165 P. 477 | Utah | 1917
The defendant, a corporation, was charged with carrying on “the business of selling fresh meat at retail and wholesale” 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
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
“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 firsts 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. ’ ’
“The business of a ‘butcher’ is carried on within the meaning of*533 a restrictive covenant if raw meat he sold on the premises though the animals he slaughtered elsewhere; and so the exposure of pork meat for sale is carrying on the business of ‘pork hutcher.’ ”
“The prevailing rule is that under power to regulate, the municipal corporation may license and charge a- reasonable fee, to cover the expense of regulation, especially concerning those occupations wherein regulation and supervision appear necessary or desirable for the public good. Thus, under power given the city to provide for the inspection and to regulate the sale of meats, power to tax for revenue the occupation of selling them is not given, but such fees and charges as are necessary to cover the cost of inspection and police supervision may be imposed.”
Now, we have pointed out that, under our Constitution, both an occupation tax and a license fee or tax may be imposed. We have also shown that the Legislature of this state has clearly conferred both the power to impose an occupation tax for revenue purposes and to impose a license fee or tax for the purpose of regulation under the police power, and hence the objection of want of power must fail.
“A municipal corporation cannot, by ordinance, under the delegated general power to tax privileges, segregate the several elements of right that accrue to the citizen under one taxable privilege, as recognized, defined and declared by law, and tax each of such elements as a separate and distinct privilege of its own creation, as, for example, by dividing several privileges into many and requiring separate licenses to sell special articles which necessarily belong to one legal privilege, and which the law permits to be sold under one license. To express the rule in other words, power to impose a license tax upon a business does not authorize a division of the business into its constituent elements, parts, or incidents, and levy a separate tax on each or any element, part, or incident thereof.”
In the case at bar appellant, in its general stock of merchandise, has, however, also included several articles which are usually recognized as falling within the power to regu
The objections urged by appellant’s counsel are therefore without merit, and the judgment should be affirmed, with costs to respondent. Such is the order.