In Re City of Enid

RILEY, J.

(concurring specially). The Oklahoma Tax Commission, on March 27, 1941, assessed the city of Enid for sales tax on gross revenue derived from the sale of tickets and admissions to a swimming pool owned and operated by the city. The years involved are from 1935 to 1940, inclusive. Statutes involved are section 6, art. 7, ch. 66, S.L. 1935, section 5, art. 10, ch. 66, S.L. 1937, and section 5, art. 11, ch. 66, S.L. 1939. Each act levies a tax upon tickets or admissions to places of amusement and each act is made to apply to municipal corporations. Sec. 3, 1935, sec. 4 (a), 1937, sec. 2 (a), 1939.

While the 1935 Act levies a tax upon “sales and or purchases” “sold to or purchased by consumers and/or users” whereas the later acts provide levies only upon “gross proceeds or gross receipts derived from the sale ... to consumers or users,” there is no difference of consequence, notwithstanding that in the 1935 Act the seller was specifically made the agent for collection of the tax. It is obvious that at the time of the transaction the city, as seller, had ample opportunity -for full indemnity “by adding the amount of the tax to the selling price . . . -thus in. effect to collect the tax from the consumer.”: People v. Ventura Refg. Co., 204 Cal. 286 , 268 P. 347 , 283 P. 60 .

The general rule is that municipalities are subject -to the same liabilities as private corporations or individuals except when they are exercising purely governmental functions.

The sales tax is an excise and not a property tax and its imposition is not prohibited by section 6, art. 10,-Consti-tution, providing there shall be exempted from taxation “all property of the United'States and of this state and of counties and of municipalities of this state.” City of Ardmore v. Oklahoma Tax Commission, 168 Okla. 316 , 32 P. 2d 728 ; Board of Commissioners v. Oklahoma Tax Commission, 185 Okla. 625 , 95 P. 2d 605 . In fact, section 12, art. 10, Constitution, empowers the Legislature to provide for the levy and the

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collection of license, gross revenue, excise, income, or other specific taxes, and this provision applies to municipalities engaged in business or other enterprise the same as to private persons or corporations when such municipalities are specifically embraced within the terms of the tax act. City of Phoenix v. State ex rel., 53 Ariz. 28 , 85 P. 2d 56 , 128 A.L.R. 909 . A swimming pool has been held to be within the term of á place of amusement. 3 C.J.S. 1060. Laches are not applicable to the state. State ex rel. King v. Friar, 165 Okla. 145 , 25 P. 2d 620 . The order of the State Tax Commission should be- sustained.