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Garrison v. Luke

Supreme Court of Arizona

May 9, 1938

R. E. GARRISON, H. S. DUNBAR and ERNEST LIRA, Appellants,
v.
FRANK LUKE, D. C. O'NEIL and THAD MOORE, Members of and Constituting the State Tax Commission of the State of Arizona, Appellees

APPEAL from a judgment of the Superior Court of the County of Maricopa. J. C. Niles, Judge. Judgment reversed.

Messrs. O'Sullivan & Morgan, Mr. George M. Hill and Mr. T. G. McKesson, for Appellants.

Mr. Joe Conway, Attorney General, Mr. W. E. Polley and Mr. J. M. Johnson, his Assistants, for Appellees.

OPINION

Page 1121

[52 Ariz. 52] LOCKWOOD, J.

R.E. Garrison, H. S. Dunbar, and Ernest Lira, hereinafter called plaintiffs, brought suit against Frank Luke, D. C. O'Neil, and Thad Moore, as members of the State Tax Commission of Arizona, hereinafter called defendants, to enjoin them from seizing certain property belonging to plaintiffs. The defendants answered, setting up certain reasons why they contended they were justified in making the attempted seizure. Plaintiffs demurred to the answer, and, the demurrers being overruled, stood upon their demurrers, and judgment was rendered in favor of defendants, whereupon this appeal was taken.

The question comes before us on an agreed statement of facts which reads, so far as material, as follows:

"I. That the plaintiffs are the owners and operators of a number of coin operated electric automatic phonograph machines, more particularly described as follows: Each machine is a specially designed electric phonograph machine, so constructed that upon the insertion of a coin or slug into a slot built into the machine and the depression of a button bearing the same number as the particular phonograph record which the player desires to hear, the machine by means of and with the assistance of springs, levers, plungers, electricity and gravity, automatically reproduces the musical selection recorded on the disk so selected. The machines are so constructed that the player has the choice of twelve to twenty different phonograph records on which are recorded musical selections.

"II. That each phonograph, as more particularly described above, owned and operated within the State of Arizona by the plaintiffs, is maintained and placed where such machine is operated for purposes of gain, compensation and profit.

[52 Ariz. 53] "III. That the issues in this case are limited to two questions: First, whether or not Chapter 78, laws of the regular session, 1935, as amended, imposes a privilege license tax upon each phonograph, as more particularly described above, which is to be paid by the plaintiffs as the owners and operators of such phonograph; second, if such act does impose such tax on such machines, to be paid by the plaintiffs, whether or not chapter 78, laws of the regular session, 1935, as amended, is unconstitutional and of no effect, in the particulars set out in the record."

Chapter 78 of the Session Laws of 1935, referred to in the statement of facts, is entitled:

"An Act relating to taxation, and to provide for the raising of additional public revenue for unemployment and welfare relief by imposing a tax on the sale of certain luxuries and by imposing a privilege tax on the privilege of engaging in certain businesses, and declaring an emergency."

It imposes a tax on many different objects. Article 3 of the act is entitled as follows: "Mechanical Games; Privilege ...


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