98 P. 180 | Utah | 1908
Tbis is an action to recover back certain license taxes paid by tbe appellant to respondent under protest. Tbe controversy arises witb regard to tbe validity of a certain act passed by tbe Legislature in 1907 (Laws 1907, p. 126, c. 307), and now incorporated into the Compiled Laws of Utah of 1907 as sections 456x6 to 456x10, inclusive. Tbe title to tbe act in question reads as follows: “An act requiring all corporations to pay an annual State license; providing for tbe enforcement of same and prescribing a penalty for refusal or failure to comply therewith and making certain exceptions.” Tbe original act is divided into five sections. Section 1 reads as follows:
“All corporations organized under and by virtue of tbe laws of this state or under the laws of the territory of Utah, and all foreign corporations doing business in this state, except as hereinafter provided, are hereby required to pay an annual state license as follows: Ail corporations with, an authorized capital stock of $10,000 or less, $5; with an authorized capital of more than $10,000 and not to exceed $25,000, $10; with an authorized capital of more than $25,000 and not to exceed $50,000, $15; with an authorized capital of more than $50,00.0 and not to exceed $75,000, $20; with an authorized capital of more than $75,000 and not to exceed $100,000, $25; and with an authorized capital of more than $100,000 and not to exceed $150,000, $35; and with an authorized capital of more than $150,000, and not to exceed $200,000, $40; and with an authorized capital of over $200,000, $50. Provided, that all corporations of religious or charitable societies, and corporations organized not for pecuniary profit, and canal and irrigation companies organized for the express purpose of providing water for lands owned solely by the incorporators, and all insurance companies, shall be exempt from said license.”
Section 2 requires tbe license tax to be paid to tbe Secretary of State on or before tbe 15tb day of November of eacb year. Section 3 is not material here. Section 4 prescribes a penalty for tbe failure to pay tbe tax, wbicb subjects tbe defaulting corporation to tbe payment of a penalty of $100, and provides that sucb penalty and taxes shall be a lien upon tbe property of tbe corporation, and,
It is urged by appellant that the court erred in sustaining the demurrer. This contention is based upon the ground that the act in question is unconstitutional, and that therefore the license tax thereby imposed is invalid and nonenforceable, and hence the appellant should have had judgment for the amount paid by it under protest. No question is raised with respect to the sufficiency of the facts alleged in the complaint to entitle appellant to recover if the act in question should be held invalid, nor is there any question presented affecting the respondent’s right to collect the tax if the.act is held to be valid. The sole question therefore, is the validity of the act in question.
The Constitution of this State (article 13, sec. 2), so far as material here, reads as follows:
“All property in tlie 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. The word ‘property,’ as used in this article, is hereby declared to include monies, credits, stocks, franchises, and all matters and things (real, personal and mixed) capable of private ownership.”
Section 3 of the same article requires the Legislature to provide by law for a uniform and equal rate of assessment and taxation “so that every person and corporation shall pay a tax in proportion to the value of his, her, or its property.” Section 12 of the same article reads as follows:
“Nothing in this Constitution shall be construed to prevent the Legislature from -providing a stamp tax or a tax based on income, occupation, license, or franchises.”
]3y a reference to either the text or the title of the act, nothing is discoverable by which the tax in question is in terms stated to be a tax either upon property or upon franchises as such. As an affirmative argument, it is asserted that the mere right to Be a corporation is a franchise, that franchises are by the Constitution declared to be property, and, since the tax is imposed only upon corporations, it must be assumed that the tax is necessarily intended as a tax upon-corporate franchises considered as property. As a negative argument, it is urged that the tax in question cannot be considered as an occupation or business tax because it applies to corporations only, that merely to exist as a corporation is neither an occupation nor a business within the meaning of occupation or license tax laws, that the tax in question is not imposed as a license to regulate any business or calling, that it is not a license by which any privilege or permission is conferred because it confers no right or privilege upon corporations that they did not enjoy before the act was jiassed, and that it permits individuals to pursue the business or calling which is carried on by the taxed corporation without the imposition of this license tax.
Upon tbe other band, there are corporate franchises which clearly are assets of tbe corporation and constitute a part of its property. Tbe right to operate street railways, to lay water mains- through which water is distributed to users in our cities, the right to erect and maintain telephone and telegraph poles and wires in the city streets or on a public road, and by virtue thereof conduct a telephone or telegraph business, or the right to> conduct a toll bridge or ferry across streams, and other like privileges called franchises, are each and all not only valuable, but they are assets of the corporation owning them and constitute a large part of its property. It will be observed that the corporators to whom is granted the franchise to conduct a corporate business enjoy all of the privileges of a corporation first instanced, and may also enjoy the franchise or privilege to conduct a certain business to the exclusion of others under one and the same franchise; but, whether an exclusive privilege is granted or not, the franchise to con
But it is contended that, inasmuch as franchises are declared to be property by the Constitution, this includes all corporate franchises and hence no franchise tax may be imposed except by valuation and assessment and by the regular method of valuation and assessment. We cannot agree with this contention. To our minds it is clear that the Legislature did not intend the license tax imposed by the act in question as a property tax notwithstanding that the Constitution, provides, in the section quoted from, that franchises are property. Nor did the framers of the Constitution, in our opinion, intend to limit the right of the Legislature to impose any other than a property tax by valuation upon franchises by what is said in section 2, art. 13. If such had been the intention of the framers of that instrument, all that was necessary to say was said in section 2 of that article. Why therefore specially refer to franchises again in section 12 of the same article, and there expressly state that the Legislature may impose a license tax upon franchises, if it was intended that no tax other than a direct valuation tax could be imposed upon corporate franchise ? In our view these two provisions are not even conflicting, but, if they were, it would be our duty to bar-
“No corporation, shall lease or alienate any franchise, so as to relieve the franchise or property held thereunder from the liabilities of the lessor, or grantor, lessee or grantee, contracted or incurred in operation, use or enjoyment of such franchise or any of its privileges.”
It is reasonably clear, to us at least, that tbe framers of tbe Constitution in tbis section intended to and did refer only to sucb franchises as were tbe subject of lease or bargain and sale, and not to franchises which merely give tbe right to be or exist as a corporation. As'we bave pointed out, tbe latter right cannot be leased or alienated, or sold as a thing separate from tbe corporation, while tbe franchises mentioned in tbe section last above quoted may be. "While tbe foregoing section may, in itself, shed but a faint light upon the actual meaning intended to be placed upon tbe word “franchises” as used in section 2 of article 13, supra, yet, when it is read in connection with section 12 of tbe same article to which we bave referred, and which certainly does not prevent tbe Legislature from imposing a license tax upon- corporate franchises, then there is little if any room left for doubt that tbe framers of tbe Constitution treated, and intended to treat, corporate franchises as partaking of a dual character, tbe one as property subject to alienation and transfer, and tbe other as a mere right to be or exist as a corporation. That part of a franchise which may be alienated and transferred by tbe corporation while still continuing its existence as sucb clearly falls within section 2 of article 13, supra, and must be assessed and taxed as other property, while, upon the mere right to be or exist as a corporation, a license tax may 'be imposed. No doubt,
In tbe case of Cedar Rapids Water Co. v. Cedar Rapids, 118 Iowa, at page 238, 91 N. W., at page 1083, it is said:
“The term ‘franchise’ is defined in various ways, and its meaning depends more or less upon the connection in which the word is used. Without going into any extended reséarch as to its origin, it may be said that a franchise is a special privilege conferred by governmental authority upon individuals, and which does not belong to individuals generally as a matter of common right. It*379 is also to be regarded as a generic term covering all rights granted to a corporation by legislative act or statute. A corporation (by which is meant an association of individuals into a body lawfully exercising corporate powers) is itself a franchise, and the different powers which may he exercised by the corporation are also franchises. In the first illustration above used, the franchise is the privilege by the individual members to be a corporation and exercise corporate powers; and, in the second, the franchise is the privilege which is granted to the corporation, when organized, to perform certain acts or to carry on certain business.”
Tbe same thought is expressed in different words in the case of Pierce v. Emery, 32 N. H. 484, in which case Mr. Chief Justice Perley, at page 507, uses the following language:
“The word ‘franchise,’ so often used in the act and in the deed, has various significations, both in a legal and popular sense. A corporation is itself a franchise belonging to the members of the corporation; and a corporation, being itself a franchise, may hold other franchises, as rights and franchises of the corporation. A municipal corporation, for instance, may have the franchise of a market, or of a local court; and the different powers of a private corporation, like the right to hold and dispose of property, are its franchises. ... A corporation, being itself a franchise, consists and is made up of its rights and franchises.”
In the case of Marsden Company v. Assessors, 61 N. J. Law, 461, 39 Atl. 638, the question as to whether a certain license tax imposed upon certain corporations was a tax upon corporate property was involved. The corporation asserted that it was, and the assessors contended to the contrary. At page 462 of 61 N. J. Law, and at page 639 of 39 Atl., Mr. Justice Collins, in speaking for the court, adopts and approves the language used by the same court in another similar case reported in Standard Under-Ground Cable Co. v. Attorney-General, 46 N. J. Eq., 270, 19 Atl. 733. The language referred to is as follows:
“The fault of this position is the assumption that this tax is one upon property. Such, manifestly, is not the case. The law in question imposes a tax on certain corporations by way of a license for exercising corporate franchises. It is declared to be such a tax by the act, and, although it is laid on this class of corporations with respect to the capital stock, the tax possesses the legal quality of a license or franchise tax.”
We do not deem it necessary to refer to the other cases that in some form or other invoke the same doctrine. The contention that the case at bar is distinguishable from the eases cited above, upon the ground that the Constitution of this State declares franchises to be property, is not tenable, in view that that instrument in terms recognizes the fact that franchises may and!do' partake of a dual character, as we have pointed out. We have therefore cited the foregoing cases only for the purpose of showing that the framers of our Constitution, in attributing to corporate franchises a dual character, were clearly in harmony with the law1 as it is declared to be by the courts. The act, in our opinion, is valid, and we again repeat, what this court has so often declared, that, when an act or statute is attacked upon the ground that it violates some provision of the Constitution or in some way is repugnant to that instrument, it must clearly appear to be so, or the act or statute must be held valid. This doctrine applies with especial force to a law which sets in motion a sovereign power such as the power of taxation when it is alleged that the Constitution prohibits the exercise of the power. In such a case, unless it is made to appear beyond a reasonable doubt that the sovereign power to impose taxes in a particular way is withheld from the Legislature, the law imposing a particular tax must be upheld.
The case of Western Union Telegraph Co. v. City of Omaha, 73 Neb. 527, 103 N. W. 84, relied upon by appellant, does not in any way impugn the doctidne we are seeking to enforce here. The decision in that case is based upon the theory that the Legislature could not, within the provisions of the Constitution of Nebraska, arbitrarily determine the value of franchises and tax them at the rate
The contention that the act is void, upon the ground that it offends against the uniformity clause of the Constitution, cannot be sustained. Having determined that the tax is not a tax upon property within the purview of the Constitution of this State, it follows that the classification, the amount of the tax, and the manner of collecting it is a matter largely if not entirely within the legislative discretion. With regard to this point the same principle is involved in this case that was involved in the ease of Salt Lake City v. Christensen Company, 95 Pac. 523, ante 38, recently decided by this court, and it is therefore needless to extend the discussion upon this point. In addition to the authorities cited in that case, we refer to the following: Denver City Ry. Co. v. City of Denver, 21 Colo. 350, 41 Pac. 826, 29 L. R. A. 608, 52 Am. St. Rep. 239; Home Ins. Co. v. New York, 134 U. S. 600, 10 Sup. Ct. 593, 33 L. Ed. 1025; 1 Cooley on Taxation (3d Ed.), p. 412.
It is further contended that the act is void for uncertainty, in that it fixes no time at which the duty to pay the tax arises, and because 'the nonpayment thereof does not prevent the corporation from continuing its business, although it may refuse or neglect to pay the tax. As to the first point, it is sufficient to say that the license tax imposed is an annual tax .payable “on or before the 15th day of November of each year.” Any corporation falling within the class- mentioned in the act upon whom the tax is imposed, and which has obtained from the State a franchise
From what has been said, we hold: (1) That the act in question is not clearly repugnant to any constitutional provision; (2) that the tax in question is a mere license tax imposed by the State upon certain corporations for the privilege granted them by it to be and to continue to transact business in this' State as a corporation, and the tax was not intended to be, nor is it, a tax upon franchises as tangible property, and therefore does not offend against the provisions of section 2 of article 13 of the Constitution; (3) that the manner in which the tax is imposed and the amount that each corporation is required to pay, as ascertained and fixed by the act, is not contrary to any constitutional provision; (4) that the period of time for which the payment of the tax entitles the corporation to continue its business without further payment is certain; and (5) that the act is not so uncertain nor unfair in any of its provisions that a court would, for that reason, be authorized to declare it invalid.
The judgment therefore ought to be, and it accordingly is, affirmed, with costs to respondent.