Hollenbeck v. City & County of Denver , 97 Colo. 370 ( 1935 )

Mr. Justice Holland

delivered the opinion of the court.

The parties will be referred to herein as Hollenbeck and the city. Hollenbeck admitted violation of a city ordinance which provides that each gasoline filling station shall annually pay a license fee of $25 for one gasoline dispenser and an additional annual fee of $10 for each dispenser in excess of one. The municipal court imposed a fine of $25 for the violation, and Hollenbeck took an appeal to the county court, where upon trial, the court imposed a fine and judgment thereon of $10, to which Hollenbeck assigns error. He contends that Ordinance No. 30, Series 1933, of the City and County of Denver is unconstitutional in that it contravenes section 25 of article II, and section 3 of article X, of the Colorado Constitution, which sections are generally designated as the “Due process’’ and “Uniformity” clauses. He bases his contention and attack upon three principal grounds: First, That in reality, the ordinance is a revenue measure enacted under the guise of the police power and that the revenue resulting therefrom is much in excess of the cost of inspection. Second, In that it does not affect all persons in the same class alike, it is discriminatory. Third, That it constitutes double taxation.

Complaint is also made of the admission of evidence respecting the time consumed by the fire department of the city in its inspection of gasoline filling sta tions, and by tbe police department in investigating robberies of sncb stations. Hollenbeck argues tbat members of botb the fire and police departments are paid out of tbe general fund of tbe city — wbicb was admitted— and therefore the time spent by such departments cannot be considered in tbe determination of tbe expense of licensing and inspecting filling stations under tbe ordinance. Tbe evidence discloses, and natural reasoning would support tbe proposition, that tbe existence of gasoline filling stations within the city limits imposes an additional burden upon tbe two departments relative to supervision, fire prevention, and traffic regulation, and this of course, would enter into tbe ultimate cost to tbe city, necessitated by tbe existence and operation of this class of business, consequently evidence relevant to tbe question was properly received.

As to tbe contention tbat tbe ordinance is a revenue measure enacted under tbe guise of police regulation, it is well settled tbat tbe city has tbe power to impose a license tax for either purpose, or for botb purposes, and so long as this right exists, it is of no consequence to Hollenbeck, whether it is for one purpose or tbe other, or for both. Tbe charter, or organic law of tbe city, section 137, clearly delegates tbe right to determine tbe business tbat may be licensed as well as tbe fee to be charged, to its legislative body, tbe city council, wbicb is to be prescribed by general ordinance. Tbat having been done, in tbe absence of any showing tbat it was arbitrarily done, tbe council’s action is not subject to review by tbe courts unless tbe ordinance so enacted operates as a prohibition of a legitimate occupation or business and one not inherently dangerous to public welfare.

The council being vested with the right to classify various industries, occupations or businesses for tbe purpose of license or regulation, its light to make tbe distinction between gasoline filling stations as such, and gasoline dispensers operated in connection with garages, to the end that the ordinance in question exempts from its provisions dispensers connected with garages, was in keeping with its right to make its declaration of policy and its action relative thereto is therefore valid. That there is such distinction is apparent. The one constitutes a separate and distinct business, while the other is incidental to the main business otherwise licensed or taxed. All in each class are affected alike by the ordinance, and it is not discriminatory.

The license tax imposed herein is determined by the extent of the privilege taxed and is not fixed as a property tax upon the value of the property involved. It clearly is an excise tax, permissible in addition to a general property tax without contravening the Constitution, and is therefore not vulnerable to the objection made by Hollenbeck that it is double taxation.

Judgment affirmed.