State v. Police Court of City of Bozeman
| Decision Date | 15 October 1923 |
| Docket Number | 5377. |
| Citation | 219 P. 810,68 Mont. 435 |
| Parties | STATE EX REL. CITY OF BOZEMAN v. POLICE COURT OF CITY OF BOZEMAN ET AL. |
| Court | Montana Supreme Court |
Original proceedings by the State, on the relation of the City of Bozeman, to annul an order of the Police Court of the City of Bozeman and W. H. Axtell, as Acting Police Magistrate sustaining a demurrer to the complaint in the case of the City of Bozeman against Frank E. Davis and another. Order annulled.
Walter Aitken, of Bozeman, for appellant.
Keeley & Keeley, of Deer Lodge, for respondents.
In August of this year a complaint was lodged with the police court of the city of Bozeman, charging that Frank E. Davis and Albert B. Erickson were carrying on the business of operating auto taxis and auto busses for hire within the city, without first having procured the license therefor required by Ordinance No. 535 of the public ordinances of the city. The police court sustained a general demurrer to the complaint, discharged the accused, and dismissed the proceeding, whereupon the city applied to this court to exercise its power of supervisory control, and annul the order of the police court. An order nisi was issued, and upon the return a motion to quash was interposed, and the cause submitted for final determination.
The complaint filed in the police court states a cause of action if Ordinance 535 is in effect, but the validity of the ordinance is assailed upon numerous grounds, and the most important of these will be considered in order.
1. It is contended that the ordinance is a revenue measure, and for that reason alone cannot be upheld. If the premise is correct, the conclusion follows, for it is now settled beyond further controversy in this state that a city cannot raise revenue for general municipal purposes by the imposition of license taxes. Johnson v. City of Great Falls, 38 Mont. 369, 99 P. 1059, 16 Ann. Cas. 974; Reilly v Hatheway, 46 Mont. 1, 125 P. 417.
The case last mentioned was tried upon its merits, and evidence was introduced from which it appeared conclusively that the ordinance there involved was intended to raise revenue for general city purposes, and was not designed for regulatory purposes under the police power of the city. In the case now before us there is not anything to indicate the character of Ordinance 535 except the terms of the ordinance, and from them alone the validity of the ordinance must be determined so far as this proceeding is concerned.
The ordinance is entitled:
Then follows in alphabetical order an extended list of occupations with the amount of the license fee for each. To illustrate:
"Art stores, $10.00 per year.
Auctioneers. Each firm or individual auctioneer $20.00 per year or $5.00 per day.
Auto taxis for hire. First taxi $25.00 per year; each additional one $12.00 per year.
Auto busses for hire. First bus $25.00 per year; each additional one $15.00 per year," and so on throughout the list.
Section 13 provides:
"It is hereby declared that the industries, pursuits, professions, occupations, businesses, trades and vocations required to procure licenses under this ordinance require special regulation, inspection, control and protection under the general police power of the said city of Bozeman," etc.
The same section provides that all funds collected under the ordinance together with one-half of all fines and penalties collected by the police court, one-third of all building permit fees and one-third of all building inspection fees collected by the city shall be deposited in a special fund to be known as the "Protection of Life and Property Fund," and after defraying the expenses of administration of the ordinance, 7 1/2 per cent. of the fund shall be devoted towards the payment of the expenses of the health department, 2 1/2 per cent. towards paying the expenses of the police court, 50 per cent. towards paying the expenses of the police department, and 40 per cent. towards paying the expenses of the fire department.
While it must be conceded that this court is not bound by the recitals in the title or body of the ordinance, in determining whether the purpose is to raise revenue or enforce reasonable police regulations, there is not anything in this ordinance which tends to contradict the declared purpose of the act. Whether a particular business requires special police inspection, regulation, or control is usually a question of fact, and, since the legislative department of the city government has declared that the industries required to be licensed by Ordinance 535 do call for such special police regulation, the presumption must be indulged, in the absence of any showing to the contrary, that the finding is justified by the facts.
The ordinance is not open to the objection that it does not contain any regulatory provisions--the objection that was sustained to the ordinance considered in Los Angeles v. Lankershim, 160 Cal. 800, 118 P. 215, and to the one involved in Ex parte Tepper (Cal. App.) 212 P. 220.
It is true that the ordinance now under review does not specify in detail the duties of the several officers who may be engaged in carrying its provisions into effect, but it is not necessary that it should do so. It does provide:
And this is further convincing evidence that the ordinance is intended as a police regulation.
A distinction between a license tax and a tax proper or a revenue measure is stated as follows:
"Where the fee is imposed for the purpose of regulation and the statute requires compliance with certain conditions in addition to the payment of the prescribed sum, such sum is a license proper imposed by virtue of the police power; but when it is exacted solely for revenue purposes without any further condition it is a tax." 17 R. C. L. 479.
The general structure of this ordinance, and the particular purposes to which the funds collected under it are devoted, tend strongly to give to it the character of a police regulation; at least it cannot be said from an inspection of the ordinance itself that it is a revenue measure. John Rapp & Son v. Kiel, 159 Cal. 702, 115 P. 651.
2. It is contended further that, if the ordinance be considered as a police regulation it is so unreasonable in the amounts exacted that it is void. It is the general rule that the license fee required by an ordinance designed as a police regulation must not exceed the cost of issuing the license and the additional cost of inspection and supervision. However, this rule is subject to the qualification that the licensing authority is not limited, in fixing the amount of the fee, to the expense of direct regulation alone, but may adjust the fee to cover the cost of all incidental consequences which may reasonably subject the public to expense as a result of the conduct of the business licensed (17 R. C. L. 539). The nature of the business and the necessity, character and extent of the regulations are the dominating elements which determine the reasonableness of the fee to be paid. 3 McQuillin on Municipal Corporations, § 1002; 17 R. C. L. 544.
Cases may arise wherein it is possible for a court to say, as a matter of law, that a given fee is out of all reasonable proportion to the expense of proper police inspection and supervision, as was done in Smith v. Mahoney, 22 Ariz. 432, ...
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