ALVORD et al.
STATE TAX COMMISSION et al
The alternative writ of prohibition is made permanent.
Scott & Green, of Phoenix, Whitney, Ironside & Whitney, of Phoenix, for petitioners.
Fred O. Wilson, Attorney General, Lorna E. Lockwood, Assistant Attorney General, Edward Jacobson, Assistant Attorney General, for respondents.
Cunningham, Carson, Messinger & Carson, of Phoenix, Gust, Rosenfeld, Divelbess, Robinette & Linton, of Phoenix, Evans, Hull, Kitchel & Jenckes, of Phoenix, Holzworth, Phillips & Jones, of Phoenix, Rawlins, Davis, Christy, Kleinman & Burrus, of Phoenix, Snell, Wilmer, Walsh, Melczer & Beauchamp, of Phoenix, Francis J. Ryley, G. R. Carlock, of Phoenix, Kramer, Morrison, Roche & Perry, of Phoenix, Jennings, Strouss, Salmon & Trask, J. A. Riggins, Jr., Henry S. Stevens, Rex H. Moore, of Phoenix, amici curiae.
Windes, Superior Judge. Udall, Stanford, and Phelps, JJ., and Frank E. Thomas, Superior Court Judge, concurring.
Note: Chief Justice LA PRADE and Justice DE CONCINI having announced their disqualification, Honorable DUDLEY W. WINDES and Honorable FRANK E. THOMAS, Judges of the Superior Court, were called to sit in their stead.
Windes, Superior Judge.
[69 Ariz. 288] By a proceeding initiated directly in this court petitioners, for themselves and all other persons similarly situated, have sought a writ of prohibition to prevent the State Tax Commission of Arizona, from subjecting owners of agricultural lands, dwelling houses and certain other properties from which rentals are now being received [69 Ariz. 289] to the provisions of the "Excise Revenue Act of 1935", as amended, A.C.A.1939, § 73-1301 et seq. Inasmuch as substantial revenue of the state is involved, as well as the legal rights of thousands of potential new taxpayers, we assumed original jurisdiction, issued an alternative writ of prohibition and set the matter down for an early hearing. Oral argument was granted and the issues have now been fully presented not only by the parties litigant, but by distinguished counsel appearing amici curiae.
The Twelfth Legislature passed the Excise Revenue Act of 1935, and by Section 2 thereof, imposed privilege taxes upon various classes of businesses including "hotels, guest houses, dude ranches and resorts, rooming houses, apartment houses, automobile rental services, automobile storage garages, parking lots, tourist camps or any other business or occupation charging storage fees or rents and adjustment and credit bureaus and collection agencies." Subsection (f) 2, Section 2, article 2, Chapter 77, 1935 Session Laws. Forthwith the question arose whether the foregoing provisions
authorized the imposition of a tax upon one renting for mercantile and office purposes. The question was presented to this court and we held that the phrase therein, "any other business or occupation charging storage fees or rents" only embraced businesses of the same kind, class, or nature, and therefore it was not intended to reach the income derived from renting office and mercantile buildings. In arriving at this conclusion the rule of ejusdem generis was invoked. This decision was rendered July, 1935. White v. Moore, 46 Ariz. 48, 46 P.2d 1077, 1080. Two years later the Thirteenth Legislature amended the foregoing quoted portions of the statute by adding the words "office buildings" so that the same now reads: "Hotels, guest houses, dude ranches and resorts, rooming houses, apartment houses, office buildings, automobile rental services, automobile storage garages, parking lots, tourist camps, or any other business or occupation charging storage fees or rents, and adjustment and credit bureaus and collections agencies." (Emp. sup.) Laws 1937, 1st S.S., Ch. 2, Sec. 2, Sec. 73-1303, A.C.A.1939.
From 1937 until the present time the authorities administering the law have construed the amendment as merely designating one additional business, that of "office buildings", as subject to tax. The state now contends that the tax should be imposed upon any and all businesses or occupations charging storage fees or rents. In other words, the state contends that by the addition of the words "office ...