D. C. O'NEIL, WARREN PETERSON and THAD MOORE, as Individuals and as Members of the State Tax Commission of Arizona; and WILLIAM PETERSEN, as an Individual and as State Treasurer of the State of Arizona, Appellants,
ARIZONA HORSEMEN'S ASSOCIATION, a Corporation, Appellee
APPEAL from a judgment of the Superior Court of the County of Maricopa. Howard C. Speakman, Judge. Judgment reversed and cause remanded with directions.
Mr. Joe Conway, Attorney General, Mr. Earl Anderson, Special Assistant Attorney General, and Mr. W. E. Polley, Assistant Attorney General, for Appellants.
Messrs. Woolf & Shute and Mr. W. T. Elsing, for Appellee.
[57 Ariz. 425] ROSS, J.
The Arizona Horsemen's Association, a nonprofit corporation, in February of 1940, held a one-day horse-racing meet at the state fair grounds and used the pari-mutuel system of determining the results of the different races run on that day. The State Tax Commission demanded of the association 4% of all moneys received by it from pari-mutuel sales, amounting to $2,667.20, which was paid under written protest. The tax commission paid this sum to the state treasurer. Thereafter the association brought this action against the tax commission and the individual members thereof and the state treasurer to recover such sum.
The association was "organized... for the purpose of encouraging interest in horses and other livestock; in promoting the good breeding of animals in Arizona; in conducting livestock shows and in raising money for the furtherance of these objects but not for the purpose of receiving profits."
[57 Ariz. 426] The association did not apply for a permit to hold said meet, which is the only one that it has ever held.
The question presented to the court was whether Chapter 79, Laws of 1935 (sections 73-1601 to 73-1608, Arizona Code 1939), entitled:
"An act relating to horse-racing and dog-racing meets; providing for permits therefor; authorizing the use of parimutuel machines, and providing for the collection of revenue therefrom,"
by its provisions covered the one-day meet of the association and imposed the duty on the association to pay the tax demanded. The trial court held that such chapter did not, and gave the association judgment as prayed for.
The tax commission has appealed, contending that under such law the association should pay the tax. The question involves a construction of Chapter 79, supra.
This chapter authorizes horse- and dog-racing meets but requires "any person, copartnership, association, or corporation" before putting on a meet to apply to and obtain from the tax commission a permit to do so. Sec. 1. This permit may be for
one day or any number of days not greater than thirty. Sec. 2. Section 5 ...