Mountain States Telephone & Telegraph Co. v. Ogden City , 26 Utah 2d 190 ( 1971 )

TUCKETT, Justice.

The plaintiffs filed their complaint in the court below seeking a decree declaring that certain taxing ordinances adopted by the defendant city are invalid.

The matter was submitted to the district court on an agreed statement of facts, and those pertinent and necessary to an understanding of the case are as follows: The-Mountain States Telephone and Telegraph Company operates a telephone system in Ogden City and elsewhere. Mountain Fuel Supply Company operates a gas supply system. in Ogden City and elsewhere. Utah; Power & Light Company operates an electrical power system in Ogden City and elsewhere. At prior times the defendant Ogden City by separate ordinances had granted franchises to each of the plaintiffs for periods of 25 to 50 years. Each ordinance granting the franchises provided that the plaintiffs were to pay to the city two per cent of the utility gross revenue derived from sales within the city limits. Each ordinance contained a provision setting forth that such payments were “in lieu” of all other-taxes, charges and impositions upon the revenue of the utility company. The plaintiffs accepted the terms of the franchise ordinances within the time- specified in each.

On August 1, 1968, the city adopted an ordinance which imposed an additional tax against each of the plaintiffs which provided for an additional two per cent of the gross revenue of each plaintiff. A subsequent ordinance extended the additional tax.

The new tax was imposed upon the plaintiffs but not upon the other taxpayers.

The plaintiffs attack the validity of the ordinance upon two grounds: (1) the franchises granted by the city to the plaintiffs and the acceptance of the conditions thereof by the plaintiffs formed contracts, and that the levy of additional taxes in violation of the “in lieu” provisions of the contracts impaired the obligation of each contract in violation of the provisions of' the Constitution of the United States and the Constitution of Utah; (2) the revenue ordinance is invalid in that it applies only to the plaintiffs and is therefore discriminatory.

-In dealing with the plaintiffs’ first contention that the subsequent revenue ordinance of Ogden City impaired the obligations of the prior contracts we are first faced with the problem of determining whether or not the city was authorized to enter into contracts which would limit the city’s power to assess and collect taxes. At the outset we must make a determination of whether the Constitution and statutes of Utah give a municipality the power to barter away its power to raise revenue by taxation. Cities are creatures of the legislature and can exercise no power except that granted. We must first determine whether Ogden City was expressly granted the right to enter into the “in lieu” provisions of the ordinances granting to the plaintiffs franchises to carry on their separate services within the limits of the city. We find no specific provision in the Constitution nor the statutes dealing with franchises, nor have the parties herein called our attention to any such provisions. The power of a city to grant the franchises must emanate, if at all, from the provisions of Section 10-8-14, U.C.A.19S3, which provides as follows:

They may construct, maintain and operate waterworks, gas works, electric light works, telephone lines or street railways, or authorize the construction, maintenance and operation of the same by others, * * *.

The language of the statute contains no grant of authority to the city to enter into any contract dealing with taxation. The only other statute dealing with the powers of cities to levy taxes is Section 10-8-80, U.C.A.1953, which provides:

They may raise revenue by levying and collecting a license fee or tax on any 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.

We find no language in the statutes above referred to and quoted which might be construed as a grant of power to the city to enter into a contract which would exempt a person or corporation from the payment of taxes thereafter levied for a period of years. There being no grant of authority on the part of the city to enter into the “in lieu” provisions of the franchises, we are compelled to conclude that those provisions were beyond the powers of the city and therefore invalid.¹

As a second assignment of error the plaintiffs contend that the ordinance by levying an additional tax on businesses supplying telephone, gas, or electric energy service is a discriminatory classification and applies only to the plaintiffs. The plaintiffs urge the view that the tax applies only to a small group of businesses which fall within the classification of public utilities. Other public utilities such as common carriers of passengers, freight or cargo are not included in the questioned ordinance. The plaintiffs comprise a distinct class of businesses within the public utility field which supplies to the public a service or product which is consumed or used by the public. We therefore conclude that the revenue ordinance which classifies plaintiffs as a separate class of public utility for the purpose of taxation is reasonable and not discriminatory.²

The decision of the court below is affirmed. No costs awarded.

ELLETT, and CROCKETT, JJ., concur.

1 . State ex rel. City of St. Paul v. St. Paul City Ry. Co., 78 Minn. 331, 81 N.W. 200; Walla Walla v. Walla Walla Water Co., 172 U.S. 1, 19 S.Ct. 77, 43 L.Ed. 341; Elizabeth City v. Bank, 150 N.C. 407, 64 S.E. 189; Milwaukee Elect. R. & Light Co. v. Railroad Comm., 153 Wis. 592, 142 N.W. 491; Spoerl v. Township of Pennsauken, 14 N.J. 186, 101 A.2d 855, 47 A.L.R.2d 1177 (Headnote 4), 36 Am.Jur.2d, p. 730, § 7.

2 . Illinois Bell Tel. Co. v. Ames, 364 Ill. 362, 4 N.E.2d 494; In Re Opinion of the Justices, 84 N.H. 559, 149 A. 321; Salt Lake City v. Christensen Co., 34 Utah 38, 95 P. 523.