State v. Southwestern Bell Tel. Co. (Kan.) 26
State, Stover v. (Ariz.).

.1146

809 Wright's Estate, In re (Cal.).

White, Saline Valley Salt Co. v. (Cal.).. 820 Wrought Iron Range Co. v. Zeitz (Colo.).. 181 Wienrich, State v. (Mont.)

[Cases in which rehearings have been denied, without the rendition of a written opinion, since the publication of the original opinions in previous volumes of this Reporter.]

THE

PACIFIC REPORTER

VOLUME 170

The city of Sheridan is a city of the first CEMENT CONTRAC- class that has adopted a commission form of An ordinance of a city of the first class pur-government, and acting, as is claimed, under porting to regulate the business of cement conthe authority conferred by section 1681, tractor was discriminatory and class legislation Comp. Stat. Wyo. 1910, had passed and as requiring a fee or bond from one laying a con- adopted the following ordinance: crete or cement sidewalk and requiring neither from those laying sidewalks of asphalt, granite, vitrified brick, or other hard and incombustible

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 170 P.-1

rated, together with the residence and chief! The trial court found that section 440, chapoffice of such person, firm, or corporation. That ter 25, of the Compiled Ordinances of the any such person, firm or corporation obtaining such license shall give a bond in the amount of City of Sheridan, requiring a license fee of $1,000.00 to the city of Sheridan, with good and $15 and $1,000 maintenance bond of persons sufficient surety conditioned for the faithful per- engaged in the business of constructing sideformance of all such work in accordance with walks of concrete, cement, or other artificial the plans and specifications therefor and the directions of the city engineer, and in accord- stone is void, and that the city of Sheridan ance with the ordinances of the city and guar- had no authority to pass the same, and no auanteeing all such work done by him under such thority to enforce the same, and that the license to remain in good condition for 5 years relator has exhibited no clear right to the after the completion thereof, and protecting the city or any person or corporation who may be writ or the relief prayed for, or any relief, required by the city to have such work done, and rendered judgment dismissing the petiagainst any loss from defects in said work ap- tion, and taxed costs in the amount of $8.45 pearing during the said 5 years (injuries from fire or other unavoidable causes excepted)." against the relator, and $6 against the respondents. Both parties excepted to the findings and judgment in so far as they were adverse to the parties respectively, and a motion for a new trial alleging that the judgment is not sustained by the evidence and is contrary to law was filed on behalf of the relator, and was overruled, and the case is brought here on error by the relator.

Section 1681, Comp. Stat. 1910, is included in chapter 121, which provides for cities of the first class, and reads as follows:

"They shall have power to regulate, license and tax hotels, restaurants and eating houses; to define by ordinance who shall be considered transient merchants; to regulate, license and tax their sales, and those of auctioneers, bankrupt and dollar stores, and the like; but the exercise of such power shall not interfere with sales made by any person required by law to sell real or personal property; to regulate, license and tax peddlers, plumbers, bill-posters, itinerant doctors, itinerant physicians and surgeons, junk and second-hand dealers, scavengers, pawnbrokers and persons receiving actual possession of personal property as security for loans; to prohibit pawnbrokers and junk or second-hand dealers purchasing or receiving from minors any property, and provide for the examination of premises of such persons for the purpose of discovering stolen property; to license and regulate employment offices and intelligence offices; to raise revenue by levying and collecting a license tax on any business, or calling, or any corporation, and regulate the same by ordinance; to regulate, license or prohibit circuses, menageries, theaters, theatrical exhibitions, shows and exhibitions of all kinds; but lectures on scientific, historical or literary subjects shall not come within the provisions of this section." It is established by the evidence that the relator was engaged in the occupation of mixing and laying cement and concrete sidewalks, and had been engaged in such occupation for more than ten years, and is what is termed by the witnesses a "cement contractor"; that he was competent and skilled in this occupation, and that the work he had done was of a first-class character; that he made application for a license in due form, filing the same with the city clerk, and paid $15.50, the license fee prescribed by the ordinance, and 50 cents required to be paid for filing the application, which money was still retained by the city at the time of the hearing in the court below; that he did not give or tender any bond as provided in the ordinance; that he had applied for a bond to an agent of a surety company, but had been refused a bond because he could not make a sufficient showing as to his financial standing, he not being possessed of any real estate or bank account; that the minutes of the meeting of the city council of the city of Sheridan held March 29, A. D. 1915. contain the following: "The application of C. W. Sampson for cement contractor's license was read and action deferred until the filing of cement contractor's

The judgment of the lower court is not satisfactory to either party. The city, although it did not institute any proceedings in error, while not objecting to the judgment dismissing the petition, contends here that the ordinance declared void is a valid exercise of the powers conferred on the city by the statute and should be declared to be valid and in full force and effect. While the relator is willing to have the ordinance sustained except as to the requirement of giving the bond which he claims is an unreasonable regulation, and therefore void, and such provision being easily separated from the rest of the requirements of the ordinance, it can be declared void and the rest of the ordinance can stand, and a cement contractor's license should be issued to him without his being required to furnish the bond as provided in the ordi

nance.

This is a case of first impression in this court, the particular questions involved never having before arisen in this state, and in fact the question of the right of a municipality under the police power to regulate the business and occupation of mixing and laying cement or concrete sidewalks has been before the courts as found by an exhaustive search of the reported cases in one case only, viz. Gray v. City of Omaha, 80 Neb. 526, 114 N. W. 600, 14 L. R. A. (N. S.) 1033. There is a sharp distinction between a license for revenue and one of regulation under the police power; the first named being a tax and construed under the principles and rules governing taxing powers, the latter under the police power looking toward the health, morals, safety, or general welfare of the community, and it is generally held that power to regulate occupations does not in itself give the power to license for revenue or tax the same occupations, or that a given power to license for revenue does not in itself give power to license for regulation under the police power.