary, in order to prevent hoarding, price spiraling inflation and profiteering, to set up the Office of Price Administration whose duty it was to maintain price stability and prevent undue price rises. This agency in August of 1941 established a price ceiling of 12cents per pound on copper. It soon became apparent that under this price schedule there would be an insufficient production of metals because many mining companies would not be able to operate at a profit and as a result our war effort would be hampered. In view of this and in order to facilitate the greatest possible production of copper and other metals, the War Production Board and the OPA announced a 'premium price plan' whereby the Metals Reserve Company, a federal instrumentality (subsidiary of the Reconstruction Finance Corporation), would pay a subsidy as 'a premium for production in excess of monthly quotas, * * * to compensate producers for extra costs involved in expanding the output.' Quotas were then established for each producer (including the mining companies involved in these appeals), and before the producer could secure the subsidy it was required to furnish the Metals Reserve Company's agent, an affidavit 'showing among other things, the amount of material in excess of quota delivered during the month covered by such affidavit * * *', and a further showing that such producer was not in arrears in monthly deliveries required under his quota.
Apparently it is the contention of the Commission that the subsidy payments made to these mining companies should be considered in arriving at the amount of the tax levied under the Excise Revenue Act, under any one of three bases, viz: 'gross proceeds of sales', or 'gross income' or 'value' of the product shipped out of the state in an unfinished condition. Specifically, however, under its one assignment of error, the Commission urges that the mining by plaintiffs of over-quota copper constituted a business activity within the meaning of the Act and that the
'business done by plaintiffs in said mining was...
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...assessment the County and the Department agree was "erroneous." This right was a substantive right. See State Tax Comm'n v. Miami Copper Co., 74 Ariz. 234, 238, 246 P.2d 871, 875 (1952) (right to appeal is substantive right). The adoption of a restrictive definition of "erroneous assessment......
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