AMOS A. BETTS, LOREN VAUGHN and CHARLES R. HOWE, the Successor in Office of W. D. CLAYPOOL, as Members of and Constituting the Corporation Commission of the State of Arizona, E. M. WHITWORTH, as Superintendent of the Motor Vehicle Division of the Arizona Highway Department, and K. BERRY PETERSON, Attorney General of the State of Arizona, Appellants,
LIGHTNING DELIVERY COMPANY, a Corporation, ARIZONA STORAGE AND DISTRIBUTING COMPANY, a Corporation, CHAMBERS TRANSFER AND STORAGE COMPANY, a Corporation, and All Other Persons and Corporations Similarly Situated, Appellees
APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Reversed and remanded, with directions.
Mr. K. Berry Peterson, Attorney General and Mr. Riney B. Salmon and Mr. Arthur T. La Prade, Assistant Attorneys General, for Appellants.
Messrs. Sloan, McKesson & Scott, for Appellees.
[42 Ariz. 106] ROSS, C. J.
This is the second time this case has come here. The question involved in this appeal is the liability of the Lightning Delivery Company, Arizona Storage and Distributing Company and Chambers Transfer and Storage Company (to which we shall refer as the companies) to pay a license tax of 2 1/2 per cent. of their gross receipts from their operations in this state as common carriers of freight. The companies, contending that they were not for various reasons liable for the tax, brought suit against the members of the corporation commission, the superintendent of motor vehicles, and the Attorney General to enjoin them from proceeding to collect the tax. The defendants in addition to defenses, filed a cross-complaint praying judgment against the companies for past-due license tax.
In the former appeal ( Claypool v. Lightning Delivery Co., 38 Ariz. 262, 299 P. 126) the holding was with the defendants. All of the objections of the companies to the license tax were denied and the case was reversed and remanded "with instructions . . . to proceed to a hearing on defendants' cross-complaints in accordance with the principles laid down in this opinion."
Upon the case reaching the lower court the defendants filed an amended cross-complaint in which it is alleged that the companies had failed to pay their license tax or to file verified monthly statements showing [42 Ariz. 107] the gross receipts of their business over the period from September, 1927, to May, 1931, both inclusive, although they had been furnished with proper and suitable forms for such purpose. It is alleged that because of the failure of the companies to furnish to the superintendent of motor vehicles monthly statements of their gross receipts as common carriers, the superintendent informed himself as to the amount of license tax due the state of Arizona on account of their operations for each of the calendar months as aforesaid, and from such information did fix and determine the amount of the license tax due the state, itemizing it by months. It is also alleged that the cross-complaint was filed by the Attorney General upon the request of the superintendent of motor vehicles.
The companies demurred to the cross-complaint on the ground that the superintendent of motor vehicles had arbitrarily fixed and determined the amount of license tax due without any notice to the companies or opportunity for them to have a hearing thereon, in contravention of the equal protection and due process clauses of the Fourteenth Amendment to the Constitution of the United States. This demurrer was sustained, and, the cross-complainants electing to stand on the cross-complaint, judgment was rendered against them. They have appealed.
The particular statutes providing for the license tax, and the manner and time for its payment, and upon default the procedure to enforce such payment, are sections 1680, 1681, and 1682 of the Revised Code of 1928, reading as follows:
"§ 1680. License tax on operators of commercial vehicles; determining gross receipts.
"Every person owning, operating or managing any motor vehicle used in transportation of persons or property as a common carrier for compensation over any public highway, other than busses used exclusively for the transportation of pupils to or from [42 Ariz. 108] any public school when owned or operated by the school or school district, shall in addition to all other taxes and fees, pay the following license tax: When engaged in transportation of persons, or persons and baggage, or persons and express, or persons, baggage and express, where the same is transported on the same motor vehicle, shall monthly pay a license tax equal to two per cent. of the gross receipts from the operation of such companies within this state; when operating motor vehicles engaged in the business of transporting property shall monthly pay a license tax equal to two and one-half per cent. of the gross receipts from operations of such company within this state; when operating partly within and partly without this state the gross receipts within this state shall be deemed to be all receipts of business beginning and ending within this state, and a proportion, based upon the proportion of the mileage within this state to the entire mileage over which business is done, of receipts on all business passing through, into or out of this state.
"§ 1681. Corporations commission to furnish names of permit holders; monthly ...