Giragi v. Moore , 49 Ariz. 74 ( 1937 )

I concur in the conclusion reached by the majority of the court and in the very lucid and logical reasoning followed by Mr. Justice ROSS in reaching the conclusion. I desire, however, to elaborate somewhat on one or two of the points discussed by him.

Counsel for appellant based their motion for rehearing solely on the contention that the statute violates the due process clause of the Fourteenth Amendment to the federal Constitution, and limited their argument in support of such contention almost entirely to the meaning of the opinion of the Supreme Court of the United States in the Grosjean case, supra. There is, of course, no doubt that if our statute violates any of the principles laid down therein it is invalid, for the decision of the court which determined that famous case is binding on every state court when the meaning and effect of the federal Constitution are involved. It is necessary, therefore, that we ascertain just what was really decided in the case referred to.

In determining the general principles of law which are to be deduced from the language used by any court in rendering judgment in a particular case, it is frequently necessary to consider, not only the specific facts on which the particular judgment is legally based, but the general background of the case. This is especially true when that background is of such an extraordinary nature that it materially affects an understanding of the true meaning of the court.

It is a notorious fact that at the time the Grosjean case was decided, a situation existed in the state of Louisiana which was unparalleled in American history. A single individual had obtained a control over the entire executive, legislative, and judicial machinery of that state as absolute as that exercised by any modern European dictatorship. Whether such control met with the real approval of the majority of the citizens of Louisiana or not was immaterial so far as the issues of the Grosjean case were concerned. There was, however, a minority at least in that state, who were bitterly opposed to that dictatorship, and who were endeavoring to call the attention of the citizens to the situation, and urging a return to what they believed to be the spirit as well as the form of democracy. The only practical means which they had of presenting their cause to the people was through the press. The great majority of the larger newspapers of the state were opposed to the existing political set-up, while many, if not most, of the smaller periodicals took an opposite attitude. With this background, the statute involved in the Grosjean case was adopted. It imposed on all newspapers published in the state with a circulation of over 20,000 what was called a license tax for the privilege of doing business, and which amounted to 2 per cent. of the gross income of such papers, leaving untaxed all newspapers with a lesser circulation. The statute was attacked in the federal courts as violating the due process clause of the Fourteenth Amendment. The lower court held it unconstitutional, as being an arbitrary and unjust classification, and the case was brought to the court of last resort. That court did not consider the question of classification, but based its decision on the ground that it abridged the freedom of the press.

It was argued by counsel for appellant that, in effect, the language of the court can only be taken as meaning that no tax which is in form one for the privilege of engaging in business can be imposed on periodicals engaged in the dissemination of public information. On a casual reading of the opinion this conclusion might well be reached, but a more careful analysis convinces me that such is not the case, and that the true meaning of the court may be stated as follows:

"We have no intention of limiting the power of the states to impose any reasonable method of taxation for the purpose of revenue, general in its application, upon newspapers as well as upon all other businesses and occupations, but whenever a law is adopted which affects the press it will be most carefully scrutinized by the courts, and no matter what its form, if its true purpose and probable effect is to impose a previous restraint on the dissemination of information, it will be held void."

I think the following quotations from the opinion show this clearly:

"This court had occasion in Near v. Minnesota, supra,283 U.S. 697, at pages 713 et seq., 51 Sup. Ct. 625, 75 L. Ed. 1357,1366, to discuss at some length the subject in its general aspect. The conclusion there stated is that the object of the constitutional provisions was to prevent previous restraints on publication; and the court was careful not to limit the protection of the right to any particular way of abridging it. Liberty of the press within the meaning of the constitutional provision, it was broadly said (283 U.S. 697, at page 716,51 Sup. Ct. 625, 631, 75 L. Ed. 1357), meant `principally although not exclusively, immunity from previous restraints or (from) censorship.'

"Judge COOLEY has laid down the test to be applied: `The evils to be prevented were not the censorship of the press merely, but any action of the government by means of which it might prevent such free and general discussion of public matters as seems absolutely essential to prepare the people for an intelligent exercise of their rights as citizens.' 2 Cooley's Constitutional Limitations, 8th ed., p. 886.

"It is not intended by anything we have said to suggest that the owners of newspapers are immune from any of the ordinary forms of taxation for support of the government. But this is not an ordinary form of tax, but one single in kind, with a long history of hostile misuse against the freedom of the press. . . .

"The tax here involved is bad not because it takes money from the pockets of the appellees. If that were all, a wholly different question would be presented. It is bad because, in thelight of its history and of its present setting, it is seen to be a deliberate and calculated device in the guise of a tax to limit the circulation of information to which the public is entitled in virtue of the constitutional guaranties." (Italics ours.)

A careful consideration of the Arizona statute "in the light of its history and of its present setting" will convince any unprejudiced observer that it in no manner violates any of the principles so truly set forth in the Grosjean case, except that perhaps it might possibly be claimed the injunctive feature of the act has that effect. But this section is not involved in the present case, is separable from the balance of the act, and can and will, by the express language of section 4 of article 3, be stricken without affecting the remainder of the act, if necessary.