APPEAL from a judgment of the Superior Court of the County of Cochise. John Wilson Ross, Judge. Judgment reversed.
Messrs. Sutter, Gentry & Sutter, for Appellant.
Mr. Joe Conway, Attorney General, Mr. W. E. Polley, Assistant Attorney General, Messrs. Snell & Strouss, of Counsel, and Mr. Frank E. Thomas, County Attorney of Cochise County, for Appellees.
[55 Ariz. 358] LOCKWOOD, J.
Miners & Merchants Bank, a corporation, hereinafter called plaintiff, filed a petition in the superior court of Cochise county for a writ of mandamus against the board of supervisors, tax collector and assessor of that county, hereinafter called defendants, asking that they be required to assess, impose and collect an ad valorem tax for the fiscal year 1939-40 upon motor vehicles in Cochise county. The petition set up in substance the various provisions of the general statutes requiring the assessment and collection of ad valorem taxes on real and personal property, and alleged that defendants have failed to comply with these statutes so far as motor vehicles are concerned, and have declared they intend to continue to refuse to assess or collect any taxes upon any motor vehicles, except the tax provided by chapter 47 of the regular Session Laws of 1939. Plaintiff then [55 Ariz. 359] alleged that said chapter 47, supra, is unconstitutional for many reasons, and prayed for judgment in accord with its petition.
Defendants demurred to the petition on the ground that it did not state a cause of action, and the demurrer being sustained, judgment was rendered in their favor, whereupon this appeal was taken.
The precise question involved is whether by reason of chapter 47, supra, the taxing authorities of Cochise county are relieved of the duty of levying and collecting upon any motor vehicles the general ad valorem property tax applying to all other forms of tangible real and personal property within the jurisdiction of tha taxing unit. If they were so relieved, the court properly rendered judgment in their favor. If, on the other hand, chapter 47, supra, does not have that effect, the demurrer should have been overruled and the writ of mandamus issued.
We, therefore, consider the chapter and its terms. In so doing we should keep before us two principles, (a) the provisions of the Constitution prevail over any legislative action, and (b) what the legislature is prohibited from doing directly it may not do indirectly. State v. Yuma Irr. Dist., ante, p. 178, 99 P.2d 704. As was said by the Supreme Court of the United States in Minnesota Tea Co. v. Helvering, 302 U.S. 609, 613, 58 S.Ct. 393, 395, 82 L.Ed. 474,
"A given result at the end of a straight path is not made a different result because reached by following a devious path."
Chapter 47, supra, is somewhat lengthy, and we think it sufficient to summarize its legal effect rather than to quote it in full. This effect, so far as material to the present case, may be stated as follows: Motor vehicles shall pay a "vehicle privilege license tax" levied [55 Ariz. 360] and assessed in the manner set forth in the chapter. This tax is annual and non-cumulative and is payable only if, as, and when the motor vehicle is registered for operation upon the public highways and is proportioned to the fraction of the registration year remaining thereafter. So long as the vehicle is not so registered, the tax is not due nor payable. In a separate clause the tax described is said to be in lieu of all ad valorem property taxes upon motor vehicles subject thereto, and it is also stated that if any one provision of the chapter be held invalid, such invalidity shall not affect other provisions which can be given effect without the invalid one.
It is very apparent that the legislature, in chapter 47, supra, endeavored to avoid the features of chapter 66 of the regular session of 1937, which we determined in the case of Powell v. Gleason, 50 Ariz. 542, 74 P.2d 47, 114 A.L.R. 838, rendered the last-named chapter unconstitutional. We held the tax levied by chapter 66, supra, to be an ad valorem and not an excise tax, and that as such it violated the constitutional rule in regard to the classification of property for ad valorem taxation, in that the provisions that no ad valorem property tax need be paid until and unless the motor vehicle was registered, and that the amount of the tax was proportioned to the number of months in the calendar year for which the car was used after registration, were arbitrary and capricious in their nature and granted either total or partial exemption from ad valorem property taxation.
It will be noted that chapter 47, supra, states that the tax in question is not an ad valorem tax but a "vehicle privilege license tax," and it therefore falls within the category of an excise tax. It also provides in substance that the tax levied by the ...