The City of Glendale v. Betty, Civil 3605

• Decision Date: 08 April 1935
• Docket Number: Civil 3605
• Citation: 43 P.2d 206,45 Ariz. 327
• Parties: THE CITY OF GLENDALE, a Municipal Corporation; FRANK CARDEN, C. M. HARPER, JOE WHITNEY, JASPER LYNCH, O. O. MOBLEY, H. T. SWISHER, and J. E. SMITH, Members of the Common Council of the City of Glendale, Maricopa County, Arizona; CLARENCE HAMMERBACKER, Clerk of the City of Glendale, Maricopa County, Arizona; and J. W. NOEL, City Marshal of the City of Glendale, Maricopa County, Arizona, Appellants, v. WM. B. BETTY, Appellee
• Court: Arizona Supreme Court

43 P.2d 206

45 Ariz. 327

THE CITY OF GLENDALE, a Municipal Corporation; FRANK CARDEN, C. M. HARPER, JOE WHITNEY, JASPER LYNCH, O. O. MOBLEY, H. T. SWISHER, and J. E. SMITH, Members of the Common Council of the City of Glendale, Maricopa County, Arizona; CLARENCE HAMMERBACKER, Clerk of the City of Glendale, Maricopa County, Arizona; and J. W. NOEL, City Marshal of the City of Glendale, Maricopa County, Arizona, Appellants, v. WM. B. BETTY, Appellee

Civil No. 3605

Supreme Court of Arizona

April 8, 1935

APPEAL from a judgment of the Superior Court of the County of Maricopa. G. A. Rodgers, Judge. Judgment reversed and cause remanded, with directions.

Mr. C A. McKee and Messrs. Frazier & Perry, for Appellants.

Mr George D. Locke and Messrs. Cox & Moore, for Appellee.

OPINION

ROSS, J.

The plaintiff Wm. B. Betty, as the owner and operator of the Ever Ready Drug Company, located and doing a drug business in the city of Glendale, Maricopa county, brought this suit against the city of Glendale, the mayor and common council, city clerk and city marshal to enjoin them from enforcing Ordinance No. 15, New Series, of said city, dated July 21 1931, imposing a graduated license tax upon his business, contending that said ordinance is unconstitutional in several respects.

It is averred in the complaint that the defendants have caused criminal charges to be lodged against plaintiff, and the owners of other businesses located in Glendale, for the nonpayment of said taxes and have caused warrants to be issued for their arrest and placed in the hands of the city marshal. It is also alleged that unless the defendants are restrained they will issue, or cause to be issued, executions against the plaintiff for said tax and that they will file civil suits against the plaintiff and others in his situation, which will result in a multiplicity of actions and cause plaintiff and others similarly situated irreparable damage. It is alleged that the ordinance (1) contravenes article 9, section 3, of the Constitution, in that it fails to state the object of the tax; (2) that it contravenes article 9, section 9, of the Constitution, in that it fails to state the tax sought to be collected and the objects for which it shall be applied when collected; (3) that it contravenes article 9, section 6, of the Constitution, in that it seeks to tax businesses and occupations, no authority having been conferred on said city by the laws of the state or the Constitution so to do; (4) that it contravenes the Constitution and laws of the state, in that it purports to be a license tax levied under the police power for purposes of regulation, whereas the tax is disproportionate to the cost of service rendered; (5) that it is unconstitutional and void, in that the tax laid is for revenue and not for regulation; (6) that it is unconstitutional and void, in that its classification for taxes is arbitrary, discriminatory and unreasonable; (7) that it imposes double taxation on plaintiff's property; (8) that it is unconstitutional and void, in that its title does not express its subject, as provided in article 4, part 2, section 13, of the Constitution.

The defendants demurred to the complaint on the ground that it fails to state facts sufficient to constitute a cause for equitable relief. This demurrer was overruled, and the defendants electing to stand thereon judgment was entered against them enjoining and restraining them from enforcing, or attempting to enforce, the collection of said taxes, or from in any way interfering with the business of the plaintiff or of others similarly situated.

The defendants prosecute this appeal from the judgment and insist that the complaint does not state facts entitling plaintiff to the relief prayed or any relief, but that on the contrary the complaint shows upon its fact that the plaintiff has an adequate remedy at law.

The defendants insist that the plaintiff has an adequate remedy at law, and this is the first point that we will consider. In City of Bisbee v. Arizona Insurance Agency et al., 14 Ariz. 313, 127 P. 722, a proceeding to restrain the city and its marshal from enforcing the terms of an ordinance of said city requiring fire insurance agents to pay a quarterly license before transacting any business, and prescribing penalties for its violation, we held that under the peculiar facts of that case the equitable remedy of injunction was not available for the reason that the threatened criminal prosecution alone was not sufficient ground for equitable interference. Therein it appeared that the appellees had no investment in the insurance business that might be ruined or depreciated; that any loss they might sustain would be purely speculative; in other words, that their property loss could at most not be very much. We also said that the rule laid down in that case was not an unbending one that equity would interfere in proper cases.

The general rule is that "an injunction will not be issued against the enforcement of an ordinance merely because it is illegal or unconstitutional, unless further circumstances are shown which bring the case within some clear ground of equity jurisdiction." 14 R.C.L. 439, § 141. The rule as to when injunction will issue is stated in 32 Corpus Juris 264, section 415, as follows:

"A municipality and its officials will be enjoined from acting under and enforcing a void ordinance, when the proposed enforcement will deprive complainant of his property or property rights and will cause him injury for which he cannot obtain adequate redress in a court of law; or where the illegal action will give rise to a multiplicity of actions at law if it is not prevented...."

Where the allegations of the complaint are, in substance, that plaintiff and persons similarly situated are threatened with being criminally prosecuted, and also threatened with civil actions and with execution levies upon their property, under an ordinance null and void as in conflict with the Constitution of the state, the jurisdiction to issue the writ "rests upon the fundamental and well-established equitable doctrine that private personal and property rights will be protected by injunction from threatened irreparable unlawful injury. The injunction against the institution of criminal proceedings is simply incidental to that main ground of equitable jurisdiction. Where the facts are such as to call for the exercise of the powers of a court of chancery according to its established principles, the mere fact that, in order to grant the remedy afforded by equity, it may be necessary as a subsidiary step to enjoin the institution of criminal proceeding or even the commission of a crime, is no bar to the jurisdiction of equity. That this is the underlying principle is manifest not only from an examination of the cases above cited, but of most other cases where the injunction has been granted or jurisdiction assumed." Shuman v. Cilbert, 229 Mass. 225, 118 N.E. 254, Ann. Cas. 1918E 793, L.R.A. 1918C 135.

It would seem under the authorities that the facts alleged are sufficient to confer jurisdiction upon the court to issue the writ of injunction.

It remains to determine whether the ordinance is, for any of the reasons set forth in the complaint, invalid. We state the nature of the ordinance and its general purpose. In section 1 thereof it is provided that every person or corporation or partnership engaged in a long list of businesses, trades professions and pursuits shall, before doing business in the city of Glendale, pay to the city clerk a tax or license according to a schedule set forth in section 2 thereof. Plaintiff's business, that of a drug-store keeper, is classified with commission merchants, grocery keepers, butcher-shops, dry-goods merchants, show merchants, hardware merchants, dealers in lumber, coal or wood, general merchandise, automobile service stations and bakers. And those falling in this class are required to pay a quarterly tax, based upon the aggregate volume of sales, as follows: $6 where the aggregate volume of sales is less than $1,500 per quarter; $8 where more than $1,500 and less than $5,000; $10 where more than $5,000 and less than $10,000; $12.50 where more than $10,000 and less...