APPEAL from a judgment of the Superior Court of the County of Cochise. John Wilson Ross, Judge. Judgment affirmed.
Mr. D. L. Cunningham, for Appellant.
Mr. K. Berry Peterson, Attorney General, Mr. J. R. McDougall, Assistant Attorney General, and Mr. Frank E. Thomas, County Attorney, for the State.
[40 Ariz. 34] McALISTER, C. J.
This is an appeal by Porter Morris, Sr., from a conviction for slaughtering for sale on October 2, 1931, a yearling steer without having first procured from the Live Stock Sanitary Board of Arizona a license to do so.
There is no dispute as to the facts and the only question involved is whether the act requiring those who slaughter animals for sale to procure a license therefor is valid. Chapter 43, Session Laws of 1931, makes this requirement, and the particular portion of it that gives rise to this action is section 30 which, so far as pertinent, is in this language:
"Section 30. Section 2148, Revised Code, 1928, is hereby amended to read as follows:
"Sec. 2148. License, Slaughtering without Prohibited: Penalty. The board may grant an applicant, upon payment of the fees and presentation of proof of good moral character, a license to slaughter neat animals, horses, mules, asses, sheep or goats, as may be set forth in such license. For a license to slaughter not to exceed twenty head of neat animals, horses, mules or asses and not to exceed thirty head of sheep or goats in any one calendar year, the applicant shall pay a license fee of fifteen dollars; for a license to slaughter more than twenty head of neat animals, horses, mules or asses and more than thirty head of sheep or goats in any one calendar year, he shall pay a license fee of eighty dollars. No license shall be issued for a shorter term than from the date of its issuance up to and including the following December thirty-first. For good cause shown, the board may, after a hearing, and after notice to the holder of such license of its intention so to do, revoke any license issued hereunder. It shall be a misdemeanor for any person, other than producers slaughtering under special permit, to slaughter any neat animals, [40 Ariz. 35] horses, mules, asses, sheep or goats for sale, or to offer for sale any portion thereof without first procuring a license. Every peddler or retailer of fresh meat of any neat animals, horses, mules, asses, sheep or goats shall before offering such meat for sale, procure a license therefor from the live stock sanitary board, for which he shall pay an annual license fee of ten dollars, and he shall enter in a book kept by him for that purpose the name and address of each person from whom he purchased or obtained such meat, the date of purchase, quantity purchased, time and place of purchase, and upon the request of any inspector or peace officer he shall exhibit the same to such inspector or peace officer.All licenses issued hereunder shall expire on December thirty-first of the calendar year in which issued. Anyone failing to comply with the provisions of this section shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not less than twenty nor more than one hundred dollars for each offense, or by imprisonment for not less than twenty nor more than one hundred days, or by both such fine and imprisonment."
This, it will be observed, is an amendment of section 2148, Revised Code of 1928, which, before it was changed, divided the slaughtering business into four classes, the basis of classification being the location of the business, and required all who engaged in it to procure a license, the amount thereof varying according to the size of the town in which, or within four miles of which, it was to be carried on. As it appears in the 1928 Code, section 2148 is, in so far as it relates to the slaughtering of animals for sale, the same in meaning as paragraph 3741, Revised Statutes of 1913 (Civil Code) as amended by chapter 77, Session Laws of 1927, which was invalidated in April, 1929, by the decision of this court in Gila Meat Co. v. State, 35 Ariz. 194, 276 P. 1. The holding in that case was based upon the ground that the classification made by the act was unreasonable and the tenth [40 Ariz. 36] legislature, prompted by a desire to enact a slaughtering license law that would overcome this defect, amended paragraph 2148 to read as above stated.
As a basis for the contention that section 30 is invalid, appellant claims, first, that it is an attempt to amend a void law; second, that the subject of the act is not contained within the title; and, third, that it does not operate equally upon all persons similarly situated in that it taxes some persons and exempts others engaged in the same business in violation of section 13, article 2 of the Constitution of Arizona.
Due to the fact that it amends a section of the 1928 Code that had been held unconstitutional, appellant contends, first, that its passage was an attempt to amend something that had no existence and, therefore, that it is ineffective; in other words, that there must exist something upon which to engraft an amendment before this process may take place, and a statute which has been declared null and void is no longer in existence and, hence, incapable of amendment. This view, it is true, finds support in the authorities but the greater weight of authority is that "an amendatory statute will
be upheld, although it purports to amend a statute already amended or which for any reason has been declared invalid." 36 Cyc. 1055; Allison v. Corker,67 N.J.L. 596, 60 L.R.A. 564, 52 A. 362; City of Beatrice v. Masslich, (C.C.A.) 108 F. 743; Southern Pac. Co. v. Bartine, (C.C.A.) 170 F. 725. "The decided weight of authority and the better opinion," says 25 R.C.L. 906, "is that an amendatory statute is not invalid, though it purport to amend ...