Jackson v. City of Glenwood Springs

• Court: Colorado Supreme Court
• Writing for the Court: JACKSON; HILLIARD
• Citation: Jackson v. City of Glenwood Springs, 221 P.2d 1083, 122 Colo. 323 (Colo. 1950)
• Decision Date: 28 August 1950
• Docket Number: No. 16480,16480
• Parties: JACKSON et al. v. CITY OF GLENWOOD SPRINGS.

Page 1083

221 P.2d 1083

122 Colo. 323

JACKSON et al. v. CITY OF GLENWOOD SPRINGS.

No. 16480.

Supreme Court of Colorado, en Banc.

Aug. 28, 1950.

M. J. Mayes, Glenwood Springs, for plaintiffs in error.

Darrow-Mincer-Petre, Glenwood Springs, for defendant in error.

JACKSON, Justice.

This case involves the validity of an ordinance of the city of Glenwood Springs, the purpose of which is disclosed by the title, 'An Ordinance Concerning Revenue and Imposing an Occupational Tax Upon Business, Professions and Occupations, and to Secure a Proper Distribution of the Burden of Taxes, and Providing Penalties for the Violation Thereof.'

The case arose when plaintiffs in error, who were plaintiffs in the trial court and will hereinafter be so named, filed their complaint attacking the validity of this recently enacted ordinance of the City of Glenwood Springs. Their complaint was dismissed by the trial court, and they here seek reversal of the judgment.

Plaintiffs attack on two grounds: procedural and constitutional.

1. It is claimed the wrong procedure was followed in publishing the ordinance only once 'at least ten days prior to enactment.' It is agreed that the pertinent statute is section 244, chapter 163, '35 C.S.A., which reads: 'No ordinance shall be adopted or passed by any city council of any city, in this state, unless the same had been previously introduced and read at a preceding regular meeting of such city council and published in full in one or two papers of general circulation published in such city at least ten days before its passage, and if there be no such paper or papers published in such city, then by posting copies thereof * * *.'

Counsel for plaintiffs also contends that the following portion of section 6, chapter 130, '35 C.S.A., is pertinent:

'* * * For the purpose of defining and clarifying ambiguities in the various statutes requiring the publication of legal notices and advertisements, but not for the purpose of increasing any period of publication or the number of publications required by any statute, the meaning and intent of any law governing the publication of legal notices and advertisements, except as otherwise expressly provided, is hereby declared to be as follows:

'Where publication for ten days is required, then publication once each week for three successive weeks in any daily, weekly, semi-weekly or tri-weekly newspaper shall be sufficient * * *.'

It is argued that the ordinance should have been published once each week for three successive weeks under the latter section. We do not agree. The term 'publication for ten days' denotes duration. The term 'unless the same has been previously * * * published in full' imports but one occurrence in the running of time. It might otherwise just as plausibly be argued that the ordinance should also be introduced and read several times, for it will be noted that the unless clause applies equally to (1) an introduction and reading of the ordinance and (2) its publication at least ten days before its passage. There is thus evident an intention that neither process should take place more than once.

The remaining specifications 2 to 8, inclusive, all involve the validity of the ordinance and will be discussed separately.

2. It is argued that the ordinance violates section 20, article II, of the Colorado Constitution reading, 'Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishments inflicted.' Section 12 of the ordinance provides that, 'Failure to comply with the terms of this ordinance by payment of taxes, filing a return, and to otherwise comply with the terms of this ordinance shall constitute an offense and a violation thereof. Every person violating this ordinance shall be fined not more than One Hundred dollars ($100.00) for each offense, and delinquency for each calendar month shall constitute a separate offense; but no conviction for such violation shall work a revocation of any license issued to a defendant under the laws of the state of Colorado.'

It is contended that it is 'unreasonable that any business man should be liable for $100 fine just because he failed to file his return or to otherwise comply with the terms of the ordinance, even though the tax was paid.' It further is argued that provision for fines in a municipal ordinance is to secure performance, and that the city in this case has required a fine far in excess of the amount necessary to guarantee enforcement.

We cannot adopt the contention of the plaintiffs, that the fines here imposed are clearly excessive. We believe the amount of the fines provided in this ordinance are within the area of legislative discretion. Cardillo v. People, 26 Colo. 355, 58 P. 678; 36 C.J.S., Fines, § 2, p. 782.

3. It is urged that the ordinance by making any sale--in the furtherance of business--taxable, and by the method of assessing the tax, contravenes the right to acquire property without undue interference and thus violates section 3, article II, of the Colorado Constitution, the pertinent portion of which reads: 'All persons have certain natural, essential and inalienable rights, among which may be reckoned the right of enjoying and defending their lives and liberties; of acquiring, possessing and protecting property; * * *.'

Counsel for plaintiffs relies upon Willison v. Cooke, 54 Colo. 320, 130 P. 828, 44 L.R.A., N.S., 1030. That case, however, involves the refusal to issue a building permit under a city ordinance and there is no question of taxation involved.

Counsel also quotes from Banard & Miller v. Chicago, 316 Ill. 519, 147 N.E. 384, 38 A.L.R. 1534, § 8: 'In the absence of statutory authority, a municipal corporation cannot impose a license fee on factories and workshops for the purpose of raising revenue.' In Colorado, however, the legislature has specifically given municipalities the power of taxation (which had been exercised in this ordinance) by section 89, chapter 163, '35 C.S.A., the pertinent portions of which read:

'The city council in cities of the second class [Glenwood Springs in such a city] and towns, and boards of trustees of towns, shall have the following additional powers, to-wit:

'First--To provide for the appointment of an inspector of buildings and to define his power and duty.

'Second--To license, regulate, and tax, subject to any law of the state now in force, or hereafter to be enacted, any and all lawful occupations, business places, amusements, or places of amusement.'

When, therefore, counsel for plaintiffs argues that there should be a grant by the state legislature of power to the municipal corporation to impose a tax, such as the ordinance provides it is apparent that the legislature in Colorado has specifically granted such power to the city of Glenwood Springs.

4. Counsel for plaintiffs urge very strenously that the ordinance here under consideration violates the due process clause of the XIV amendment to the federal Constitution, and section 25, article II of the Colorado Constitution providing, that 'no person shall be deprived of life, liberty or property, without due process of law.' Reliance is placed upon Williams v. City of Richmond, 177 Va. 477, 14 S.E.2d 287, 292, 134 A.L.R. 833. The ordinance under review in that case imposed a flat license tax of fifty dollars per annum on any person, firm, association, partnership or corporation engaged in any business, occupation or profession not subject to any special license tax. It was held that this violated the due process clause of the XIV Amendment, supra, the court saying: 'Such a tax might result in wrecking the business of the newsboy and the street bootblack, while the burden would be comparatively light on the insurance and railroad executives. * * * It is clear that strict enforcement * * * would be a death blow to certain modest callings.'

The Glenwood Springs ordinance, however, has no catch-all clause similar to that in the Richmond ordinance. Under the Glenwood Springs ordinance the tax is computed on the number of employees in each business or profession: 'the sum of $20.00 for the first owner, partner, manager or employee; plus $6.00 for each additional owner, partner, manager or employee up to 9; plus $1.00 for each employee in excess of 9.'

Section 4 reads: 'An employee is declared to be exempt from the tax imposed by this ordinance.'

Section 5 exempts every person engaged in business and paying a license tax under a licensing ordinance of the City of Glenwood Springs, or operating under a franchise.

Section 3(b) also makes the tax inapplicable to the operation of any business exempt by federal or state law.

We do not believe that the Glenwood Springs ordinance comes under the objection that...