Cache County v. Jensen

• Decision Date: 28 March 1900
• Citation: 21 Utah 207,61 P. 303
• Court: Utah Supreme Court
• Parties: CACHE COUNTY, BY HOPKIN J. MATTHEWS, COUNTY CLERK, RESPONDENT, v. JOSEPH M. JENSEN, APPELLANT

61 P. 303

21 Utah 207

CACHE COUNTY, BY HOPKIN J. MATTHEWS, COUNTY CLERK, RESPONDENT, v. JOSEPH M. JENSEN, APPELLANT

Supreme Court of Utah

March 28, 1900

Appeal from the First District Court, Cache County, Hon. C. H. Hart Judge.

Action by Cache County to recover the sum of $ 600 alleged to be due from defendant under the provisions of a certain ordinance passed by the Board of County Commissioners, imposing a license tax upon all persons, companies, or corporations in the business of raising, grazing, herding, or pasturing sheep within the limits of said county. From a judgment for plaintiff, defendant appealed.

James H. Moyle, Esq., Messrs. Brown & Henderson and D. H. Wells Jr., Esq., for appellant.

This ordinance is excessive in amount. Five cents per head as a tax is far in excess of a reasonable levy on the value as was also heretofore shown.

Courts may determine what is an excessive tax Cooley on Taxation, p 408, and cases cited.

The ordinance is void because it does not compel the county clerk to issue a license, if he is authorized to do so, when an applicant complies with its terms. There is nothing, in fact in the ordinance or law requiring anyone to issue the license. It merely provides that the county clerk shall collect the license fee, but he is not even authorized to issue the license, much less required to do so.

If there is a discretion lodged in the clerk, or other officer, by which he may refuse a license, or if the authority issuing the license is not compelled to issue, to all complying with its terms, then it is void. The clerk not being required to issue the license, it is left open and discretionary, and therefore void. Yick Wo. v. Hopkins, 118 U.S. 356.

The ordinance shows on its face an illegal and unlawful discrimination between owners or possessors of sheep in the county. City v. Levy, 21 Am. Rep. 553; City v. Dudley, 28 Am. St. Rep. 180, 184; State v. Tennant, 28 Am. St. Rep. 715.

A license fee is a tax, within the meaning of the constitutional provision, that taxes shall be uniform upon the same class of subjects, within the territorial limits levying the same. St. Louis v. Spiegel, 90 Mo. 589.

Frank K. Nebeker, Esq., for respondent.

Ordinances similar in all respects to the one before the court have been passed by several of the counties of the State of California, and have been uniformly upheld and their constitutionality sustained by the supreme court of that State. Ex parte Mirande, 73 Cal. 365; 14 P. 888; County of Eldorado v. Meiss, 100 Cal. 268; 34 P. 716; County of Inyo v. Erro, 119 Cal. 119; 51 P. 32.

The next question that presents itself is this: Does Section 3, Article 13 of the constitution apply to the ordinance in question? -- On principle and under the authorities it does not. So much of that section as is pertinent to the present inquiry is as follows:

"The Legislature shall provide by law a uniform and equal rate of assessment and taxation on all property in the State."

This obviously relates to the direct ad valorem tax upon property as distinguished from the specific tax upon business or occupation. Sedg. St. and Const. Law (2d ed.), 504-507; Burrough's Taxation, Sec. 54; Denver City Ry. Co. v. City of Denver, 41 P. 826; City of Newton v. Atchison, 1 P. (Kan.), 288; Walcott v. People, 17 Mich. 68; 1 Desty Taxation, p. 191, Sec. 36; City of San Jose v. San Jose S.C. R. Co., 53 Cal. 475; Ex parte Mirande, 14 P. 888; Marmet v. State, 45 Ohio St. 63; 12 N.E. 463; Com. v. Moore, 25 Grat., 951; American Union Ex. Co. v. City of St. Joseph, 66 Mo. 675; City of St. Louis v. Green, 7 Mo.App. 468; Davis v. Mayor, etc., 64 Ga. 128; Ogden City v. Crossman, 51 P. 985.

Ordinance provides for a license tax upon business, not a tax upon property.

The amount of license is based, for convenience, upon the number of sheep with which a person is doing business. That is to say, the number of sheep is the measure of the size of the business. It can not be argued from that alone that the sheep and not the occupation are taxed. There is no remedy in rem for failing to pay the license as would be the case if the sheep were taxed. A license upon hack drivers in proportion to the number of horses driven is legal. Marmet v. State, supra.

A license upon a merchant based upon the amount of stock carried is good. City of Newton v. Atchison, supra.

Ordinance valid although cities not excluded.

Ordinances are to be construed by the same rules as acts of Legislatures. In re Yick Wo., 9 P. 139.

It is a familiar principle of statutory construction that where part of a statute is unconstitutional and part not, the latter is allowed to stand. Black Constitutional Law, 62; Pressor v. Illinois, 116 U.S. 252; Atty. Gen'l v. Amos, 60 Mich. 372, 27 N.W. 571; Lyman v. Martin, 2 Utah 136; Bank v. Owens, 2 Peters 526; In re Assessment of Taxes, 54 N.W. (Dak.), 818.

Court did not err in overruling motion for non-suit.

A non-suit should not be granted on the grounds of insufficiency of the evidence, where the evidence tends to justify a reasonable and proper inference that the plaintiff may recover. Am. & Eng. Ency. P. R., Vol. VI, p. 947, a mere prima facie case made by plaintiff is all that is necessary. Id., p. 943.

On the question of the presumption in favor of constitutionality we cite: Black Int. of Laws, p. 93; Tonnage Tax Cases, 62 Pa. 286; Kerrigan v. Force, 68 N.Y. 381; Stewart v. Supervisors of Polk Co., 30 Iowa 9.

BARTCH C. J., delivered the opinion of the court. McCARTY, Dist. Judge, concurs. BASKIN, J., dissents. ^[1]

OPINION

BARTCH, C. J.

STATEMENT OF FACTS.

This action was brought to recover of the defendant the sum of $ 600, alleged to be due as a license tax, imposed, by virtue of an ordinance passed and approved May 7, 1898, by the board of county commissioners, upon the defendant because of his business of raising and herding sheep. The ordinance reads as follows:

"The Board of County Commissioners of the County of Cache, ordain as follows:--

SECTION 1. Every person, company, or corporation engaged in the business of raising, grazing, herding or pasturing sheep in the County of Cache, State of Utah must annually procure a license therefor from the County Clerk of Cache County, and make therefor the following payment:--

First. Those owning or having in their possession and under their control five thousand or more sheep constitute the first class and must pay two hundred and fifty dollars per annum for the first five thousand sheep, and for every additional thousand sheep the sum of fifty dollars.

Second. Those owning or having in their possession and under their control four thousand sheep and less than five thousand, constitute the second class and must pay two hundred dollars per annum.

Third. Those owning or having in their possession and under their control three thousand sheep and less than four thousand, constitute the third class and must pay one hundred and fifty dollars per annum.

Fourth. Those owning or having in their possession and under their control two thousand sheep and less than three thousand, constitute the fourth class and must pay one hundred dollars per annum.

Fifth. Those owning or having in their possession and under their control fifteen hundred sheep and less than two thousand, constitute the fifth class and must pay seventy-five dollars per annum.

Sixth. Those owning or having in their possession or under their control one thousand sheep and less than fifteen hundred, constitute the sixth class and must pay fifty dollars per annum.

Seventh. Those owning or having in their possession and under their control less than one thousand sheep constitute the seventh class and must pay five cents per head per annum.

SECTION 2. Every person who shall engage in the business of raising, grazing, herding, or pasturing sheep, or be so engaged within the County of Cache, State of Utah without first obtaining a license therefor, shall be guilty of a misdemeanor.

SECTION 3. It shall be the duty of the county clerk of said county to collect the license provided for by this ordinance, and he may enforce the collection thereof by an ordinary action at law.

SECTION 4. The said clerk shall collect a fee of one dollar for each license issued, which shall be paid by him into the salary fund of said county.

SECTION 5. All moneys collected for license under the provisions of this ordinance shall be paid over to the county treasurer and placed to the credit of the general fund of said county.

SECTION 6. It shall be the duty of the county attorney to prosecute all actions arising under the provisions of this ordinance.

SECTION 7. This ordinance shall take effect and be in force on and after fifteen days from its passage, and all ordinances or parts of ordinances in conflict herewith are hereby repealed."

It was alleged in the complaint that the defendant was engaged in the business referred to in the ordinance, in Cache County, from May 22 to July 20, 1898, without obtaining any license therefor; that during such time and within the county, he was raising and herding 12,500 sheep; and that he refused to comply with the provisions of the ordinance.

At the trial the defendant admitted that during a portion of the time alleged, he had 2,000 sheep in Cache County. The balance of his sheep had been leased to other parties and were grazed in Cache and other counties. There is nothing to show that any police protection or regulation of any kind is required, because of the carrying on of the business in question in Cache County. It was also admitted that the sheep had been regularly assessed for the year 1898, having been valued at $ 1.50 per head, and that the total county taxes amounted to 7 1/4 mills on the dollar.

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