Denver City Ry. Co. v. City of Denver

• Decision Date: 01 July 1895
• Citation: 21 Colo. 350,41 P. 826
• Parties: DENVER CITY RY. CO. v. CITY OF DENVER. [1]
• Court: Colorado Supreme Court

41 P. 826

21 Colo. 350

DENVER CITY RY. CO. v. CITY OF DENVER. ^[1]

Supreme Court of Colorado

July 1, 1895

Error to court of appeals.

Action by the Denver City Railway Company against the city of Denver and its officers to restrain the latter from prosecuting actions instituted by them against plaintiff to recover penalties provided by ordinance for the operation of street cars without a license. To a judgment dissolving a temporary injunction dismissing the action, both parties prosecuted writs of error from the court of appeals. 2 Colo.App. 34, 30 P. 1048. From the decision therein both parties against bring error. Affirmed.

Wolcott & Vaile and H. F. May, for plaintiff.

F. A Williams, G. W. Whitford, and A. B. Seaman, for defendant.

GODDARD J.

On the 3d day of October, 1889, the Denver City Railway Company instituted this action to restrain the city of Denver and its officers from prosecuting cases against it and its employés for operating its horse cars in violation of a certain ordinance of the city, adopted in 1886 and amended in 1888 which provides, inter alia, as follows:

'Section 1. It shall be unlawful for any person or persons to hire out, keep or use for hire, or cause to be kept or used for hire, for the carrying or conveying of persons, or run on established lines within the city limits of the city of Denver, any hackney coach, cab, omnibus, express wagon, herdic coach, street car, vehicle or vehicles, carriage or carriages of any description or name whatsoever, without a license first had and obtained so to do.'

'Sec. 14. There shall be charged and paid to the city treasurer for the use of the city of Denver, on issuing the said licenses, by the parties to whom they may be granted, the following sums: * * * Second. For all omnibuses and accommodation coaches, herdic coaches and street cars running upon established lines and at stated periods, from place to place within the city, shall be charged for license, each, the sum of ten dollars per annum.'

By section 14, as amended in 1888, the license fee for each car was increased from $10 to $25 per annum. The company averred its willingness to pay a fee of $10, as it had theretofore done, but refused to pay the sum of $25, on the ground that the latter is unreasonable, and in excess of the amount necessary to pay the expenses of police regulation, and is in fact a tax upon its property, and hence unlawful and void. The evidence introduced upon the trial of the cause is not preserved by a bill of exceptions, but the court below made the following findings: '(1) That the license for police regulation does not, under the testimony offered, justify a greater license than $17.50 per car, as heretofore found, but that the wording of the city charter gives the city the right to tax, as well as to license, for police regulation, and that the charter of the plaintiff company, approved January 10, 1867, in no way exempts it from paying such tax. (2) That the city council having the power to assess said tax at the sum of $25 per car, and having elected to do so, that the same is legal. (3) That the temporary injunction heretofore issued in this cause should be dissolved, at the cost of the plaintiff.' To the judgment dissolving the temporary injunction and dismissing the action the company and the city prosecuted writs of error from the court of appeals. That court, in an elaborate opinion, reported in 2 Colo.App. 34, 30 P. 1048, reversed the court below upon its finding that the city was empowered to tax, as well as to license for police regulation, but affirmed its judgment of dismissal upon the ground that the record was devoid of any showing that the sum of $25 was an unreasonable charge for police regulation. Both parties, being dissatisfied with this judgment, bring the case here for review. The company insists that the finding of the court below that the testimony offered did not justify a charge of $25 for police regulation is conclusive as to its right to maintain the action, under the doctrine announced by the court of appeals,--that the city is not authorized to assess a license tax. The city, on the contrary, contends that the court of appeals erred in holding that the ordinance could not be upheld as a legitimate exercise of its power to tax the business of running street-railway cars.

In the view we take of these respective contentions, it becomes unnecessary to discuss the validity of the ordinance as a police regulation, or to determine whether, upon the record, the finding of the court below is conclusive upon the fact that $25 exceeds the necessary and legitimate expense of issuing the license and providing police supervision. And in this regard, if the court of appeals was correct in holding that the finding of the court below was not an authoritative finding of fact, based upon the evidence, but the result of personal observation only, and hence not conclusive upon this review, we fully concur in the conclusions reached by the learned writer of that opinion,--that 'this court cannot interpose its opinion, and guess at a cost of administration, nor take the judgment of the court below, as against the judgment of the city council,' and, without sufficient data or evidence, pronounce the ordinance unreasonable as a police regulation.

But upon the more important, and, as we regard it, the decisive question in the case,--'whether the city, under its charter, has the power to tax, as well as to license and regulate, the business of the railway company,--we are unable to concur with either the reasoning or the conclusion of the court of appeals. That taxation is clearly a legislative prerogative, and may be conferred upon a municipality, by that branch of the government, in such measure and for such purpose as it may deem expedient, so long as it observes the limitations and restraints of the organic law, is not questioned or denied. Nor do we understand that the language of the charter of 1885, which, in express terms, confers upon the city of Denver power, 'exclusively, to license, regulate and tax any or all lawful occupations,' etc., is held to be insufficient to authorize the city to impose the tax in question, if such grant of power is not inhibited by our state constitution. But it is asserted that the charter provision, in so far as it attempts to confer the power to tax, is in conflict with section 3, art. 10, which provides: 'All taxes shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax, and shall be levied and collected under general laws, which shall prescribe such regulations as shall secure a just valuation for taxation of all property, real and personal.' In this we think the court of appeals is in error. It seems to be almost universally accepted that this and like constitutional provisions refer to the levy of ad valorem taxes upon property, and do not apply to taxation imposed on privileges and occupations. Sedg. St. & Const. Law (2d Ed.) 504-507, referring to similar provisions contained in the constitutions of various states, says: 'In construing these provisions it has been held, in many of the states, that the words 'equal...