95 P. 523 | Utah | 1908
On the 21th day of November, 1906, the city, in due form, filed a complaint in the city court wherein it was alleged that the defendant was carrying on a certain business within said city without having complied with certain sections of an ordinance requiring the payment of a certain license tax as therein specified. The defendant, appellant here, demurred to'the complaint. The case, by consent of the parties, was transferred from the city court to the district court
íhat the appellant is a corporation, and is engaged in and carrying on the business of a shoe merchant in said city; that it has refused to comply with sections 356 and 380 of the Kevised Ordinances of said city; that appellant has paid all taxes except the license tax referred to in said ordinance, which latter tax appellant claims to be invalid; that appellant for the year 1906 had been duly assessed upon all of its stock under the laws of the state for state, county, and city purposes (other than said license tax), and that the taxes so assessed have been fully paid; that the license tax now1 in question is attempted to be collected upon the same stock of goods upon which the other taxes referred to above were paid. Section 356 of the City Ordinances provides:
“It shall be unlawful for any person to engage in or carry on any business, trade, profession, or calling, for the transaction or carrying on of which a license is required, without first taking out or procuring the license required for such business, trade, profession, or calling.”
Section 380, so far as material here, provides:
“It shall'be unlawful for any wholesale or retail merchant to commence or carry on his business without first making a statement under oath of the cash value of all goods, wares, and other merchandise which he may have in his possession or under his control for sale.”
The ordinance is also' made applicable to bankers and brokers, who must make a similar statement showing the amount of capital employed in the business conducted by them. These statements are required be filed with the city recorder. The ordinance divides the merchants and bankers into twenty-two classes. All those that exceed the sum of $500,000 constitute the first class, and must pay an annual license tax of $500. The lowest class is limited to $200, which pays an annual license tax of $10. The several classes are somewhat arbitrarily arranged. To illustrate: The amount of $100,-000 constitutes the difference between each of the first five classes; that is, the first class takes in all above $500,000,
The first alleged error to be noticed relates to the objection that the ordinance is invalid. It is strongly urged by counsel for appellant that the ordinance in question offends against section 3 of article 13 of the Constitution of this state, which, so far as material here, provides:
"The Legislature shall provide by law a uniform and equal rate of assessment and taxation of all property in the state, according to its value in money, and shall prescribe by general laws such regulations as snail secure a just valuation for taxation of all property; so that every person and corporation shall pay a tax in proportion to the value of his, or its property.”
No doubt the provisions of this section are mandatory, and require that all property taxes shall be equal and uniform in so far as this • may be accomplished by the application of general laws. Does this section apply to the license tax in question ? If it does, then, perhaps it may be said that the tax imposed by the ordinance is not as equal and uniform, when limited to a strict money valuation, as it could be made,
Having thus eliminated from the Constitution altogether the several kinds of taxes specified in section 12, is it reasonable to suppose that the framers of that instrument nevertheless intended to provide for the conditions upon which
Independently of the constitutional exception above discussed, the courts have frequently passed upon and applied the general 'constitutional provision demanding equality and uniformity of taxation. The. decisions are almost, if not quite, unanimous that the constitutional provision which imposes equality and uniformity of taxation has no application to an occupation or license tax, but is limited to a direct property tax which is assessed and collected in the usual way; and further, the contention that the tax in question is a direct tax upon property is also very ably and satisfactorily discussed and decided against counsel’s contentions by the following, among numerous other, cases: City of Newton v. Atchison, 31 Kan. 151, 1 Pac. 288, 47 Am. Rep. 486; Banta v. City of Chicago, 172 Ill. 204, 50 N. E. 233, 40 L. R. A. 611; American Union Express Co. v. City of St. Joseph, 66 Mo. 675, 27 Am. Rep. 382; In re Watson, 17 S. D. 486, 97 N. W. 463; Baker v. City of Cincinnati, 11 Ohio St. 534; Fleetwood v. Read, 21 Wash. 547, 58 Pac. 665, 47 L. R. A. 205; Stull v. De Mattos, 23 Wash. 71, 62 Pac. 451, 51 L.
Counsel for appellant, however, contend that the cases decided by the Supreme Court of the United States are not controlling, because that .court simply passed upon the question whether such taxes were in conflict with the federal Constitution. This contention is no doubt correct, but inasmuch as the tax in question does not come within the section of our constitution which requires it to be based upon a strict money valuation, what is said by the Supreme Court of the United States with regard to the propriety of classification and uniformity is of great, if not controlling force.
But it is further contended that if the. tax in question is not violative of the Constitution of this state, it still must fail because it is in violation of subdivision 87, section 206, Eev. St. 1898, by virtue of which the tax is imposed. Under section 206 the Legislature has conferred certain powers upon the cities of this state, and, among others, the following:
“To raise revenues 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.”
The foregoing is a verbatim copy of what constituted subdivision 89 of section 1755, Comp. Laws 1888, which was in •force at the time the Constitution was adopted, and was reenacted and incorporated into the Eevised Statutes of 1898. This is cumulative evidence that the framers of the Constitution in adopting section 12 of article 13, above referred to, intended to leave the power and manner of imposing license taxes just as they were. The provision is also, with the ex-
These questions of uniformity and equality are fully discussed and decided against appellant, and classifications similar to the one applied in this case are sustained in the cases cited from Kansas, Pennsylvania, the Supreme Court of the "United States," Missouri, Arkansas, California, and others. While Mr. Justice Brewer, in the Kansas case, supra, suggests that prima facie a tax assessed upon the actual value of property is perhaps better calculated to approximate true equality and uniformity than this can be done by any other method, he, nevertheless, concedes that it is but a theory, and that such a method may not in all eases produce equality or uniformity. Where the burden imposed bv a tax is alone considered, the foregoing method, as a general rule, may re-
Finally, it is urged that the ordinance is invalid because it imposes a penalty by fine or imprisonment for failure to pay a mere property tax, which penalty is not imposed for a failure to pay taxes generally. If we assume that this part of the ordinance were void for the reasons stated, it would still not affect the validity of the tax. (Mageneu v. City of Fremont, 30 Neb. 854, 47 N. W. 280, 9 L. R A. 786, 27 Am. St. Rep. 436.) In 2 Cooley on Taxation (3d Ed.), p. 438, the author, after stating that the constitutional provision .against imprisonment for debt does not apply, says: “In case of license taxes it is still customary to provide for arrest and imprisonment as a means of' enforcing payment.” A large number of cases are cited in support of the text. In Rosenbloom v. State, 64 Neb. 342, 89 N- W. 1053, 57. L. R. A. 922, the former decisions of the Supreme Court of Nebraska holding to the contrary are overruled. The. Supreme Court of Nebraska in the latter case brings itself into harmony with the great weight of authority in holding that arrest, fine, and imprisonment may be resorted to for the purpose of enforcing
From what has been said it follows that the ruling of the district court was in accordance with the great weight of authority, and the judgment is accordingly affirmed with costs to respondent.