Opinion
No. 5963.
April 6, 1956.
Appeal from the Superior Court, Maricopa County.
William C. Eliot, City Atty., George T. Fike, Fred F. Bockmon, James F. Haythornewhite, Asst. City Attys., Phoenix, for appellants.
Ryley, Carlock Ralston, Lewis, Roca, Scoville Beauchamp, Phoenix, for appellee, Jennings, Strouss, Salmon Trask, Cunningham, Carson, Messinger Carson, McKesson Renaud, James E. Flynn, Samuel C. Jefferies, Phoenix, of counsel.
It has been called to our attention by a motion for rehearing in the above-entitled cause that in the last paragraph of our decision we made the following order [ 80 Ariz. 100, 293 P.2d 441]:
"The judgment of the trial court is reversed and the cause remanded with directions to enter judgment for the City of Phoenix."
An examination of the record discloses that the only question presented to us was:
"Did the City have the power to assess, levy and collect a privilege license tax?"
In other words, did the City of Phoenix have the power, under its Home Rule Charter, to enact Ordinance No. 5121 providing for levying, assessing and collecting an excise tax for revenue measured by gross sales and receipts, thus limiting our consideration to the validity of the ordinance?
We held in the original opinion that the City had the power to enact the ordinance and that it was valid and enforceable. We here reaffirm that holding but instead of directing that judgment be entered for the City, we direct that the judgment be reversed and the cause remanded for a new trial for the purpose of determining the issues of fact raised by the complaint and answer, and it is so ordered.
LA PRADE, C.J., and UDALL and WINDES, JJ., and CHARLES C. BERNSTEIN, Superior Court Judge, concur.
Justice FRED C. STRUCKMEYER, Jr., having disqualified himself, the Honorable CHARLES C. BERNSTEIN, Judge of the Superior Court of Maricopa County, was called to sit in his stead.