This is an action to secure a declaratory judgment as to whether the plaintiff herein is subject to taxation under chapter 77, Laws of 1935, because of the fact that it contracted with the state of Arizona to build two steel bridges on the state highway, known as highway 60, agreeing *Page 333 to furnish all labor and material for a fixed lump sum. Chapter 77, supra, is entitled:
"An Act relating to excise taxation, and to impose a license fee and a privilege tax upon the privilege of engaging in certain occupations and business; and declaring an emergency."
It is evident from the title and also from an examination of the body of the act that the tax referred to therein is not in any sense one on property, but is an excise tax exacted for the privilege of engaging in certain specified occupations and businesses. The first question, therefore, in determining whether a given individual or corporation must pay the tax, is to determine whether he or it is engaged in one of the businesses specified in the act as being subject to taxation. The only business of that class, which it is claimed the plaintiff is engaged in, is described in the act as follows: "1. Selling any tangible personal property whatsoever at retail, except bonds and stock." Article 2, § 2 (d) (1). The primary question for our consideration, therefore, is whether a corporation whose regular occupation, so far as the records show, is confined to erecting permanent structures such as bridges upon a state highway for a lump sum, is "engaging . . . in the following businesses: 1. Selling any tangible personal property whatsoever at retail, except bonds and stock." Article 2, § 2 (d) (1).
It is the general rule of statutory construction that words and phrases used in a statute are to be given their ordinary meaning, and are not to receive a strained or fanciful definition. It seems to me that to call a bridge, which is annexed to a public highway and, therefore, under every rule of law of which I am aware a part of the realty, "tangible personal property" is a self-evident misnomer. I am convinced *Page 334 that if one were to ask the first hundred men he met on the street whether such a structure was "tangible personal property," he would either receive an unhesitating "no" for an answer, or would be asked incredulously as to what the "catch" was in the question.
The argument by which the majority apparently supports the conclusion that the plaintiff is engaged in the business of "selling tangible personal property at retail" is that, since the material which makes up the finished structure for which the state pays a lump sum was at one time personal property, the business of the corporation is the selling of tangible personal property.
No illustration that I can give will show the fallacy of such a construction, if we are to use the words in their ordinary meaning, better than a mere statement of the conclusion reached by the majority. If they are correct in their reasoning, andwill apply such reasoning consistently, then every shoe repairer must pay the tax upon his entire income, unless the customer furnishes the shoe leather and laces for the repaired shoes. Barbers and cosmeticians must refrain, at their peril, from using any form of cosmetics upon their customers. Doctors may no longer use any drugs in the actual treatment of a patient, for drugs are certainly tangible personal property which are, for a consideration, incorporated (at least temporarily) in the body of the patient. Even shoeblacks must require the customer to furnish the paste, for certainly it is tangible personal property which passes into the possession of the customer when the shoes are shined. And the list might be lengthened indefinitely. Of course, I am well aware that the majority will probably decline to apply the rule consistently, and will state that there is a point at which the tangible *Page 335 property sold is so small in value in comparison with the services charged for that the rule of de minimis non curat lex applies, but this will require a careful analysis and separation of the tangible property used in almost every operation from the labor, with no definite criterion of where the line is crossed, except that a man's occupation is determined by the value of the tangible property sold rather than the character of the transaction, so that we will be compelled to return an arbitrary answer in each case which comes before us.
I am aware that there are cases which hold, under very similar circumstances with those of the present one, that a party is engaged in the business of selling tangible personal property, but on a careful reading it will appear that the courts therein have, doubtless unconsciously, fallen into the error of assuming that a mere incident, outside of the principal purpose and course of the business, fixes the character of the business. This, I am satisfied, is because these courts fail to keep constantly before them the fact that the tax imposed is not in any sense one upon the property disposed of or used in the business, but is a license tax for the privilege of doing a certain kind of business. The only connection that the value of the property used has with the tax is in determining, not the liability to taxation, but the amount of the tax — a very different thing.
The legislature, of course, might have made the business of contractor and builder subject to a license tax, but, had it so intended, it would seem that it would have specified that business as it did many other classes of business in addition to retail merchants.
I think that under the circumstances set forth in the complaint plaintiff is not engaged in the business of selling tangible personal property at retail, but in *Page 336 the business of contracting and building, a very different thing, and that it, therefore, is not liable to the tax imposed in chapter 77, supra.