Appeal from Superior Court, Maricopa County; M. T. Phelps, Judge.
Richard Minne, City Atty., and William C. Fields, Asst. City Atty., both of Phoenix, for appellant.
Jerman & Thurman, of Phoenix, for appellee.
Stanford, Chief Justice. LaPrade and Morgan, JJ., concurring.
Stanford, Chief Justice.
[64 Ariz. 320] An action was brought in the superior court by the appellee, hereinafter called the plaintiff, against the appellant, hereinafter called the defendant, to have the court declare defendant's Ordinance No. 2559 unconstitutional and to refund plaintiff the sums collected by defendant under its ordinance.
That part of the ordinance under which the fees were collected is as follows:
"Section 4014. Fees: -- The following license fees shall be paid by the owner, or lessee, or operator, and whether the ownership or operating interest is general or special, to-wit:
"For each auto bus having a seating capacity of seven passengers or less, the sum of $ 15.00 per annum; For each auto bus having a seating capacity of more than seven and not exceeding twelve passengers, the sum of $ 25.00 per annum; For each auto bus having a seating capacity exceeding twelve but not exceeding sixteen passengers, the sum of $ 35.00 per annum; For each auto bus having a seating capacity of more than sixteen passengers, the sum of $ 40.00 per annum, payable in advance."
The trial court rendered its judgment in favor of the plaintiff holding the ordinance unconstitutional and ordering defendant to refund the license fees paid by plaintiff.
Plaintiff at the time in question was operating ten auto busses each having a seating capacity of more than sixteen passengers and they were operating on the public thoroughfare of the City of Phoenix from a public station in said city between Phoenix and Tucson, Arizona, and other [64 Ariz. 321] places, and operated the same under a certificate
of convenience and necessity issued to it by the Arizona Corporation Commission. Plaintiff claims, and the same is undisputed, that it has duly registered all of its motor busses and paid the registration fee required for same, and has also paid to the State of Arizona a license tax of 2 1/4% of gross receipts for the operation of the cars and paid the registered vehicle license tax on each motor bus as required by law.
The following two assignments of error and two propositions of law are submitted by the defendant:
"1. The trial court erred in holding that Ordinance No. 2559 of the City of Phoenix imposing a license fee on auto busses was void and unconstitutional."
"2. The Court erred in holding that Ordinance No. 2559 of the City of Phoenix was void in its entirety if any portion ...