Arizona republican., 1921-05-05
HOLD TAX INVALID ON MIGRATORY FLOCKS
 IF PRESIDENT

In an opinion by the supreme court yesterday in the case of James Smith, appellant, against w. P. Mahoney, sheriff of Mohave county, appellee, the act of the legislature providing for the taxing of migratory .flocks of sheep, as well as goats and hands of l horses and herds of cattle. was held to be invalid; that is, when such stock is the property of non-resi- dents.
 The appellant is a citizen of Utah. He was tried and convicted before a justice of the peace of Mohave coun- l ty of a misdemeanor for a violation of the law without having procured a license to bring the sheep into the state. He was fined $50, and in de- 1 fault of payment was committed to 1 the custody of the sheriff.
 The appellant procured a writ of habeas corpus. but on the hearing, missed the petition It was from that order that the appeal was taken. The appellant attacked the validity i of the license tax as being violative | of the constitution of both the nation and the state, in number of speci- I fled particulars and as being espe- cially offensive to section 1, article TX, of the state constitution. in that the tax provided for was not uni- form and was unequal.
 1 Against this, the state contended that the act is a police measure re- quiring the payment of a license fee by non residents for the privilege of grazing stock within the state of l Arizona.
 After reciting the reluctance with | which courts set aside legislative en- actments, and before doing so re- solve every doubt in favor of the law. several decisions relating to the 1 distinction between tax measures and police measures are cited.
 The court then said: 'It is appar- ent at first blush that the license provided for in this extraordinary act is imposed for the purpose of reve. l, nue and consequently does not fal | within the protection of the police power of the state. It cannot be sait
 with any degree of confidence tha , the primary object of the act is tn, prevention of some offense Or mani
 fest evil. or that it has for it's prf
 mary aim the preservation of tn,
 public health. morals. safety or wei
 fare. It shows on it's face that regu
 lation is not it's purpose. but tha , revenue or undue restriction in tn ! interest of others not emhraced il the class designated is the aim o view
 5 We say this cautiously and with
 
 motives of the legislature in adopt ing the law We are bound to knoy that the license of 25 cents per hea ' for each sheep or goat and 50 cent per head for each head of cattle O . horses grazed or pastured within tn state of Arizona, exacted of ever l. non- resident person. firm, association
 partnership or corporation is far i = excess of the reasonable expense c 5 enforcement of any regulation. Ger : tainly this is the case when such Ii . cense must be paid to the sheriff c = every county in the state where sue T animals are grazed or pastured." In conclusion, the opinion states + We are clearly of the opinion ths . the act involved in this case, an
 under which the appellant was con vieted, is unconstitutional and vol, c and the judgment of the lower coui q is therefore reversed and the appel IT lant is discharged' o This opinion of Justice Baker wa O concurred in by Chief Justice Ros T. and Justice McAlister