The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1881-04-12

ID
september 16th, 1879, and that that
ordinance being null and void, the sup
lplemental ordnance has no force or
validity; that the ordinance Of September
lotn, 1879, attempts to do two things, and
"nieh the City Council has no power
under the city charter TO do, namely: 10
levy tax and grant license upo tn
,ame business; that the amount specified
10 said ordinance as and for license TO
keep a billiard table is in its nature q
tax, and as tax cannot be collected IN
der the form Of license; that the City
Council has no authority to exercise
Jointly the power to levy tax and com
pei 3 party to take 3 license to keen
billiard tables; that the charter of the
city does not confer upon the city poWe,
10 license, tax, regulate and suppress the
use Of billiard tables, but only, If it con
;ers say right, empowers 1t to license,
TAX, regulate and suppress billiard tables
as property; and thar II It does this, the act
u Incorporation Is void in that particular
for want Of uniformity; that the City
Council having, under section 40 of the
set Of incorporation, 'the exclusive au-
thority and power to impose fines, for
FIXTURES and penalties" such power can
not be delegated to another, and g.
section of the March 22d, 1881, ordi-
nance does not fix definite amount Of
tine, but leaves the amount to be deter
mined by the court before whom any Of
fender may be tried. it is void; that tn
charter requiring that all ordinances
passed by the City Council shall, within
one month after they shall have been
passed, be published in some Newspaper
printed 10 said city, and the ordinance
nnAar nansfAarafan, L.r-fr-- haa-,
published at the time of the alleged Of
fence, no authority exists whereby snG
under which the city could proceed
against these alleged violstors Of the ordi
nance; that the requirement for publ
cation is equivalent 10 provision that
ordinances shall not go into effect until 8
month after their passage.
As has been said, the power exists in
the City Council Of Salt Lake City under
and by virtue Of sections 8 and Of the
Act of February 18Th, 1872 to license and
to tex. and to regulate and suppress bill
lizard tables. Clearly four thiLgs can be
done. Gan they all be done at one and
the same time? and are they all four so
consistent, one with the other, that they
can be exercised at the same time?
lfthey cannot ell be exercised at one And
the same time, because Of Inconsistencies,
which Of them can stand togethsr2 To
license, is 70 grant permission to do IOme
lawful act.
To tax ia to impose 8 burden on prop
erty or individuals in the shape of q sum
Of money, at the will OF the sovereign
power, for the purpose of deriving rover
ues to support and sustain the govern
ment or any particular feature oft.
To regulate, implies that duties may be
imposed and restrictions provided and en-
forced.
10 suppress implies that = certain
thing may be prohibited, forbidden,
stopped.
Itoccurs to the mind that three Of thes,
powers may be conformity enjoy ed
namely: To license, to tax a.,
TO regulate. And at the same tim,
it follows that under the head Oi
one you canrot do the other; q
for instance, under the power to icers.
taxes cannot be imposed, nor under tn
power to tax can license be imposed
nor under the head TO regulate can either
3 license fee be exacted or q tax imposed,
but under the general power to do al
these, q tax may be imposed, q license fee
exacted and duties may be imposed AID
restrictions provided and enforced. t.
do all three of these acts does not requir
the exercise of the same power, and
same objects are not attained by the act
authorized
Neither of the three named things ca
b exercised over any subject which has
been suppressed By legislative enactment.
1t then becomes prohibited and forbid
dez thing, the subject only of the punt
tive powers of the government. 1t is con-
cluded, therefore, that the power does ex-
ist in the City Council of Salt Lake City
under its charter 10 do the three men
toned things, they being CONSTANT at
the same time.
Has the City Council exercised these
powers properly and legally by the enact
ment ofthe ordinances fSepteInber 10th
1879, and March 22d, 1881.
By the irst section Of the ordinance of
September 10th, 1879, it is provided thst:
Mcpherson shall keep any of ths tables
hrreinaiter mentioned, in any hotel, So
loon, or other public place, for use, WITH
out first obtaining license therefor ac-
cordiug to the provisions of this ordi-
nance.
Section 8 provides:
Licenses under this ordinance shall BE-
obssiued, Issued and recorded in the same
manner as provided in chapter Z ght Ct
the Revised Ordinances Of Salt Lake
City.
Chapter eight provides thst all applica-
tions shall be made in writing to the
Mayor, amount paid in advance, that
licenses shall be issued by the Mayor
and signed by him or the presiding oil
GERS Of the City Council and sttested by
ths city recorder, under the seal Of the
city.
This i. an attempt to provide by ordi
nance that no person shall keep billiard
table in the places mentioned, without
having provided license the 'etor. And
il it stood alone, although nothing IN the
part last quoted is said q. 10 wnat amount
Of money shall be paid therefor, would
impose upon person who shall keep q
billiard table in the places mentioned the
obligation of obtaining license.
By section Of the same ordinance, it
is provided:
For the purposes of revenue there shall
be levied and collected in advance Of the
keeper thereof, for every license to keep
as aforesaid, billiard, ETC., for one such
tGbls for three months SIS, and for eacn
additional table for three months $40.
The form of this section indicates that
the purposes to be attained by it is
revenue, and revenue Is taxes. Il is al
effort, under the power to license, to i'm
pose tax. commingling Of the two
powers granted by the charter which is
not warranted, and the attempt is fatal
to the effort. The very words Of the
section under consideration expresses the
object to be for the purpose OF revenue;
and IS we have seen the power to license
cannot be used to impose tax, this sec
ton must be null and void. Divested OF
this section the ordinance of Septemb Der
10, 1879, may yet be valid one. Lesv-
ing it out it can be read hArmoniously,
and it can stand ss 8 whole.
II the ordinance Of September 16, 1879,
stand the other tests which may he put
TO It, and il should be cor ceded that the
ordinance Of March q. 1881. is supple
mental TO il, no good reason has presented
itself to the mind Of the court, why it
should not be valid ordinance. It is
simply an attempt to regulate by the
i imposition Of restrictions the hours and
times when the tables may be used; and
is the mere exercise of 8 power which
may be conferred on the city by the
charter which in the opinion Of the
court msy be exercised at the same time
with license L is for the infrac-
ton OF this ordinAn e the applicants we're
arrested.
Il has been insisted that as the e1clu-
sive authority ard and power Is conferred
| by the City charter on the City Council TO