17 Utah 66 | Utah | 1898
In June, 1897, defendants were arrested on a warrant issued upon complaint of the city authorities of Ogden City, charging them with a violation of the provisions of the city ordinance requiring a license of $5 per annum for each instrument, to be paid by every person or corporation who operated and maintained any telephone instrument in Ogden City for which a rental charge is made, and provided for a punishment by fine not exceeding $100, or imprisonment for 100 days, for a violation thereof. Upon trial before a justice of the peáce, in July, 1897, the defendants were found guilty, and fined $2 each; and in December, 1897, the defendants appealed to the district court. Upon trial before that court, a jury being waived, the court found the defendants not guilty, on the ground that the information did not state facts sufficient to constitute a public offense, and that the ordinance upon which the complaint was filed was void and unconstitutional. Thereupon Ogden City appealed to this court from such judg ment.
The respondents now move to dismiss the appeal, upon the grounds (1) that this court has no jurisdiction in the case, or to entertain the appeal on the part of Ogden City from a verdict of not guilty; (2) that no appeal will He from a verdict of not guilty, rendered by a court or jury, for a violation of a city ordinance. The proper disposition of this motion, and the decision of the court holding the ordi
The ordinance in question, so far as it is material, provides: (1) It shall be unlawful for any person or corporation to operate and maintain in Ogden City any telephone instrument, for which a rental or charge is made, without first obtaining a license for each telephone instrument so operated and maintained. (2) Every person or corporation who shall operate and maintain in Ogden City any telephone instrument in section 1 of this ordinance shall pay to Ogden City for each telephone instrument an annual license of $5. Section 4 provides that all applications for license under this ordinance shall be made in writing to the city recorder, and any person or corporation violating any of the provisions of this ordinance shall be punished by a fine not exceeding $100 or imprisonment for 100 days. Comp. Laws Utah 1888, p. 331, § 289, authorizes the city council to license, tax, and regulate bankers, agents, expressmen, express companies, telegraphers, photographers, assayers, smelters, crushers, and other like occupations or pursuits. By Id. p. 631, § 89, the legislature has authorized city councils 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. By section 2 of article 13 of the con
Upon the trial of this case, it was admitted that the defendant the Rocky Mountain Bell Telephone Company was a private corporation, organized under the laws of Utah, with its principal office in Salt Lake City, and with an office in Ogden City; that one Ash had a telephone instrument in his store in Ogden, and that it was placed therein by the defendant corporation; and that, when it is taken out, it will be taken out at the expense of the defendant corporation; that said Ash pays to the company a rental of five dollars per month for the use of such instrument, and that for such payment he has the privilege of using said instrument in talking with persons in Ogden City, but in no other place; that the license fee for the use of said instrument had not been paid by the defendant, or any other person, and no license had been issued for maintaining or operating said instrument; that the defendant Crossman is the agent and managing officer of defend
1. The first question presented in this record is, was the ordinance unconstitutional, and an interference with the
It appears from the agreed statement of facts that the-said corporation operated and maintained said instrument in the store of Mr. Ash, for which he paid the company five dollars per month; that this payment gave Ash the privilege of talking with persons in different parts of the-city, and for no other place; that, if Mr. Ash used the instrument in talking with parties out of the state, he paid the usual stipulated sum charged therefor, outside of the rental price paid for the instrument. It is evident the defendant corporation operated and maintained such instrument in Ogden City for a stipulated monthly rental, for business of a local character, which was confined strictly within the city limits. For interstate business it made another and distinct charge, independent of the local rental business charge of five dollars per month. Lessors of such instruments had no right to use them outside of the-city, unless they paid certain extra charges therefor, to-which all others were subject. It is evident that the ordinance was not intended to, and does not, apply to or affect in any manner the business of the defendant corporation which is interstate in its character, and that such ordinance was intended to, and does, apply to and affect only the local business of said defendant company done within Ogden City, as shown from the rental of the instrument for use in Ogden City alone. By engaging in a business of operating and maintaining such telephones in Ogden
2, It is also claimed by the respondent that the amount of the license is excessive and unreasonable;' that it is imposed for revenue purposes only, and not within the exercise of police power; that, having paid its proportion of the general tax, it cannot be compelled to pay an additional tax under the guise of a license. We have seen that sections 89 and 289, Comp. Laws Utah 1888, authorize cities to levy and collect license fees or taxes on private and corporate business within the limits, of the cities, and to regulate the same by ordinance, and to license, tax, and regulate telegraph and other like occupations or pursuits, and that such acts were authorized by the constitution. It is apparent that the ordinance in queston was passed by virtue of the express power and authority of the statute as authorized by the constitution. Under such circumstances, it was not competent to prove the unreasonableness of the ordinance by virtue of the conclusion of wit
3. Sections 2 and 3 of article 13 of the constitution were controlled and limited by sections 5 and 12, above quoted, in so far as the power is granted to the legislature to empower municipalities to assess and collect taxes for all the purposes of such corporation, and in providing for a tax upon income, occupation, licenses; franchises, or mortgages. Under the power, the legislature could properly grant muncipalities the rights conferred by sections 89 and 287, above referred to. Under the constitution, taxa
4. It is also insisted that the ordinance is void because it attempts to punish by fine and imprisonment the failure to pay a purely revenue tax. 1 Comp. Laws Utah 1888, p. 631, § 90, confers express power upon a municipality to pass all ordinances, rules, and make all regulations necessary for carrying into effect all powers and duties conferred by that act, and to enforce an obedience to such ordinance, with such fines or penalties as the city council may deem proper, provided the fine or penalty shall be less than $300, and the imprisonment shall not exceed six months for each offense. The ordinance provides for a fine not exceeding $100, or imprisonment for 100 days. We cannot sustain the objection made. The ordinance was enacted in accordance with the statute. This is not a proceeding to collect a license, but a proceeding instituted to enforce a penalty for its violation on the part of the defendant corporation. Such ordinances, imposing a penalty by fine or imprisonment, when authorized, by the organic law, have been almost universally upheld when brought to the attention of the courts. Denver City Ry. Co. v. City of Denver (Kan. Sup.), 41 Pac. 826; City of St. Louis v. Sternberg, 69 Mo. 289; City of Cincinnati v. Bucki
We are of tbe opinion that the court erred in finding the defendants not guilty, and in dismissing the complaint on the ground that the ordinance, under which the complaint was drawn, was unconstitutional and void, and that the complaint does not state facts sufficient to constitute a public offense. Inasmuch as the defendants have been tried and acquitted upon the charge, the case is remanded, with instructions to the trial court to reverse and set aside the order and judgment, but to discharge the defendants from custody.