STATE ex rel. LANE, Superintendent of Motor Vehicle Division of Arizona State Highway Department
SUPERIOR COURT IN AND FOR MARICOPA COUNTY et al
Alternative writ made peremptory.
Fred O. Wilson, Atty. Gen., Phil J. Munch and Earl Anderson, Asst. Atty. Gen., of Phoenix, for petitioner.
Frank W. Beer and Hess Seaman, of Phoenix, for respondent.
De Concini, Justice. Udall, C. J., and Stanford, Phelps and La Prade, JJ., concur.
De Concini, Justice.
[72 Ariz. 389] This is an original proceeding for a writ of prohibition brought by petitioner C. L. Lane as Superintendent of the Motor Vehicle Division of the Arizona State Highway Department against respondent, the Honorable Fred C. Struckmeyer, Jr., Judge of the Superior Court of Maricopa County. Petitioner served on five alleged motor carriers, hereinafter referred to as "carriers", Reid Smith, A. G. Weaver, Ernest Garrison, W. L. Wahl, and Max W. Bronson, a "Notice to appear and be heard in the matter of the assessment of motor carrier tax" pursuant to sections 66-518 and 66-520, A.C.A. 1939, tentatively assessing to each "carrier" certain sums allegedly due the State of Arizona under those sections together with the penalties thereon. Section 66-518, supra, provides in part: "66.518. License tax -- Determining gross receipts. -- In addition to all other taxes and fees every common motor carrier of property and every contract motor carrier of property shall pay to the state, on or before the fifteenth day of each month, a license tax of two and one-half (2 1/2) per cent of the gross receipts from his operations within this state for the next preceding calendar month, as such carrier, * * *." Section 66-520, supra, provides for a twenty-five per cent penalty to be added to any tax not paid on or before the day prescribed for the payment thereof, and further: "* * * * Upon the failure of any motor carrier to pay said license tax, the superintendent shall inform himself as best he may, and fix the amount of such license tax due the state from such motor carrier for such calendar month, and such tax, so fixed by him shall be the tax due to the state from such motor
carrier; * * *." The notice complied with the statute in that it set a date some three weeks in advance at which time the alleged carriers could appear before the superintendent should they wish to be heard in the matter of such assessment.
Before the date set for the hearing, the "carriers" filed a suit in the superior court of Maricopa county seeking a writ of prohibition against petitioner herein, to enjoin him from proceeding with said hearing. Petitioner answered and alleged that respondent did not have jurisdiction over the subject matter of the action. Respondent, the trial judge below, overruled the plea to the jurisdiction, issued an alternative [72 Ariz. 390] writ of prohibition against petitioner's proceeding with the hearing, and announced that he would try the cause on the merits of the issues presented by the pleadings. Petitioner now seeks to have this court prohibit respondent from trying the case on its merits.
It is the contention of the petitioner that under the laws of this jurisdiction and particularly under section 66-520, supra, the carriers are precluded from testing the validity of petitioner's proposed assessment against them by the method which they have employed. The pertinent portion of sec. 66-520, supra, provides: "* * * No motor carrier upon whom a tax is imposed under the provisions of this act shall be permitted to test the validity thereof, either as plaintiff or defendant, unless such tax, together with all penalties thereon, shall have first been paid to the superintendent. No injunction shall issue from any court against the superintendent to prevent or enjoin the collection of such license tax. After payment, an action may be maintained to recover any tax illegally collected. * * *" The writ of prohibition issued by respondent is in the nature of an injunction and, therefore, petitioner claims that it violates sec. 66-520, supra. On the other hand the "carriers" contend they were not contract carriers subject to tax but that they were mere lessors of the trucks in question, and that section 66-520, supra, has no application to them. Whether the "carriers" were common or contract carriers and thus taxable under the statute is the question to be determined in the last analysis; however, this court is not now faced with that question. The issue to be resolved here is the jurisdiction of the respondent court in prohibiting petitioner from proceeding under the statute. If respondent is without such requisite jurisdiction then prohibition will lie against it. Counsel for respondent set up four points for our consideration, however, we deem it unnecessary to consider all of them as a determination of the issue as heretofore set out will effect a complete disposition of the case.
Respondent claims that it is within the jurisdiction of the superior court to judicially determine whether said "carriers" were or were not common or contract carriers and thus subject to the tax. Taking this statement out of context, it might well be true, for it seems almost obvious that such would be a proper subject for judicial determination by any court. Under the facts of the instant case, however, respondent's claim is groundless. We are here faced with a question of jurisdiction not in general, but under special statutes. Not only section 66-520, supra, governs, but also section 73-841, A.C.A. 1939. That section is part of our tax code and provides: "73-841. Contest of taxes -- Injunction -- Recovery and refunds. No person upon whom a tax has been imposed under any law relating to taxation shall [72 Ariz. 391] be permitted to test the validity thereof, either as plaintiff or defendant, unless such tax shall first have been paid to the proper county treasurer, together with all penalties thereon. No injunction shall ever issue in any action or proceeding in any court against this state, or against any county, municipality, or officer thereof, to prevent or enjoin the collection of any tax levied. After payment an action may be maintained to recover any tax illegally collected and if the tax due shall be determined to be less than the amount paid, the excess shall be refunded in the manner hereinbefore provided."
Those sections clearly indicate the well-established policy of this state to prevent the validity ...