C. M. MARTIN, Appellant,
THAD MOORE, D. C. O'NEIL and JOE HUNT, succeeding Warren Peterson, as members of the TAX COMMISSION OF THE STATE OF ARIZONA, Appellees
APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Chapter 16, Laws of 1943, declared unconstitutional by this opinion.
Messrs. Langmade & Langmade, for Appellant.
Mr. Joe Conway, Attorney General, and Mr. Earl Anderson, Chief Assistant Attorney General, for Appellees.
[61 Ariz. 93] HALL, Superior Judge.
The plaintiff, C. M. Martin, a wholesaler of supplies and merchandise at Phoenix, Arizona, on May 28, 1942, commenced his action for declaratory relief against the members of the State Tax Commission, alleging that a controversy existed between him and the tax commissioners as to the correct construction of certain provisions of the Excise Revenue Act of 1935, as amended by Chapter 2, First Special Session, Laws of 1937 (sections 73-1301 to 73-1334, Arizona Code 1939), and asking that the court determine such controversy.
Thereafter issues were formed upon which the court heard the parties and, on January 18, 1943, rendered judgment. The portion of the judgment involved in this proceeding reads as follows:
"Sales by wholesalers, retailers, dealers, or others, to persons, firms, corporations, or others, licensed to do business under the Excise Revenue Act of 1935, as amended, to contractors, licensed and doing business under the Excise Revenue Act, as amended, are taxable as a retail sale to a consumer, regardless of whether the goods, supplies, merchandise and equipment, or articles sold are shovels, hammers, squares, etc., or cement, lumber, or building material fabricated into the construction by the contractor."
The Legislature was in session when the above judgment was rendered, and on March 1, 1943, there was enacted over the Governor's veto the following legislation (being Chapter 16, Laws of 1943):
RELATING TO THE EXCISE REVENUE ACT, AND PROHIBITING THE COLLECTION OF SALES TAX ON CERTAIN MATERIALS SOLD TO CONTRACTORS, AND DECLARING AN EMERGENCY.
Be it Enacted by the Legislature of the State of Arizona:
[61 Ariz. 94] Section 1. Tax on Materials Prohibited. No excise or sales tax shall be collected on materials heretofore or hereafter sold to a contractor and by him incorporated into work constructed by him under contract,
and on which he has paid a tax under the excise ...