*1 50& adopted, this California, we from whence at (Garoutte, seen the same distinction

809), makes

by this court: background, historical

“With had no legislature

appears that the to us compounding authorizing the

intention of every misdemeanor

and dismissal of damage incidental there was some are of private citizen. We

to a intended legislature opinion that in which those misdemeanors

include overlapping an very nature there is their remedy remedy public the civil crime.” prosecution for a

by way of Supp. O’Rear, Cal.App.2d

People v. Cal.Rptr. set aside dismissing information

Order proceedings for further

and cause remanded inconsistent herewith.

not Birdsall, Hall, Hannah, & Trachta Jones, KRUCKER, J., and for J., concur. formerly Kipps, Tucson Gordon S. DeConcini, Tucson Attorney and Dino Atty., by Dwight Eller, Atty., Asst. E. appellee. for Smith, Gen., Gary K. Atty.

Darrell F. Phoenix, Nelson, Gen., Atty. Asst. curiae. amicus zona Board of KRUCKER, Judge. Inc., COMPANY, Contractors The ASHTON Company, the Ashton appellant, Engineers, Appellant, February, below, between 1964, performed two con- January, TUCSON, municipal corporation, OF

CITY projects for the Board of struction Appellee. University of 2No. CA-CIV 425. the work was on All of Appeals of Arizona. Court of being an project one May 1968. utility other, building, and the education Ash- of Tucson assessed tunnel. Rehearing June 1968. Denied $1,184.27 due as a Busi- ton the sum Sept. 17, Review Denied 1968. Privilege Tax as a result ness two of these appellant virtue income completed by the contracts appellant on sought redetermina- Appellant denied, assessment, which was

tion of protest insti- paid the tax under the taxes so gated action to recover protest. under *2 part Navajo the court without on the Arizona

The case was tried to reserva- partial, agreed directly point statement of tion. The jury on a case most with the upon Regents facts and further submitted situation before us is Board of evidence College of the Universities and State Ari- trial. of 299, City Tempe, etc., zona v. of findings of fact and conclu- Extensive P.2d 399 that the In conjunction of sions law were made City Tempe enjoined of was inter- from 9, 1967, with a entered March fering University with the construction against City in favor the of defendant and City program in Tempe requiring the of that Company. the From Ashton building various codes elec- building, and judgment plaintiff appeals. permits trical plumbing and and license before parties that issue agree the Both could, fees before construction com- municipality, the trial court was whether mence. Bernstein held that for.all Justice impose its Business could of purposes, and intents the Regents made and Privilege on contracts Tax classified as a state and campus the fully performed the of only subject the-provisions of the University of Arizona Constitution, and of the enactments question as There no raised was the legislature the of of enact an right of the of Tucson to citing and authorities held: and providing levy the col- ordinance persuasive- authorities foregoing “The Privilege Tax. lection of a Business immunity ly of support the claimed Board trial court found that the Arizona case. Regents in the instant of Board Regents of owns the land and most that underlying rationale is a State lying campus area streets within the main responsibil- agency delegated by law wholly the territorial boundaries of inside ity performing func- of of and police general to the- is not tion Regents side- maintains the and streets municipal corporation.” powers of a by walks owned it. The Board of stated: It is further regulates parking traffic and campus area, University and has is vested “The Board of 'general con- supply own of distribu- with the sources water and our Constitution police supervision’ go tion. and do not duct 2, XI, 1, 5). versity (Article requested University. unless Sections 'jurisdiction By Board has good A deal space in the briefs is de- may university’ and control over voted to the uncontractual contents government ‘[ejnact ordinances for cerning the use jurisdiction’ under its of the institutions - protection, fire collection of refuse 15-724, It also 15-725). (A.R.S. §§ cannot, garbage, like services. see We specific been authorized undertake services, performed by while projects at the universities charge, any bearing without have Chap- college (e. g.: Laws case before In us. Warren Trad- 1952, Chapters 114, 115, 116; Laws ters ing Post Co. v. Arizona State Tax Com- 140; 1949, Chapter Laws mission, amended, Chapter 2).” Laws Supreme (cid:127)And: dealt with an analogous situation revers- City’s is under suggestion “The Post Co. v. sewer, fire duty 95 Ariz. .water or dealing no to furnish P.2d 809 right protection with the services. to Arizona State power levy its claim percent hardly Commission to a tax advances of two on sales Whether corporation over income of a (cid:127) may these services withdraw does a retail Indians with beyond pale raises issues well 'this matter, consideration of' WIL- decision. Nor do we consider of serious LIAM C. FREY was called his to sit in import City’s conjecture that stead and participate in the determination immunity municipal Board’s regu- from of this decision.

lation will fire increase the and health *3 City.”

hazards to of the residents Judge (dissent- Chief of Tucson It is not contended ing) : itself and can existence sovereign misapplied Believing majority has upon the powers based only exercise from Board of rule the State. and statutes of Constitution Ariz. versities, Tempe, Etc. v. 88 that all of work was It is conceded they on which 356 399 university done on the There, rely, respectfully I dissent. physical boundaries of the City sought directly regulate to construc- appellant’s place of business is outside buildings tion and maintenance of on corporate of the limits The court to stand under If such a tax is allowed found that however, circumstances, the tax statutory both had constitutional and by the necessarily passed be would authority regulate to the construction through the Arizona

tractor to the State of campus, buildings maintenance of on the then, The would duly perform- but agency held that state effect, practical placing in be a tax on governmental function is not governmental agency. another general police to the powers of a munici- pal corporation. gets some The fact that

benefits from is immaterial in Here, no such interference with decision of this case. The contention governmental in- agency functions is applicable only the contractor tax is volved. privilege tax is specious; effect, in is it is a direct tax obligation of contractor. University, or, in this Corpora- State Tax Commission v. Garrett ais tion, Ariz. State of Arizona. Exemptions though implied, are not be passed is government. burden on to the judgment We hold that the trial Trading contrary court Post Co. is intent v.

people expressed 387 P.2d State as our reversed grounds other statutes, United States judg- Constitution Supreme Court Post superior County in Warren ment of the Pima court of Commission, Co. v. Arizona is reversed judg- with instructions to enter U.S. 85 S.Ct. ment favor (1965); Co., v. Contracting Dravo James L.Ed. 155 FREY, Superior WILLIAM (1937); Arizona State Tax Commission Judge, concurs. Corporation, Garrett supra. Note: F. MOLLOY hav- JOHN ing requested that he be relieved from affirmed.