Since I am disagreeing, in the main, with the majority opinion of this court, it is proper I should express my dissent.
I am in accord with the opinion that the equitable doctrine of estoppel is not applicable, since in the collection of the public revenues, the executive officers of the state cannot adopt rules or regulations contrary to law and thereby prevent the state from collecting its revenue due under our statute.
I also agree that the receipts from the sale of merchandise made by merchants within the state but delivered from without the state directly to the purchaser are taxable.
The main issues involved and about which I disagree are the meaning of the words "sale at retail" as referred to in our Excise Revenue Act, and whether a taxpayer may, under that act, invoke the equitable powers of the court to test the validity of the tax imposed by securing an injunction restraining the collection of same. *Page 449
The appellant is engaged in the business of making sales of "tangible personal property" to, among others, contractors licensed as such under the Excise Revenue Act.
The Arizona State Tax Commission found the appellant liable for an unpaid tax under the Excise Revenue Act in the amount of $36,270.03 on its gross receipts for materials sold contractors and the commission demanded payment for the amount, and the appellant, without first paying the tax and protesting and following the procedure provided in the act, petitioned the trial court for a restraining order which was granted against the enforcement of the law.
The trial court, after hearing, held the tax unlawful in part and made the restraining order permanent.
The majority opinion herein states:
"Whether or not a sale to a contractor, under the conditions mentioned, constitutes a sale at retail is a troublesome question, and one upon which the courts are fairly well divided."
The appellant sells plumbing supplies and other articles used by the contractor and fabricated into a building or other construction. If this sale to a contractor is a "sale of retail" within the meaning of the statute, it is taxable, otherwise not. Section 73-1302, Arizona Code Annotated 1939, defines sale as follows:
"`Retail sale' or `sale at retail' means a sale for any purpose other than for resale in the form of tangible personal property, . . ."
Certainly a contractor in making a purchase from the appellant of a bath tub, pipes and plumbing supplies does not acquire such material for "resale in the form of tangible personal property." He acquires those articles to fit in the construction of buildings and not to resell, but as necessary material in performing his work as a contractor. *Page 450
The contractor does not even sell his completed work, nor is he taxed as on a sale.
In the case of Moore v. Pleasant Hasler Const. Co.,51 Ariz. 40, 76 P.2d 225, this court on rehearing held that contractor was not liable on the completed work of his contract as a "sale at retail." He was taxed for the business of contracting, not being engaged in the business of selling.
In the case of Martin v. Moore, 61 Ariz. 92, 143 P.2d 334,335, C.M. Martin, a wholesaler of supplies and merchandise, commenced an action for declaratory relief in the superior court against the members of the tax commission alleging that a controversy existed between him and the tax commission as to the correct construction of certain provisions of the Excise Revenue Act, and asking that the court determine such controversy. The trial court held in main:
"`Sales by wholesalers, retailers, dealers, or others, to persons, firms, corporations, or others, licensed to do business under the Excise Revenue Act of 1935, as amended, to contractors, licensed and doing business under the Excise Revenue Act, as amended, are taxable as a retail sale to a consumer, regardless of whether the goods, supplies, merchandise and equipment, or articles sold are shovels, hammers, squares, etc., or cement, lumber, or building material fabricated into the construction by the contractor.'"
Our legislature was then in session and when the trial court rendered its judgment it enacted, over the governor's veto, Chapter 16 of the Laws of 1943, to the effect that:
". . . No excise or sales tax shall be collected on materials heretofore or hereafter sold to a contractor and by him incorporated into work constructed by him under contract, and on which he has paid a tax under the excise revenue act."
Two paragraphs of the opinion of this court are pertinent: *Page 451
"The question for us to decide is the validity of this legislation. If it is effective, it not only invalidates and sets aside the court's judgment, which both parties hereto admit was correct when rendered, but establishes the law for the future.
. . . . . . . . . .
"The action, after the enactment of Chapter 16, became one in the nature of an action for a declaratory judgment as to whether said chapter is constitutional or not. We think clearly that said chapter is unconstitutional."
As to the other question to which I dissent, our Sec. 73-1318, Arizona Code Annotated 1939, under Excise Revenue Act, says:
"No injunction shall be awarded by any court or judge to restrain the collection of the taxes imposed by this article or to restrain the enforcement of this article."
This ban on injunctions is in addition to an express law under the heading mentioned to prevent interference with our method of deriving revenue for the maintenance of our government.
If every taxpayer resorted to injunctive relief, it could be seen that our government would go without finances while the courts took action. This case was filed in the superior court of Maricopa County September 27, 1943, and is just now being decided in this court.
Notwithstanding the holdings of other states, I am satisfied it is the law of this state that the taxes levied against appellant should be paid and that the hands of the judiciary of Arizona should never be lifted to support an injunction to stay the payment of such taxes to our sovereign state. *Page 452