Morgan v. Salt Lake City

3 P.2d 510, 78 Utah 403, 1931 Utah LEXIS 32

• Court: Utah Supreme Court
• Decided: October 3, 1931
• Docket: No. 5171.
• Status: Published

Opinions

STRAUP, J.'

This is an appeal from a judgment in the district court in a habeas corpus proceeding discharging the 'plaintiff, William Morgan, from an alleged unlawful imprisonment. In the petition for the writ is set forth an ordinance of Salt Lake City relating to card room and card club licenses. So far as material the ordinance provides:

“Section 1259. It shall be unlawful for any person to keep, maintain or operate in Salt Lake City any room open to the public in which games of cards are played or any table in any such room on which games of cards are played without first obtaining a license.

“It shall be unlawful for any person to keep, maintain or operate-in Salt Lake City any room where cards are played, or any table on which cards are played, where charge is made for the use of the room, use of the table, or for the privilege of playing on such table or in such room, without first obtaining a license.”

“Section 1260. It shall be unlawful for any club, association or corporation to keep, maintain or operate for the use of its members or guests any room in Salt Lake City in which games of cards are played or any table on which games of cards are played- without first obtaining a license so to do.”

Section 1264 provides for an annual license fee of from $150 to $400.

In the petition it further is alleged that in a prior proceeding in the district court the ordinance, especially section 1259, was declared void; that notwithstanding such decision the defendants caused a complaint to be filed in the city court of Salt Lake City against the plaintiff charging him with a violation of section 1259 of the ordinance; the charging part of the complaint being as follows: “That the defendant (the plaintiff herein) did unlawfully then and there keep, maintain and operate in a certain building situ ated at 18 East Second South Street in this city a certain table in a room in said building open to the public on which table a game of cards was then and there being played by seven persons whose names are unknown to this complainant without first obtaining a license to do so as required” by the ordinance referred to and contrary to the provisions of section 1259 of chapter 33 of the Revised Ordinances of the city.

It then is alleged that upon such complaint the plaintiff was arrested, imprisoned, and restrained of his liberty, and that the imprisonment and the restraint were unlawful, upon the ground that the ordinance upon which the complaint in the city court was predicated was void and theretofore had been declared void by a prior decision of the district court, upon the ground that the city was without power or authority to pass the ordinance.

The defendants answered admitting the material allegations of the petition, justified the imprisonment and detention under the ordinance, alleged its validity, and thus denied that the imprisonment or restrain was unlawful and denied the alleged prior adjudication. On a hearing the court held the ordinance void and discharged the plaintiff from custody. The defendants appeal.

It is important to notice that two distinct offenses are stated in section 1259 of the ordinance. By the first paragraph of the section it is declared to be “unlawful” for any person to keep, maintain, or operate any room “open to the public in which games of cards are played,” or any table in such room on which games of cards are played, without first obtaining a license. To do that and only that is by such portion of the ordinance declared to be a punishable offense. The second paragraph declares it also to be “unlawful” for any person to keep, maintain, or operate “any room” (whether open to the public or not) where cards are played, or any table on which cards are played, “where charge is made for the use of the room, use of the table or for the privilege of playing on such table in such room,” without first obtaining a license. It thus is seen that each paragraph declares all the requisites of an offense and that each is complete within itself. In considering the requisite elements of the one the other need not be looked to.

It is clear that the plaintiff was restrained and confined upon an arrest and imprisonment for an alleged violation of the provisions of the first paragraph of the section and for an alleged offense therein stated. That is manifest from a comparison of the complaint with the ordinance. As is seen, the complaint is in the very language of such provision of the ordinance. By the complaint and upon which he was arrested and confined, the plaintiff was not charged with a violation of any other provision or part of the ordinance. Not anything was omitted from or is wanting in the complaint to charge the offense declared by the first paragraph of the section. If the ordinance in such particular is valid, the complaint stated a public offense. If it is not, the complaint stated no offense. Hence, the question is: Is such, portion of the ordinance, the violation of which was charged and , for which the plaintiff was arrested and imprisoned, valid or invalid? We, in this proceeding, are therefore not concerned with the validity or invalidity of other portions of the ordinance, the violation of which was not charged nor attempted to be charged nor for which the plaintiff was arrested and restrained of his liberty.

That the writ of habeas corpus lies to release and discharge from custody one imprisoned or confined under a void ordinance is not questioned. By the plaintiff it is asserted and the court below held that no power or authority of law was conferred on the city to pass or promulgate such an ordinance as was alleged the plaintiff had violated and under which he was confined and his liberty restrained. It is conceded, and as is stated in the case of American Fork City v. Robinson (Utah) 292 P. 249, 250:

“That the powers of the city are strictly limited to those expressly granted, to those necessarily or fairly implied in or incident to the powers expressly granted, and to those essential to the declared objects and purposes of the corporation, is settled law in this state.”

In defense of the validity of the ordinance in question and in support of the power and authority of the city to pass such an ordinance, the defendants point to Comp. Laws Utah 1917, §§ 570x4, 570x38, 570x39, and especially to section 570x86. Section 570x4 merely confers power on the city “to fix the amount, terms, and manner of issuing licenses.” Section 570x38 relates to powers and authority conferred upon municipalities to license, tax, and regulate peddling, pawnbrokers, banks, brokers, employment agencies, bathhouses, restaurants, and fifty or more other enumerated matters and things; to license, tax, and regulate the business conducted by hackmen, truckmen, etc., merchants, butchers, druggists, etc., and the running of automobiles, street and steam railways, etc., in all an enumeration of about seventy-five or more matters and things; but neither by enumeration nor classification is included the subject of the ordinance, or to which it in anywise relates. Section 570x39 confers power to license, tax, regulate, and suppress billiard, pool, etc., dancing halls and dancing resorts, etc.,

“and all places or resorts to which persons of opposite sexes may resort for the purpose of dancing or indulging in any other social amusements.”

It is not seriously contended that the subject of the ordinance is included within either sections 570x38 or 570x39. What chiefly is contended is that it is included within section 570x86. That section confers power on municipalities:

“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.”

It is claimed by the plaintiff and denied by the defendants that in determining the kind of “business” referred to in section 570x86, and on which a license fee may be imposed and collected and which may be regulated, resort must be had to section 570x88, defining the kind of business and the matters and things upon which a license fee may be imposed and collected. By the defendants it is contended that section 570x86 gives the city power by ordinance to impose and collect a tax or license fee on any kind of business whether included or not within the provisions of section 570x38. And so, numerous cases and authorities are cited by them to the effect that in the absense of constitutional inhibitions or restrictions it is within the power of the Legislature in the exercise of its police power or for the purpose of revenue to itself levy and collect taxes or license fees on any business or corporation, or to delegate like power and authority to municipalities. All that may here be readily conceded. The crucial question, however, is as to whether the Legislature has delegated to municipalities authority and power to levy or collect a tax or license fee as to or on such a subject dealt with by the portion of the ordinance under consideration.

An identical section of the statute corresponding with the present section 570x86 was before this court in the case of Ogden City v. Boreman, 20 Utah 98, 57 P. 843, 844. There the city passed an ordinance requiring an annual license fee of $10 of “every person practicing the profession of a lawyer, abstractor, dentist, physician, or surgeon” in the city of Ogden, and made “it unlawful for any person to carry on a business without first procuring a license.” The person there arrested and tried as carrying on a “business” or “profession” without a license was a lawyer. The district court discharged him on the ground that no power or authority was conferred upon municipalities to pass such an ordinance and held the ordinance void. That ruling was affirmed by this court. There, as here, the ordinance was defended under a section of the statute corresponding and identical with section 570x86. Thereunder it was claimed that the Legislature had conferred power on municipalities to pass the ordinance and to levy and collect a license fee or tax on any business within the limits of the city, and that practicing law was such a business and was embraced or included within the term “business” referred to in the section corresponding with section 570x86. But this court held that section must be considered in connection with the section corresponding with section 570x88, which so far as here material was identical with it, and of which this court stated that

“This section does not embrace the right to license lawyers. These provisions of the statute must be read and construed with relation to each other.”

Thus the holding was that inasmuch as the profession or business of a lawyer was not included or embraced in the section corresponding with the present section 570x38, no power or authority by that section, or by the section corresponding with section 570x86, was conferred on the municipality to pass the ordinance there in question. That such was the holding cannot be doubted. Further observations were there made that in 1888 under the territorial laws of Utah the statute expressly conferred power on municipalities to impose and collect a license fee on lawyers, that in 1898 that law was repealed and subsequently sections corresponding with sections 570x38 and 570x86 were enacted and which was referred to as a further reason why the Legislature in passing such subsequent sections did not intend that the business or profession of a lawyer should be included or embraced within them. Such reference or observation is now pointed to as a distinguishing feature between that case and the one in hand. The reference so made by the court in no particular modified or limited the unequivocal holding that the sections corresponding with sections 570x38 and 570x86 must be considered and construed together and that in the former the profession or business of a lawyer was not embraced or included within it, and inasmuch as such a business was not so included or embraced therein, no power or authority was conferred on the municipality to enact the ordinance there in question. The section corresponding with section 570x38 is set forth in the opinion in the Boreman Case. No one reading it may successfully assert that the profession or business of a lawyer is embraced or included within it. This court in unmistakable terms said it was not, and as the section corresponding with section 570x86 was required to be considered in connection with it, the conclusion was reached and the holding made that no power or authority was conferred on the municipality to pass the ordinance.

We now look at the matter in hand. What here is the subject of the ordinance upon which a license fee was imposed and required? To keep, maintain, or operate a room in a building open to the public in which games of cards are played or any table in any such room on which games of cards are played. With what was the plaintiff charged for which he was arrested and imprisoned? Maintaining and operating a certain table in a room in a building open to the public on which table a game of cards was then and there being played by seven persons, without first obtaining a license so to do as required by the ordinance. The question is: Are such things enumerated in the ordinance and charged in the complaint embraced or included within section 570x88 conferring power on municipalities to levy and collect a license fee on them? Even the defendants do not contend that they are. A reading of the section clearly shows that they are not. But, assert the defendants, such things referred to in the ordinance and charged in the complaint upon which the plaintiff was arrested is a “business,” and hence ample power is conferred on the city by section 570x86 to license and collect a fee with respect thereto. There are two answers to that: First, and as held by this court, section 570x86 must be considered and construed in connection with section 570x88, and if the subject of the ordinance is not included or embraced, as it clearly is not, within that section, no power or authority is conferred on the municipality to pass the ordinance. Second, no business of any kind is characterized by the ordinance under which the plaintiff was prosecuted or is charged in the complaint on which he was arrested and confined. What ordinarily is meant by the term “business” ? It is a pursuit or occupation. It denotes the employment or occupation in which a person is engaged to procure a living. It is synonymous with calling, occupation, or trade, and is defined as any particular occupation or employment habitually engaged in for a livelihood or gain. Words and Phrases, First, Second and Third Series. The ordinance merely describes or characterizes acts or conduct, not a business, and, too, acts of mere amusement or sociability. The portion of the ordinance which it was charged the plaintiff had violated is complete within itself. It declares it to be unlawful to do the acts or things therein enumerated without first obtaining a license. Statutes and ordinances declare it unlawful to fish or kill game without first obtaining a license. No one would hardly contend that such a statute or ordinance characterizes a business, or that one charged with fishing without a license was charged with conducting a business of fishing. In such case, as under the ordinance in question, it is the commission of a single act or transaction enumerated therein which constitutes a violation of it. And so is it charged in the complaint under which the plaintiff was arrested and imprisoned. To construe the portion of the ordinance under which the plaintiff was prosecuted and which it was alleged he had violated as characterizing a business, is to give its language a strained and unwarranted meaning.

Though the language of such portion of the ordinance was susceptible of being characterized as a business, yet we look in vain for anything in section 570x38 which includes or embraces such a business. If, as this court unequivocally held,, the business of a lawyer is not embraced or included within such section, certainly what is characterized by the portion of the ordinance in question, though it be denominated a “business,” is not such a business as is embraced or included within section 570x38.

Thus let the judgment of the court below be affirmed, with costs to the plaintiff. Such is the order.

ELIAS HANSEN and EPHRAIM HANSON, JJ., concur.