rupt motives, may represent the deceased as having expressed an idea precisely the re verse of what was intended by him. Often, too, the slightest variation by the witness from the language employed by the deceased, or a different intonation or inflection, may impart an entirely different thought from that in the mind of the speaker at the time of the declaration. Reflection upon the inaccuracy of ordinary witnesses in the use of language, upon their want of original comprehension of a conversation, their liability to connect subsequent facts and circumstances with the original transaction, the impossibility of their recollecting, translating, and reproducing the exact terms employed in a conversation, especially after a considerable lapse of time, must impress upon every lawyer and jurist who has had experience in the trial of causes the danger of placing substantial reliance upon this class of testimony." 1 Greenl. Ev. § 200. It is true, here the alleged trustee testified, but he was very old, and feeble in mind and body, and died shortly after the trial. There was no writing to show that he had disposed of his property in trust for his children. It all rests on parol. For us to hold that the proof in this case is sufficient to establish an express trust would be to open the door to fraud, and endanger the titles of individuals to their property. While, however, we are clearly of the opinion that the proof is wholly insufficient to establish a trust, there is evidence in the record tending to show that the defendant provided in his lifetime equitably, out of his estate, for all his families and children, except the four who are plaintiffs herein; that he intended also to provide for those four before his death; and that the property here in controversy in justice ought to belong to them as their proportionate share of their father's estate. If these things be true, then the unavoidable misfortune which will come to those children upon the announcement of this decision must be attributed to the neglect (unintentional, doubtless) on the part of the owner of the property to declare an effectual trust, and to the infirmity of human law to reach such a case. In such event, ourselves powerless, we can but hope and trust that the love and affection which ought to exist in every household and the ties of consanguinity will be strong enough to do that Justice which the security of title to property forbids us to do. While, in such a case, under such evidence, a trust can neither be established nor enforced by a court, yet, as we have seen, the law is not so unjust as to prevent the parties themselves from discharging obligations of good faith and honor. Having thus decided the case upon its merits, it becomes unnecessary to pass upon or discuss any of the other questions presented, although they have not escaped our notice. The judgment is affirmed, with costs.

MINER and BASKIN, JJ., concur.

(21 Utah, 207)

CACHE COUNTY ▼. JENSEN. (Supreme Court of Utah. March 28, 1900.) LICENSE-IMPOSITION-POLICE POWER-PROHIBITORY LICENSE-WHEN VOID-POWER TO LICENSE-REVENUE FROM LICENSE - STATUTE GIVING POWER-CONSTRUCTION-COUNTY COMMISSIONERS-POWERS-REV. ST. 1898, § 511, subd. 11-TAX ON PARTICULAR INDUSTRY-WHEN VOID DISCRIMINATION DUE PROCESS OF LAW.

1. A mere tax imposed upon a business or occupation is not a license, unless the levy confers a right or privilege as to the business which' would not otherwise exist.

2. License, in general, implies privilege and regulation, and the imposition of it falls within the police power of the state; but the charge of a license fee against a business or occupation, commendable and necessary for the public good, which, in effect, is prohibitory of such business or occupation, is void as an unlawful exercise of such power.

3. The power to license, conferred by Rev. St. 1898, 511, subd. 11, is "for purposes of regulation and revenue." This does not mean for "revenue" alone, but when proper authority has once determined that public interests will be best subserved by requiring a certain business, commendable and useful in itself, to be conducted under proper regulations, such authority may impose a license, fix the rate, and provide for the collection, provided such business be carried on in the county, "outside the limits of incorporated cities."

4. In proper cases, where a license is fixed, while the fee is designed to defray the expenses of regulation, it is no objection to the license that incidentally a revenue is also obtained, if the license be uniform and equal as to all subjects engaged in the business, and, under the circumstances, not wholly unreasonable.

5. The power to license must be the subject of a direct grant. It cannot be implied. A statute giving such power must be construed with great strictness, and any doubt or ambiguity arising out of the language employed must be resolved in favor of the public.

6. Rev. St. 1898, § 511, subd. 11, does not confer authority upon boards of county commissioners to impose a license for revenue only, without regard to regulation, but does confer authority to impose licenses, on the subjects referred to in the statute, for regulation and

revenue.

7. Neither the constitution nor the statute (Rev. St. 1898, § 511, subd. 11) authorizes an ordinance by a board of county commissioners which singles out the one industry of sheep raising, and, under a pretense of licensing the business, imposes a certain tax per thousand upon sheep, so that he who has 4.000 head pays as much as he who has 4,999 head, and there is no protection afforded by the ordinance to those engaged in the business, nor an to indicate that any such regulation or 1 tion is required, and the record shows that the business has been conducted in the same manner as before the passage of the ordinance. 8. Unjust and illegal discrimination between persons, in taxation, and the denial of equal justice, are within the prohibition of the constitution of this state and of the United States. No person can be deprived of his property without due process of law.1

Baskin, J., dissenting. (Syllabus by the Court.)

g C

Appeal from district court, First district; Charles H. Hart, Judge.

City of Ogden City v. Crossman, 53 Pac. 985, 17 Utah, 66, and Judge T. Spencer, 48 Pac. 1097, 15 Utah, 242, cited.

Action by Cache county, by Hopkin J. Matthews, county clerk, against Joseph M. Jensen. Judgment for plaintiff, and defendant appeals. Reversed.

This action was brought to recover of the defendant the sum of $600, alleged to be due as a license tax imposed, by virtue of an ordinance passed and approved May 7, 1898, by the board of county commissioners, upon the defendant because of his business of raising and herding sheep. The ordinance reads as follows:

"The board of county commissioners of the county of Cache ordain as follows:

"Section 1. Every person, company or corporation, engaged in the business of raising, grazing, herding or pasturing sheep in the county of Cache, state of Utah, must annually procure a license therefor from the county clerk of Cache county, and make therefor the following payment: First. Those owning or having in their possession and under their control five thousand or more sheep, constitute the first class, and must pay two hundred and fifty dollars per annum for the first five thousand sheep, and for every additional thousand sheep the sum of fifty dollars. Second. Those owning or having in their possession and under their control four thousand sheep and less than five thousand, constitute the second class, and must pay two hundred dollars per annum. Third. Those owning or having in their possession and under their control three thousand sheep and less than four thousand, constitute the third class, and must pay one hundred and fifty dollars per annum. Fourth. Those owning or having in their possession and under their control two thousand sheep and less than three thousand, constitute the fourth class, and must pay one hundred dollars per annum. Fifth. Those owning or having in their possession and under their control fifteen hundred sheep and less than two thousand, constitute the fifth class, and must pay seventy-five dollars per annum. Sixth. Those owning or having in their possession or under their control one thousand sheep and less than fifteen hundred, constitute the sixth class, and must pay fifty dollars per annum. Seventh. Those owning or having in their possession and under their control less than one thousand sheep, constitute the seventh class, and must pay five cents per head per

annum.

"Sec. 2. Every person who shall engage in the business of raising, grazing, herding or pasturing sheep, or be so engaged within the county of Cache, state of Utah, without first obtaining a license therefor, shall be guilty of a misdemeanor.

"Sec. 3. It shall be the duty of the county clerk of said county to collect the license provided for by this ordinance, and he may enforce the collection thereof by an ordinary action at law.

"Sec. 4. The said clerk shall collect a fee of one dollar for each license issued, which

shall be paid by him into the salary fund of said county.

"Sec. 5. All moneys collected for license under the provisions of this ordinance shall be paid over to the county treasurer and placed to the credit of the general fund of said county.

"Sec. 6. It shall be the duty of the county attorney to prosecute all actions arising under the provisions of this ordinance.

"Sec. 7. This ordinance shall take effect and be in force on and after fifteen days from its passage, and all ordinances or parts of ordinances in conflict herewith are hereby repealed."

It was alleged in the complaint that the defendant was engaged in the business referred to in the ordinance in Cache county from May 22 to July 20, 1898, without obtaining any license therefor; that during such time, and within the county, he was raising and herding 12,500 sheep; and that he refused to comply with the provisions of the ordinance. At the trial the defendant admitted that during a portion of the time alleged he had 2,000 sheep in Cache county. The balance of his sheep had been leased to other parties, and were grazed in Cache and other counties. There is nothing to show that any police protection or regulation of any kind is required because of the carrying on of the business in question in Cache county. It was also admitted that the sheep had been regularly assessed for the year 1898, having been valued at $1.50 per head, and that the total county taxes amounted to 74 mills on the dollar. From the evidence it appears that the defendant owned in all about 13.000 sheep. Their range for grazing during the year includes Toole, Box Elder, Weber, Cache, Rich, and Summit counties. From November until May they graze upon the desert in Toole and Box Elder counties on small sage brush, depending upon snow for water, there being no springs or streams of water there. About April the herders begin to move eastward with their herds as the snow disappears, and continue to so move as necessity demands, until they get into the high mountains in Cache, Rich, and Summit counties, where their summer range is. There they remain grazing through the several counties, until the snows of autumn compel them to again seek the low lands of the desert. Thus the business is carried on from year to year, upon lands wild and untilable, which form part of the public domain. The business of raising and herding sheep is a lawful, laudable, natural, and indispensable industry. During the year 1898 there was no other license ordinance, except the one in question, in Cache county, although among the other chief industries of that county are the raising of cattle and horses and farming. At the trial the court entered judgment in favor of the plaintiff for $100 and costs, in accordance with the provisions of the ordinance. This appeal is from the judgment.

James H. Moyle, Brown & Henderson, and D. H. Wells, Jr., for appellant. Frank K. Nebeker, for respondent.

BARTCH, C. J., after stating the case as above, delivered the opinion of the court.

It is contended, in the first instance, on behalf of the appellant, that the passage of the ordinance in question by the board of county commissioners was an attempt to tax an occupation for revenue purposes, and that any delegation of such authority on the part of the legislature to such boards or quasi municipalities was without effect, because a violation of sections 2, 3, 5, 12, art. 13, Const. Utah. These several sections of the constitution were considered in City of Ogden City v. Crossman, 17 Utah, 66, 53 Pac. 985, and received a construction adverse to appellant's contention. It was there, by Mr. Justice Miner delivering the opinion of the court, said: "Sections 2 and 3 of article 13 of the constitution were controlled and limited by sections 5 and 12, above quoted, in so far as the power is granted to the legislature to empower municipalities to assess and collect taxes for all the purposes of such corporation, and in providing for a tax upon income, occupation, licenses, franchises, or mortgages. Under the power, the legislature could properly grant municipalities the rights conferred by sections 89 and 287, above referred to. Under the constitution, taxation is clearly a legislative prerogative, and may be conferred upon a municipality to such an extent and for such purposes as may be deemed expedient, so long as the limits and restrictions of the organic law are observed. When the legislature delegated the power to the municipality, under section 3, 'to provide by law a uniform and equal rate of assessment and taxation of all property in the state according to its value in money,' it had reference to the levy of an ad valorem or direct tax upon property, and does not apply to licenses imposed upon privileges, business, and occupations." Section 89, referred to in connection with section 287, in the above quotation, is subdivision 89, § 1755, Comp. Laws Utah 1888, and reads as follows: "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." In accordance with this provision, Ogden City, by ordinance, imposed a license tax of five dollars per annum on each telephone instrument operated by the defendant, the Rocky Mountain Bell Telephone Company, in that city, and the court held the tax a valid exercise of legislative power under the constitution and statute. Whether or not that case was correctly decided, and whether we would now, upon further consideration, place the same interpretation upon those sections of the constitution, are questions immaterial here, under 61 P.-20

the view we have taken of this case. For all purposes herein, it may be admitted that the principles stated in that case, with reference to an ordinance passed by a city, apply with equal force to one passed by a county, and that the legislature has plenary power to authorize a board of county commissioners to impose a license upon occupation for revenue only, even in the absence of any regulation, police or otherwise, of the business. If, for the purposes of this case, such be the admission, which is certainly as broad as could in reason be contended for, then the material questions decisive of this case are, did the legislature confer such power in this instance? and is the ordinance, under consideration herein, a proper exercise of the power conferred?

To determine the first of these inquiries, reference must be had to section 511, Rev. St., which, in subdivision 11, authorizes the board of county commissioners in each county, under such limitations and restrictions as are prescribed by law, "to license, for purposes of regulation and revenue, all and every kind of business, not prohibited by law, transacted and carried on in such county, and all shows, exhibitions and lawful games, carried on therein outside the limits of incorporated cities, to fix the rates of license tax upon the same, and to provide for the collection thereof, by suit or otherwise." "License," in common parlance, implies permission to do something which may not be done without a license. In this sense we are to understand the word was used in the constitution and statutes, unless the context indicates a different or more comprehensive meaning. "The object of a license," says Mr. Justice Manning in Chilvers v. People, 11 Mich. 43, "is to confer a right that does not exist without a license." A mere tax imposed upon a business or occupation, therefore, is not a license, unless the levy confers a right or privilege as to the business which would not otherwise exist. So, a right to license a business or occupation does not imply a right to exact a tax merely for revenue, and where the object is revenue the power to license for that purpose must be conferred in unequivocal terms. Cooley, Const. Lim. 242. "License," in general, implies privilege and regulation, and the imposition of it falls within the police power of the state. That power may be exercised, and license taxes are frequently imposed, with a view to discourage business and occupations which are injurious in their tendencies and prejudicial to the pub lic good, but, "to justify a restrictive license, the business must of itself be of such a nature that its prosecution will do damage to the public, whatever may be the character and qualifications of those who engage in it." Tied. Lim. p. 278. The license, in cases where the business is unlawful and detrimental to public morals, may be, and frequently is, imposed as a prohibitory measure. Ꭺ charge of a license fee, however, against a

business or occupation, commendable and necessary for the public good, which, in effect, is prohibitory of the carrying on or pursuing of such business or occupation, is void as an unlawful exercise of power. This is especially so when such a license fee is imposed by a municipality or board which has no inherent power to issue a license, and to require the payment of a license fee. 13 Am. & Eng. Enc. Law, p. 532; Cooley, Const. Lim. 244; Kitson v. Mayor, etc., 26 Mich. 325; People v. Jarvis (Sup.) 46 N. Y. Supp. 596. A municipality can exercise such power only as has been conferred upon it. This is strictly so as to license. "The grant of a license," says Judge Cooley, "may be made by the state directly, or it may be made indirectly, through one of the municipal corporations of the state. Of the indirect grant, it is to be observed that a municipal corporation as such has no inherent power to grant licenses or exact license fees; it must derive all its authority in this regard from the state, and the power must come by direct grant, and cannot be taken by implication." And again he says: "It is perhaps impossible to lay down any rule for the construction of such grants that shall be general and at the same time safe; but, as all delegated powers to tax are to be closely scanned and strictly construed, it would seem that, when a power to license is given, the intendment must be that regulation is the object, unless there is something in the language of the grant, or in the circumstances under which it is made, indicating with sufficient certainty that the raising of revenue by means thereof was contemplated." Cooley, Tax'n, 597. Referring to employments and occupations which are harmless, and useful for the public weal, Mr. Tiedman says: "They not only do not threaten any evil to the public, but their prosecution to the fullest measure of success is a public blessing. Instead of placing trades in general under restraints and police regulations, in which a license would be required, the utmost freedom can best attain the greatest good to the public. When, therefore, we see municipal corporations requiring licenses for the prosecution of all kinds of occupations and employments, if their action can be justified at all, it must rest upon some other grounds than as a police regulation. It can only be justified as a tax upon the profession or calling. Having the natural, inalienable right to pursue a harmless calling, he cannot be required to take out a license before he can lawfully pursue it." Tied. Lim. § 101.

In the light of these principles, can it be said, with any degree of certainty, that the legislature, in the enactment of the provision of the Revised Statutes above quoted, intended to confer power upon the board of county commissioners to single out and impose a license upon a harmless and useful business, for the sole purpose of raising revenue, without regard to regulation for such business? Is it reasonable, in the face of constitutional

provisions, containing ample power to raise revenue for all governmental purposes, to impute to the legislature such an intendment, in the absence of language conferring such authority in clear and unequivocal terms? We think not. The power to license, conferred by subdivision 11, is "for purposes of regulation and revenue." This does not mean for "revenue" alone, but when it has once been determined, by proper authority, that the public interests will be best subserved by requiring a certain business, however commendable and useful in itself, to be conducted under proper regulations, such authority may impose a license on the business, and fix the rate of the license tax or fee, and provide for collection of the same, provided that such business be carried on in the county "outside the limits of incorporated cities." In such event, while the fee is designed to defray the expenses of regulation, it is no objection to the license that incidentally a revenue is also obtained, if the license tax, under the circumstances, be not wholly unreasonable, and be uniform and equal as to all subjects engaged in the same business. That the legislature intended "regulation" to be a principal element of every license, under the statute, is manifest from the context; for, as will be observed, "every kind of business," and all shows, exhibitions, and games, not prohibited by law, are made the subjects of license. Here are manifestly included many objects which render regulation important, for the purpose of protection to the public, and to guard individuals against fraud and imposition. If the legislature had intended to delegate to such boards, through the medium of a license, the power to raise revenue, without reference to regulation, it was within its province to do so in unmistakable terms. Any doubt or ambiguity arising out of the language employed in the statute must be resolved in favor of the public. The power must be the result of a direct grant, and cannot be implied. Such a statute must be construed with much strictness. Suth. St. Const. § 365; Joyce v. City of East St. Louis, 77 Ill. 156; Commissioners v. Mighels, 7 Ohio St. 109; City of St. Louis v. Boatmen's Insurance & Trust Co., 47 Mo. 150. The arbitrary power contended for, by virtue of subdivision 11, being in derogation of the natural rights of the individual, will not be aided by judicial interpretation. "Such interference with the natural right of acquisition and enjoyment guarantied by the constitution can only be justified when public necessity clearly demands it. Being a sovereign power, it can only be exercised by the general assembly when delegated by the people in the fundamental law. Much less can it be exercised by a municipal corporation without a further unequivocal delegation by the legislative body. The power can be delegated by the legislature, but only in plain, unambiguous words. Statutes for that purpose will be construed strict