Antlers Athletic Ass'n v. Hartung

• Decision Date: 31 December 1928
• Docket Number: 11969.
• Citation: 274 P. 831,85 Colo. 125
• Parties: ANTLERS ATHLETIC ASS'N v. HARTUNG et al.
• Court: Colorado Supreme Court

274 P. 831

85 Colo. 125

ANTLERS ATHLETIC ASS'N v. HARTUNG et al.

No. 11969.

Supreme Court of Colorado, En Banc.

December 31, 1928

Rehearing Denied Feb. 4, 1929.

Error to District Court, City and County of Denver; Julian H Moore, Judge.

Action by the Antlers Athletic Association against Gus Hartung and others, members of the State Boxing Commission and others. Judgment for defendants, and plaintiff brings error.

Affirmed.

Charles Ginsberg and Harold G. King, both of Denver, for plaintiff in error.

Wm. L Boatright, Atty. Gen., John C. Vivian, Asst. Atty. Gen., and Morton M. David and James J. Roach, both of Denver, for defendants in error.

CAMPBELL J.

This is an action by the Antlers Athletic Association, a corporation organized under the laws of the state of Colorado, against Gus Hartung, Norton Montgomery, and Walter F. O'Brien, as members of the state boxing commission of Colorado, and the American Legion, Department of Colorado, a corporation. The avowed object of the action is to have a determination of the constitutionality of certain sections of chapter 70, Session Laws 1927, p. 227, entitled: 'An Act relating to boxing and sparring matches, creating and establishing a State Boxing Commission.' The plaintiff private corporation was not organized for profit to itself, or to its members, but for giving public boxing exhibitions in the city of Denver the net proceeds of which are to be devoted exclusively to charity, and paid into the charity fund of the Denver Lodge of Benevolent and Protective Order of Elks and by the latter expended for charitable purposes, including aid to the poor and sick and to dependent children. The defendant commission, by the provisions of the Boxing Act, is given sole supervisory power, direction and management and control over boxing exhibitions in the state. The statute provides at length and specifically for the regulation, control, and licensing by the commission of such exhibitions and those who participate therein. At least two members of the defendant commission shall be honorably discharged soldiers, sailors, or marines of the United States. By section 7 a tax of 5 per cent. of the gross receipts derived from such exhibitions is imposed, and those to whom authority is given to hold such exhibitions are required by section 3 to have a lease of at least one year of, or to own, the premises wherein such exhibitions are conducted. To this requirement there is a qualification that the Grand Army of the Republic, United Spanish War Veterans, the Veterans of the Foreign Wars of the United States, the American Legion, and the Disabled American Veterans of the World War, are exempted or excused from payment of the 5 per cent. tax and from a compliance with the one year's lease, or ownership, provision. The license fee exacted of those not within the exempted class mentioned varies in the different communities where the exhibitions are held, based upon their population. By section 14, the proceeds of this tax, imposed on citizens and corporations generally to whom licenses are issued authorizing the giving of such exhibitions, above the sum of $7,500, which is allowed for the expenses of the commission, are to be appropriated and used under regulation of the General Assembly to maintain the State's Soldiers' and Sailors' Home at Monte Vista, Colo.

The specific prayer of the complaint setting out the foregoing facts is for both a temporary and permanent injunction enjoining the defendants, as the state boxing commission from collecting or attempting to collect the 5 per cent. tax or license fee imposed by section 7 of the act, and from inflicting upon plaintiff any of the penalties provided by the act for failure to pay the same. Further relief is asked exempting the plaintiff from holding its contests only upon premises upon which it has a lease for a year, or which are owned by it, and from imposing the penalties provided in the act for its failure to comply therewith. These provisions attacked plaintiff asks the court to declare to be unconstitutional and void for various reasons, and particularly on the ground that the same are in contravention of section 1 of the Fourteenth Amendment to the Constitution of the United States, in that the classification made by the Legislature, putting ex-service men or ex-service men's organizations in one class, and all other individuals and organizations in another, for the purpose of taxation, so as to exempt the former and assess the latter, is discriminating. Such other provisions of our boxing statute as may be pertinent to our discussion will be noted in the opinion.

The plaintiff in its argument assumes that the tax or license fee imposed by this act is a tax on property or, at least, a tax or license fee upon a business or an occupation which it has a constitutional right to conduct without the consent of the state. Whether the fee imposed is a tax, in the ordinary menaing of the term, or is merely a license fee for the privilege of conducting a business, we think is not material. Whatever it be denominated, it is an exaction by the state of one who conducts a boxing exhibition for the privilege of doing so. If the business or occupation of conducting public boxing exhibitions or prize fights is legitimate--i. e., if the one engaging in it has a constitutional right to do so, without permission of the state, or in disregard of its inhibition--then the exaction, whatever name the lawmaking body gives to it, must not be so excessive or onerous as practically to prevent conduct of the business at a reasonable profit, and no discrimination as between citizens and corporations may be made. But, if the business is one which may not be pursued without such permission, or in the absence of such inhibition, then the tax may lawfully be so high or great as practically to prohibit citizens engaging therein. If such a business is permissible only when the state so authorizes, or does not put an embargo thereon, and we think this is the unquestioned law, then the license provided for in this act may not be held void on the ground that it is excessive or discriminatory.

'A license confers the right to do that which without the license would be unlawful.' People v. Raims 20 Colo. 489, 39 P. 341. In 37 C.J. p. 183, § 29, it is said that, although under a general power to license or regulate or tax occupations and privileges a useful occupation or privilege may not be directly or indirectly entirely prohibited, nevertheless, 'as to those occupations which, while they are tolerated, are recognized as being hurtful to public morals, productive of disorder, or injurious to the public, license fees or taxes may be so imposed as to discourage and even break them up.' See, also, Montgomery v. Kelly, 142 Ala. 552, 38 So 67, 70 L.R.A. 209. And in 37 C.J. p. 187, § 37, the author says that, as...