The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1897-12-25
TELEPHONE CASE DECIDED.

TELEPHONE CASE DECIDED.
Judge Rolapp Declares the License
Ordinance Unconstitutional.
The ordinance imposing license on
the Telephone company for maintaining
its system in Ogden has been declared
unconstitutional by Judge Rolapp.
The decision was rendered. yesterday,
and is of unusual interest, especially
as the franchise Of the Rocky Noun
tain Bell Telephone company expires
within a year, and an ordinance to give
the company another franchise is al
ready before. the city council.
The decision is an important one,
and is here given. After quoting the
ordinance, the court says:
THE proof shows that defendants did
not comply with the ordinance in any
particular; that they rent 175 tele-
phones in Ogden City to various par
ties for which a rental charge is
made, producing Gin connection with
tolls) a net revenue of from $1,000 to
So, 600 per annum; that by certain APP
plianceS in the defendants central Office
in Ogden City the ogden telephones
communicate with telephones in an adj
jacent state; and that the company has
filed with the postmaster general
written acceptance of the restrictions
and obligations of the act OF congress
of July "a 1866; and that the company
has paid all the state, county and mu-
nicipal taxes levied against its prop
erty, among which are the telephones
in question.
1.-The defendants maintain that the
ordinance is void for various reasons,
among which are the following: That
it is opposed to the commerce clause
of the constitution Of the United States
that it imposes a tax on interstate
commerce; that the secion of the stat
ute under which the ordinance is
framed, and the ordinance itself, is con-
trary to the state constitution, in that
it imposes a tax levied in a different
manner than that prescribed by the
constitution; that the ordinance is I'M
certain in its terms; that the ordinance
is unreasonable, and that it is void be-
cause it infiicts a punishment of i'm
priSonment.
NOT A COMMON CARRIER.
From a careful perusal of the au
thorities l am of the opinion that the
defendant company does not come
within that class of government agents
which are exempted from taxation by
the commerce clause of the constitu-
ton of the United States; nor that it
engages in interstate commerce within
the terms of the act of 1866 While it is
true that the ordinance might possibly
have been made more definite, yet L
cannot say that it is SO uncertain as to
make it void on that account; nor can
say as matter of law that license
fee of So per annum ON each telephone,
under the circumstances of this case,
is an unreasonable amount.
AS to the other grounds greater
difficulty exists. The statute under
which this ordinance is framed is found
on page 631 of the first volume of the
compiled laws, subdivision SO, which
provides that the city council shall have
power: To raise revenues by
levying and % collecting license
the corporation or business within
the limits Of the city, and regulate the
same by ordinance; that such license
| fees and taxes shall be uniform in re-
spect to the class upon which they are
! imposed
The constitution of this state pro-
vides that the only methods that can
be adopted within this state for the
! purpose of raising revenue, is to levy
tax according to the value of such
property, TO be ascertained as provided
by law If each of these telephones
i (Which have already paid a tax, ac-
| cording to the provisions of law, upon
! their Value) can again be subjected to
taxation, in ar arbitrary sum to be de-
| termined by the city council, then
/ property could be taxed as often, and
under as many DISCUSSES, as NUM-
! cipality or a legislature could conceive.
! That cannot be upheld. Where the
/ constitution points out a specific mode
! by which the revenues of either the
! state, county or city shall be raised, as
/ it does IN this state, that it shall be
! raised by an equal assessment upon
the fair cash values of all property real
and personal, such property cannot a
second time be subjected to that same
! burden, though under a different name.
TELEPHONE NOT A NUISANCE.
TT is claimed by the city that they do
not claim under this ordinance an7
right to tax the property of this cor
poration. But it amounts to that;
and evidently the legislature must
/ have understood the meaning of such
/ Lain language as to raise revenues,
which certainly must mean to produce
means for the general fund of the city
A license fee has no such purpose and
| object A license fee is collected under
the police power of the city, and is i'm
! posed upon such occupations as require
special police protection. But from the
evidence in this case it is clear that the
| telephones in the private offices or resi-
dences of the citizens of Ogden do not
require any special police protection
but rather aid the commerce and gen
eral welfare of the citizens.
"From the evidence in this case car
come to no other conclusion than thai
it was primarily the intention of the
city council of Ogden City to impose
this license fee for the purpose of in
creasing it's revenues. That would be
in opposition to the constitution of thi:
state, and the ordinance. is, upon thai
ground, void.
Il an, also of the opinion that the
ordinance is void because it impose!
Imprisonment as part of the penalt!
for it's violation. The ordinance itSel
makes no provision for the collection
of the license fee imposed, either b!
the recovery of a judgment and eXecu
ton thereon, nor by warrant of dis
tress. 1t gives no authority to lev!
upon seize or sell the property of th
delinquents for it's collection, in case o
a failure or neglect to pay for and u
procure the proper license by the pay
ment of the amount of the license fe
required. 1t provides only for the i'm
position of a fine not exceeding $10C
or IMPRISONMENT for 100 days, or b,
both such fine and imprisonment. Thi
not only without any effort to collec
the license fee out of the property of tn
delinquent, but also without the issu