Territory of Arizona of Arizona of Arizona v. Connell

• Decision Date: 10 January 1888
• Docket Number: Crim. 210
• Citation: 2 Ariz. 339,16 P. 209
• Parties: THE TERRITORY OF ARIZONA, Plaintiff and Respondent, v. ROBERT CONNELL, Defendant and Appellant
• Court: Arizona Supreme Court

16 P. 209

2 Ariz. 339

THE TERRITORY OF ARIZONA, Plaintiff and Respondent, v. ROBERT CONNELL, Defendant and Appellant

Crim. No. 210

Supreme Court of Arizona

January 10, 1888

APPEAL from a Judgment of the District Court of the Third Judicial District in and for the County of Yavapai.

Affirmed.

John A Rush and Sumner Howard, for Appellant.

The revenue law of 1887, so far as it imposes a license tax is oppressive, irregular and void for the reason that it being a territorial tax, does not apply "equally" and with "uniformity" to all wholesale and retail dealers in spirituous and malt liquors (or either) in the territory, but on the contrary, makes a material discrimination between such dealers as a class, varying the amount of license tax to be paid; the distinction and difference in the amount to be paid by dealers being made dependent upon the place or places in said territory where the business of selling liquors is to be carried on. Said difference, distinction, and want of uniformity and equality, is arbitrary. In taxing the business or occupation of the citizen for state, territorial, county or municipal revenue, the principal of uniformity and equality within the limits of the territory in which the tax is imposed and for whose benefit the revenue is raised, as applied to classes of business or occupation is universally recognized as fundamental. See Art. 17, p. 26, Comp. Laws; Cooley's Constitutional Lim. p. 499; also 501-2-3-4, note to 507, and note to 509, 515, 516.

The Constitution of the United States provides that "All duties, imposts and excises shall be uniform." 1 Bouvier Law Dict. p. 455; Loughborough v. Blake, 5 Wheat 318; People v. Coleman, 4 Cal. 46, 60 Am. Dec. 589; People v. McCreery, 34 Cal. 460; City of Lexington v. McQuillan, 9 Dana 513, 35 Am. Dec. 163 to 167; People v. Township Board, Vol. 9, American Law Register, page 488, and cases cited therein; Gerrard Co. v. Nav. Co., Vol. 10 Am. Law Reg. pp. 154-155; Bill of Rights, Comp. Laws, page 26, Art. 17.

As to what is uniform operation, see State v. Boyd, 19 Nev. 43, 5 P. 735-6; Zeigler v. Gaddis, 44 N. J Law, 365. Comm. v. Patton, 88 Pa. St. 260; City of Newton v. Atchison, 31 Kan. 151, 47 Am. Rep. 486, 1 P. 295-7.

License taxes must be uniform. Stimson's Am. St. Law, page 88. It must reach all of a class. Cooley on Tax. 128-129 (Note) pp. 178-180, 230 (Note).

John C. Herndon, Dist. Atty., for Respondent.

Porter, J. Wright, C. J., and Barnes, J., concur.

OPINION

The facts are stated in the opinion.

PORTER, J.

The defendant in this case was prosecuted for a violation of section 2239 of the Revised Statutes by selling liquors in less quantities than one quart without a license therefor. He was found guilty, and sentenced to pay a fine according to section 2236, Rev. St. From that judgment he appeals to this court. He urges that the law is void, for the reason that it is a mere tax, and lacks the requirement of uniformity in this: that the rate for a license to a liquor dealer is fixed at $ 50 per quarter, and the rate for one who sells liquors at a wayside inn or station is fixed at $ 10 a quarter, and exempts a physician or apothecary who sells liquors used in the preparation of medicines. The act in question requires a license of liquor dealers, saloon keepers, hawkers or peddlers, theaters and shows, billiard table keepers, brewers and distillers, and gamblers. If it be considered merely as a tax and having no other object the general idea of uniformity is required. It belongs to that class of taxes imposed in the form of duties, imposts, and excises. They often take the form of license fees for permission to carry on particular occupations or to enjoy special franchises. The rate may be determined by the amount of business done, or profits earned, or they may be direct upon property in proportion to its value, or upon some other basis of apportionment which the legislature shall regard as just. Cooley, Const. Lim. c. 14, and cases cited. Such laws are within the taxing power. Perfect accuracy cannot be attained. If the rate were the same for all liquor dealers he who sold most at largest profit would be taxed least, yet no one would say such a law violates the principle of uniformity. A law fixing the rate by profits would be theoretically uniform; yet such a law would be impracticable. Profits are controlled by so many facts, good management, favorable location, and other ever-changing conditions, that such a law could not be enforced. The law declares that all who sell liquors within five miles of a town or city shall pay one rate and the keeper of a wayside inn or station another rate. There is uniformity as to each class, and the classification is reasonable and within the power of the legislature to make. Marmet v. State, 45 Ohio St. 63, 12 N.E. 463; Cleveland v. Tripp, 13 R.I. 50; Bishop v. Tripp , 15 R.I. 466, 8 A. 692; Anderson v. Brewster, 44 Ohio St. 576, 9 N.E. 683.

It must be remembered that the principle of uniformity is stated in different forms in the several state constitutions, each one of which must be construed by its terms. City of St Louis v. Spiegel, 90 Mo. 587, 2 S.W. 839; Davis v. Gaines, 48 Ark. 370, 3 S.W. 184; Town of Highgate v. State, 59 Vt. 39, 7 A. 898; City of Allentown v. Adams, (Pa.) 8 A. 430; Taxpayers etc. Assn. v. Kirkpatrick, 41 N.J. Eq. 347, 7 A. 625; Adler v. Whitbeck, 44 Ohio St. 539, 9 N.E. 672. The territories have no such constitutional limitations. The act of congress declares that "the legislative power of every territory extends to all rightful subjects of legislation not inconsistent with the constitution and laws of the United States." Section 8, art. 1, Const. U. S.: "The congress shall have power to lay and collect taxes, duties, imposts, and excises," etc.; ...