Provo City v. Provo Meat & Packing Co.

• Decision Date: 05 May 1917
• Docket Number: 3016
• Citation: 165 P. 477,49 Utah 528
• Parties: PROVO CITY v. PROVO MEAT & PACKING CO
• Court: Utah Supreme Court

165 P. 477

49 Utah 528

PROVO CITY v. PROVO MEAT & PACKING CO

No. 3016

Supreme Court of Utah

May 5, 1917

Appeal from District Court, Fourth District; Hon. A. B. Morgan Judge.

The Provo Meat & Packing Company was convicted of selling fresh meat without a license, and it appeals.

AFFIRMED.

Jacob Evans for appellant.

Jacob Coleman and J. B. Tucker for respondent.

FRICK C. J. McCARTY and CORFMAN, JJ., concur.

OPINION

FRICK, C. J.

The defendant, a corporation, was charged with carrying on "the business of selling fresh meat at retail and whole-sale" in the City of Provo "without having first taken out and procured the municipal permit and license" required by the ordinance of said city. The defendant was convicted by the city justice of the peace. It appealed to the district court of Utah County where, upon the stipulation of facts hereinafter set forth, it was again convicted, and now presents the record on appeal to this court.

The stipulated facts, omitting the formal parts, in substance, are:

That the City of Provo had theretofore duly passed two ordinances both of which were in force when the action was commenced, copies of which are attached to the stipulation of facts and will be hereinafter referred to; "that the defendant, on the 12th day of April, 1915, and for a long time prior thereto, was engaged in and carrying on business on Academy avenue, a public street of said Provo City; that in conducting said business, the said defendant carried for sale and sold a general stock of merchandising, including fresh meats at retail and wholesale, fish, green groceries, fruits, vegetables, canned goods, cheese, bread, butter, eggs, soda water, and other articles of food, and in connection therewith and as a part thereof said defendant carried for sale and sold hardware and other articles of general household usefulness; that said business was carried on as one general business, in one building, with only one front entrance, and under one general management; that the money derived from the sale of the various articles hereinbefore mentioned was deposited in one general account to the credit of the said defendant, and the said business, although different articles of merchandise were sold, was carried on and conducted as one general business, but said defendant does not slaughter within said city; that the said defendant before carrying on said business, to wit, on March 3, 1915, as aforesaid, procured from the said plaintiff a general merchant's license for the year 1915 under the provisions of that certain ordinance of said Provo City a copy of which is hereto attached and marked 'Exhibit A,' which said license was in full force and effect on the said 12th day of April, A. D. 1915; that said business was being carried on and conducted in the manner aforesaid by the said defendant on the said 12th day of April, 1915, without first procuring a license from said Provo City to sell fresh meat at retail and wholesale as provided in that certain ordinance of Provo City passed on the 25th day of March, 1915, a copy of which is hereto attached and marked 'Exhibit B'; that the said defendant, on said 12th day of April, 1915, and at all times, was ready, able, and willing and offered to pay the plaintiff for a city license either under the provisions of Exhibit A or B, as said Provo City may elect, but said city refused to allow said defendant to carry on his said business in the manner hereinbefore stated, unless the said defendant would take out and pay a city license under the provisions of both of said ordinances, which the defendant refused to do."

One of the ordinances provided for a tax on merchants who carried on business in Provo City. The stocks of merchandise were divided into 22 classes, ranging from $ 200, the lowest, to $ 500,000, and over, the highest. Those merchants who carried a stock of merchandise in excess of $ 500,000 constituted the first class, and were required to pay an annual tax of $ 400. Those who carried a stock in excess of $ 400,000 constituted the second class, and were required to pay an annual tax of $ 350, and so on down to the merchant who carried a stock of $ 200, who was required to pay an annual tax of $ 10. The ordinance was, in all respects, like the one passed on by this court in the case of Salt Lake City v. Christensen Co., 34 Utah 38, 95 P. 523, 17 L. R. A. (N. S.) 898. The ordinance imposing the foregoing tax contained the following provision:

"A merchant is one whose business is to buy and sell merchandise for gain or profit, but a merchant's license shall not include a butcher's or meat market license, nor authorize the licensee to buy or sell meats, other than canned or cured." (Italics ours.)

The ordinance directly in question here, and under which appellant was convicted, so far as material, reads:

"It shall be unlawful for any person, firm or corporation to engage in the business of slaughtering, slaughtering and selling, or selling fresh meat at wholesale or retail within the corporate limits of Provo City, Utah, without first making application for and procuring a permit and license so to do, as herein provided."

The ordinance provides for a license fee of from $ 15, the lowest, to $ 35, the highest. The appellant was required to pay a license fee or tax of $ 35.

We have referred to the foregoing ordinances for the reason that appellant's counsel insists that the City of Provo can require his client to pay a tax under only one of said ordinances, and, in view that it had required it to pay under the merchants' ordinance, the city cannot require payment under the meat dealers' ordinance. We shall refer to this objection again hereinafter.

Our Constitution (article 13, section 12) provides:

"Nothing in this Constitution shall be construed to prevent the Legislature from providing a stamp tax, or a tax based on income, occupation, licenses or franchises."

As pointed out in the case of Salt Lake City v Christensen Co., supra, the merchant's ordinance imposes a tax which is in the nature of an occupation tax rather than a license tax or license fee. The term "occupation tax" is, however, sometimes also applied to a license fee or license tax, and thus some confusion has at times arisen concerning the meaning of the two terms. Properly speaking, a license fee or a license tax comes within and is based upon the police power of the state to regulate or to prohibit a particular business. Such a fee or tax is primarily intended to regulate a particular calling or business, and not to raise revenue, while an occupation tax is primarily intended to raise revenue by that method of taxation. Our statute (Comp. Laws 1907, section 206x86), as amended by Laws Utah 1915, p. 168, confers power upon the cities of this state--"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." In subdivision 38, section 206, supra, after providing for the licensing of various occupations, callings, and businesses, it is also provided that cities shall have the power "to license, tax, and regulate the...