matter in controversy and by issuing process can acquire jurisdiction of the person of the defendant, and have cited decisions of able courts which sustain this view. To so construe section 2899 would, in effect, render abortive section 2888 of the same chapter. This we are not permitted to do, provided the two sections can by any reasonable construction be made to harmonize. This rule of statutory construction is so well established and has been so universally followed by the courts that we deem it unnecessary to cite authorities in support of it. The cause of action, if any existed in this case, arose because of the defendant's default in failing to comply with and carry out his part of the agreement hereinbefore mentioned. In other words, he violated a legal duty that he owed to the plaintiff and which was imposed upon him by the terms of the contract. Pomeroy, in his work on Code Remedies, sec. 453, tersely, and, as we think, correctly, defines a cause of action to be: "A primary right possessed by the plaintiff and a corresponding primary duty devolving upon the defendant; a delict or wrong done by the defendant which consisted in a breach of such primary right and duty; a remedial right in favor of the plaintiff, and a remedial duty resting on the defendant springing from the delict; and, finally, the remedy or relief itself. Every action, however complicated or however simple, must contain these essential elements. Of these elements the primary right and duty and the delict or wrong combined constitute the cause of action." And again, in section 775 of the same work, the author says: "The 'cause of action' consists in, first, the primary right, and the facts from which it flows; and, second, the breach of that right, and the facts constituting such breach. These, taken together, create a remedial right and are the cause of action." In the case of Bach v. Brown, 17 Utah 435, 63 Pac. 991, in an opinion written by Mr. Justice Bartch, it is said: 66 'Cause of action,' in the sense here indicated, is synonymous with 'right of action,' and includes the omission or act without which no right of recovery could exist. In this case it includes the omission which constituted the violation of duty agreed to be discharged, and arose at the time when and place where that duty was to be discharged . . That which gives cause for complaint is the breach. Hence, whenever the breach occurs, whether by commission or omission, the cause of action arises; and, when the contract is to be performed at a place stipulated, the act or omission, which is the ground work for complaint, will be regarded as having occurred at that place." (Bliss, Code Pleading, sec 113.) Applying the foregoing principles of law, as announced by such able writers as Pomeroy and Bliss, and as declared by this court in Bach v. Brown, supra, it necessarily follows, as we have hereinbefore stated, that the wrong out of which the cause of action alleged in the complaint arose was defendant's failure to perform his part of the agreement. That is, it was the wrong done, the legal duty violated by defendant in omitting to carry out his part of the contract at the place where the contract was to be performed. The contract in this case does not fix the place of performance. The court, however, found that the contract was made in South Dakota, and we think the record supports the finding. It appears that when E. A. Tripp drafted and signed the contract he had no power of attorney or authority of any kind from his brother, R. B. Tripp, to make the contract. The record shows that the contract was at no time signed by Groesbeck. After the contract was drawn and signed by E. A. Tripp, he immediately forwarded it by mail to R. B. Tripp at his home in South Dakota and informed him of what had been done in the premises. R. B. Tripp replied by letter assenting to the contract. The case is therefore reduced to these propositions: A contract is written in Utah and is signed on behalf of the vendor, who resides in South Dakota, by one who is wholly unauthorized to make or sign the contract. Until the vendor signed the instrument purporting to be a contract, or assented to it, there was no contract. Until then the minds of the vendee and vendor did not meet, and the writing was but a mere offer or proposal. It matters not where the writing was drafted, whether in Utah. or elsewhere. The question is not where was the contract drafted or written, but where was it made? It is an elementary principle of the law of contracts that the place where the last act is done which is necessary to give validity to a contract is the place where the contract is made. (9 Cyc. 670; 2 Parsons on Contracts, 712; 3 Page on Contracts, 1718; U. S. Sav. & Loan Co. v. Beckley, 137 Ala. 119, 33 So. 934, 62 L. R. A. 33, 97 Am. St. Rep. 19.) In this case the last act necessary to make the writing in question a valid contract was done by R. B. Tripp in South Dakota when he assented to it. Had he withheld assent, there would not have been any valid contract between him and plaintiff's assignor. It is also a well-recognized rule that, when no place of performance is fixed by the contract, it will be presumed that the contract is to be performed where made. (3 Page on Contracts, 1717; 9 Cyc. 669; Lewis v. Headley, 36 Ill. 433, 87 Am. Dec. 227; First Nat. Bank of Toledo v. Shaw, 61 N. Y. 294; Pritchard v. Norton, 106 U. S. 137, 1 Sup. Ct. 102, 27 L. Ed. 104; 22 A. & E. Enc. Law (2d Ed.) 1325, and cases cited in note 2.) Counsel for appellant concede this to be the law. But they contend that the contract was made in this state, and that it is a Utah contract; and from this premise, in their brief, they reason as follows: "There being nothing in the contract fixing any other place of performance, the law made it performable in Utah and nowhere else. If it was thus to be performed in Utah, a failure to perform any part must inevitably result in constituting a breach in Utah and not elsewhere. From this flows the logical result that a cause of action, if any arose at all, must have arisen in Utah and not elsewhere. Logically no other conclusion is possible." (Citing Deseret Irr. Co. v. McIntyre, 16 Utah 398, 52 Pac. 628, and Brown v. Bach, supra.) But the court found that the contract was made in South Dakota, and was therefore a South Dakota contract, and, as we have stated, the record supports this finding. Therefore, applying the rule of law contended for by appellant, the correctness of which must be conceded, to the finding that the contract was made in South Dakota, it necessarily follows that the cause of action arose in that state and not in Utah. Hence the finding of the trial court, that the action was barred by the statute of limitations, must be sustained. The judgment is affirmed, with costs. cur. STRAUP, J., and CHIDESTER, District Judge, con No. 1896. Decided April 14, 1908 (95 Pac. 523). 1. CONSTITUTIONAL LAW-CONSTRUCTION OF CONSTITUTIONAL PROVI- 3. LICENSES-OCCUPATION TAX-CONSTITUTIONAL PROVISIONS-LEGIS 4. SAME EQUALITY AND UNIFORMITY. The constitutional provision imposing equality and uniformity of taxation has no application to an occupation or license tax, but is limited to a direct property tax, which is assessed and collected in the usual way. 5. SAME NATURE OF OCCUPATION TAX. A tax imposed on the carrying on of any business, trade, profession, or calling is not a direct tax on property. 6. SAME AMOUNT OF TAX REASONABLENESS CLASSIFICATION. Revised Statutes 1898, sec. 206, subd. 87, confers power on cities to raise revenue 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, and provides that all such license fees and taxes shall be uniform in respect to the class upon which they are imposed. Held, that an ordinance imposing a tax on any busi ness, trade, profession, or calling, and which divides the merchants and bankers into twenty-two classes, those carrying stock exceeding $500,000 to constitute the first class and pay an annual license tax of $500, the lowest class being limited to $200, which pays an annual license tax of $10, and the amount of $100,000, constituting the difference between each of the first five classes, was not in violation of the statute, the classification, while in one sense arbitrary, not being unreasonable. 7. TAXATION-POWER TO TAX-RESTRICTIONS-POWERS OF COURTS. Where neither the Constitution nor the statute imposes absolute restrictions on the power of taxation, the courts may not arbitrarily impose any, unless it clearly appears that the tax imposed is oppressive or clearly and unreasonably discriminatory, and thus is an abuse of the taxing power. 8. MUNICIPAL CORPORATIONS-ORDINANCES-OCCUPATION TAX-VALIDITY. That the penal provision of an ordinance providing for an occupation tax may be void, as imposing a penalty for failure to pay the tax which is not imposed for a failure to pay taxes generally, does not invalidate the remainder of the ordinance. APPEAL from District Court, Third District; Geo. C. Armstrong, Judge. The Christensen Company, a corporation, was convicted of violating a city ordinance imposing an occupation tax, and appeals. AFFIRMED. Zane & Stringfellow for appellant. Ogden Hiles and H. J. Dininny for respondent. FRICK, J. On the 27th day of November, 1906, the city, in due form, filed a complaint in the city court wherein it was alleged that the defendant was carrying on a certain business within said city without having complied with certain sections of an ordinance requiring the payment of a certain license tax as therein specified. The defendant, appellant here, demurred to the complaint. The case, by consent of the parties, was transferred from the city court to the district court |