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City of Bisbee v. Williams

Supreme Court of Arizona

November 5, 1957

CITY OF BISBEE, a municipal corporation of the State of Arizona, Appellant,
E. T. WILLIAMS, Treasurer of the State of Arizona, Appellee.

[83 Ariz. 142] James F. McMulty, Jr., Bisbee, for appellant.

Robert Morrison, Atty. Gen., and James H. Green, Jr., First Asst. Atty. Gen., for appellee.

CHARLES P. ELMER, Superior Court Judge.

This is an action for declaratory judgment brought by the City of Bisbee, a municipal corporation, through its mayor and common council, as plaintiffs, against the Arizona Tax Commission, the individual members comprising said Commission, and E. T. Williams in his capacity as the then treasurer of the State of Arizona, as defendants.

An interpretation of five or at the most six words found in what is commonly referred to as the Arizona privilege sales tax law was sought by the city. A judgment sustaining the city's viewpoint would have the effect of materially increasing its share of such tax. When the action was commenced, section 73-1322, A.C.A.1939, as amended, 1952 Cum.Supp., was in effect, and the controversial phrase therein was 'the most recent United States census'. In the enactment of the Arizona Revised Statutes of 1956 the legislature, in section 42-1341, substituted the word 'federal' for the words 'United States' thus making the controversial phrase read 'the most recent federal census'.

The city contends that the phrase quoted refers to any census taken under the auspices of the federal government, including but not limiting same to a federal decennial census, whereas the state treasurer contends that 'the most recent federal census' means only a federal decennial census.

Page 568

The case was tried to the court without a jury on an agreed statement of facts. The parties stipulated that the city was polled for purposes of the 1950 federal decennial census when its population was at an extremely low ebb, the mine which is its principal industry being then shut down and the military installation at nearby Fort Huachuca then being almost totally inoperative; since the taking of the 1950 census the mine and smelter have reopened and Fort Huachuca activated as a sizeable military installation, resulting in an increase in population entirely out of proportion to what might be considered a normal growth. It was agreed that if a special census of Bisbee were taken during 1955, when the action was filed, it would show the population of the city had materially[83 Ariz. 143] increased since the last decennial census; that the taking of a special census by the Bureau of the Census, United States Department of Commerce, was authorized by the federal statutes; that the city proposed to cause such a census to be taken by that bureau at the city's expense, and, finally, that the Arizona tax commission and the state treasurer fully comply with the provisions of the privilege sales tax law with respect to the payment of ten percent of such revenues to the various municipalities of the State of Arizona.

Section 73-1322, A.C.A.1939, as amended, 1952 Cum.Supp., contains the following pertinent provisions:

'The state treasurer of the state of Arizona shall pay ten percent (10%) of the privilege tax collected under the Excise Revenue Act of 1935, or any amendment or modification thereof to the various municipalities of the state of Arizona in proportion to their population, as shown by the most recent United States census, to be used by said municipalities for any municipal purpose.' (Emphasis supplied.)

This provision appears in the Arizona Revised Statutes of 1956 as a portion of section 42-1341 and is the same in substance.

As hereinablve indicated, it was and is the contention of the city that the census referred to in the law meant any federal census, either the decennial or the special, authorized by 13 U.S.C.A. § 8 (formerly section 218 this title); that the current census which the city proposed to have made thereunder is the one that should upon certification to him be used by the state treasurer in his payment to the city of its proportionate share of the funds available under said privilege sales tax law. The state treasurer, on the other hand, argues that only the most recent United States decennial census may be used as the basis for the apportionment among the several municipalities of the state; that if it were permissible to take such censuses piecemeal it is apparent that, as a matter of self-interest and self-protection, each and every municipality in the state would be required to cause a federal count of its inhabitants to be made each time another municipality chose to have one made in order to retain its just share of the tax.

The trial court carefully considered the stipulated facts in this case and through presentation of the applicable law, as submitted by the parties, and in a very wellreasoned memorandum opinion concluded the real meaning and purpose of the law is and was that on a given date and time a federal census should be taken of all the participating municipalities and on that basis a proportionate distribution of the funds available should be made. Its judgment therefore was in favor of the state treasurer's contention and against that of the city, and, after the overruling of motion for new trial, this appeal was taken.

[83 Ariz. 144] There is but one assignment of error and that is that the trial court misinterpreted the law and that its judgment, therefore, is contrary to law. We agree.

While the desirability of the utilization by the state treasurer of a fixed base, such as the most recent decennial census, in his allocations to the several ...

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