City of Ogden City v. Crossman

• Decision Date: 29 June 1898
• Docket Number: 943
• Citation: 53 P. 985,17 Utah 66
• Court: Utah Supreme Court
• Parties: OGDEN CITY, APPELLANT v. WM. W. CROSSMAN AND ROCKY MOUNTAIN BELL TELEPHONE CO., RESPONDENTS

53 P. 985

17 Utah 66

OGDEN CITY, APPELLANT v. WM. W. CROSSMAN AND ROCKY MOUNTAIN BELL TELEPHONE CO., RESPONDENTS

No. 943

Supreme Court of Utah

June 29, 1898

Appeal from the third district court, Weber county; H. H. Rolapp Judge.

William W. Crossman and the Rocky Mountain Bell Telephone Company were found guilty of violating an ordinance of Ogden City. On appeal to the district court, judgment was rendered for defendants, and the city appeals.

Reversed, with directions.

H. H Henderson, for appellant.

Williams Van Cott & Sutherland, for respondents.

But, even if the ordinance in question cannot be regarded as an interference with interstate commerce, it is still void for the reason that the defendant company is engaged in interstate business, has accepted the provisions of the act of 1866, and the amount of the license is in excess of the reasonable expense necessary for inspection and regulation. City of Philadelphia v. Western Union Telegraph Co., 40 F. 617; Philadelphia v. Western Union Telegraph Co., 82 F. 797.

The license exacted is for revenue purposes, and is for revenue purposes only. It was not imposed in the exercise of the police power of the city. The telephone company had already paid its full proportion of taxes. It could not be compelled to pay an additional tax upon its property under the guise of a license. To do so would be to violate the provisions of the constitution of this state with reference to uniformity of taxation. Peay v. Little Rock, 32 Ark. 31; Chicago v. Larnard, 34 Ill. 203, 277; McBeer v. Chandler (Tenn.), 24 Am. Rep. 308; Wilson v. Chilcott, 21 P. 901.

When the constitution in section 12 uses the word "licenses," it should be construed in the ordinary sense. The power to license is usually a police power. Whenever fees or exactions are imposed for the sole or main purpose of revenue they are in effect taxes. 2 Dill. Mun. Corp. sec. 768; Commissioners v. Dunn, 40 P. 357.

It seems to us clear that none of the provisions authorize the ordinance in question. The general rule is that a license tax cannot be imposed unless expressly authorized. 13 Am. and Eng. Ency. of Law 529; Horr & Bemis Municipal Ordinances, sec. 256; 2 Beach Pub. Corp. sec. 1388, sec. 1252; 1 Beach, sec. 600; Horr & Bemis Municipal Ordinances, sec. 27; 2 Dill. Mun. Corp. (3d Ed.), sec. 764; Parling v. West, 9 Am. Rep. 576; 34 Am. Dec. 638, note.

Lastly, the ordinance is void because it attempts to punish by fine and imprisonment the failure to pay a purely revenue tax. Cooley on Taxation 437; St. Louis v. Green, 7 Mo.App. 468; State v. Green (Neb.), 42 N.W. 913, 73 Pa. St. 453; State v. Bright, 58 Am Rep. 155; Ins. Co. v. Minden, 71 N.W. 995.

MINER, J. ZANE, C. J., and BARTCH, J., concur.

OPINION

MINER, J.:

In June, 1897, defendants were arrested on a warrant issued upon complaint of the city authorities of Ogden City, charging them with a violation of the provisions of the city ordinance requiring a license of $ 5 per annum for each instrument, to be paid by every person or corporation who operated and maintained any telephone instrument in Ogden City for which a rental charge is made, and provided for a punishment by fine not exceeding $ 100, or imprisonment for 100 days, for a violation thereof. Upon trial before a justice of the peace, in July, 1897, the defendants were found guilty, and fined $ 2 each; and in December, 1897, the defendants appealed to the district court. Upon trial before that court, a jury being waived, the court found the defendants not guilty, on the ground that the information did not state facts sufficient to constitute a public offense, and that the ordinance upon which the complaint was filed was void and unconstitutional. Thereupon Ogden City appealed to this court from such judgment.

The respondents now move to dismiss the appeal, upon the grounds (1) that this court has no jurisdiction in the case, or to entertain the appeal on the part of Ogden City from a verdict of not guilty; (2) that no appeal will lie from a verdict of not guilty, rendered by a court or jury, for a violation of a city ordinance. The proper disposition of this motion, and the decision of the court holding the ordinance void, necessarily involve the question arising under section 9 of article 8 of the constitution, that "appeals shall also lie from final judgments of justices of the peace in civil and criminal cases to the district courts on both questions of law and fact, with such limitations and restrictions as shall be provided by law; and the decision of the district courts on such appeals shall be final, except in cases involving the validity or constitutionality of a statute." In this case the district court found the defendants not guilty, because the ordinance under which the complaint was filed was void and unconstitutional. In the case of Eureka City v. Wilson, 15 Utah 53, 48 P. 41, where a similar question was presented, this court held that the effect of this exception in the constitution was to allow an appeal to the supreme court in all cases originating in justices' courts in which the validity or constitutionality of a statute or ordinance is drawn in question, made an issue, and decided by the district court on appeal; that in all other cases brought before justices of the peace, and transferred to the district court by appeal, the final judgments of those courts were conclusive; that, when it appears the constitutionality of a statute was raised in and decided by the district court, then the supreme court has jurisdiction, and must examine the judgment to determine whether or not the statutory question was correctly decided, and, if it was, to affirm the judgment; that if the statutory question was erroneously decided, then this court must further inquire if there was any other matter in issue not affected by the statutory question decided, which was sufficient to sustain the judgment, and, if that was the case, then the judgment should be affirmed, without determining whether the adjudication of such matter or issue was correct; that if it was found that the statutory question was of such force as to render a correct decision thereof necessary to a final adjudication, or that there has been no decision of any other matter or issue not affecting the statutory question, sufficient to sustain the judgment, then this court will reverse the judgment therein, or direct a proper judgment to be rendered, etc. Murdock v. City of Memphis, 87 U.S. 590, 20 Wall. 590, 22 L.Ed. 429. Guided by this rule, we must retain jurisdiction of this case, and determine whether the decision of the trial court, in adjudging the ordinance unconstitutional, was erroneous.

The ordinance in question, so far as it is material, provides: (1) It shall be unlawful for any person or corporation to operate and maintain in Ogden City any telephone instrument, for which a rental or charge is made, without first obtaining a license for each telephone instrument so operated and maintained. (2) Every person or corporation who shall operate and maintain in Ogden City any telephone instrument in section 1 of this ordinance shall pay to Ogden City for each telephone instrument an annual license of $ 5. Section 4 provides that all applications for license under this ordinance shall be made in writing to the city recorder, and any person or corporation violating any of the provisions of this ordinance shall be punished by a fine not exceeding $ 100 or imprisonment for 100 days. Comp. Laws Utah 1888, 331, § 289, authorizes the city council to license, tax, and regulate bankers, agents, expressmen, express companies, telegraphers, photographers, assayers, smelters, crushers, and other like occupations or pursuits. By Id. p. 631, § 89, the legislature has authorized city councils to raise revenue by levying and collecting a license fee or tax on any private corporation or business within the limits of the city, and regulate the same by ordinance. All such license fees and taxes shall be uniform in respect to the class upon which they are imposed. By section 2 of article 13 of the constitution of this state it is provided that all property in the state, not exempt under the laws of the United States, or under this constitution, shall be taxed in proportion to its value, to be ascertained as provided by law. Section 3 of the same article provides that the legislature shall provide by law a uniform and equal rate of assessment and taxation on all property in the state, according to its value in money. Section 5 of the same article provides that the legislature shall not impose taxes for the purpose of county, city, town, or other municipal corporation, but may, by law, vest in the corporate authorities thereof, respectively, the power to assess and collect taxes for all purposes of such corporation. Section 12 of the same article provides that nothing in this constitution shall be construed to prevent the legislature from providing a stamp tax, or tax based on income, occupation, licenses, franchises, or mortgages.

Upon the trial of this case, it was admitted that the defendant the Rocky Mountain Bell Telephone Company was a private corporation, organized under the laws of Utah, with its principal office in Salt Lake City, and with an office in Ogden City; that one Ash had a telephone instrument in his store in Ogden, and that it was placed therein by the defendant corporation; and that, when it is taken out, it will be taken out at the expense of the defendant corporation; that said Ash pays to the company a rental of five dollars per month for the use of such instrument, and that for such payment he has the privilege of using said instrument in talking with persons in Ogden City, but in no other place; that the license fee for...