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power (section 1681, Comp. Stat. supra) spe- ! cifically gives the double power to tax and regulate many businesses and occupations, but does not specifically mention the vocation or occupation, the subject of the ordinance under consideration, but it is claimed to be covered by the general clause contained in the section, viz.:

"To raise revenue by levying and collecting a license tax on any business, or calling, or any corporation, and regulate the same by ordi

nance."

It is evident that the primary object of this clause is to give the power to tax for revenue occupations and callings, and the regulation is only incidental to the taxing power conferred; while it is equally evident that the object of the ordinance is the regulation of those following the occupation of laying concrete or cement sidewalks.

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These rights, however, are under the maxim, "Sic utere tuo ut alienum non lædas," subject to reasonable restraint and regulation as are required to protect the public health, safety, morals and general welfare, and this is the police power; but all such regulations, to be a valid exercise of the police power, must tend "in some degree towards the prevention of offenses, or the preservation of the public health, morals, safety, or welfare. It must be apparent that some such end is the one actually intended, and that there is some connection between the provisions of the law and such purpose." liver v. Blizzard, supra, 143 Ky. 773, 137 S. W. 509, 34 L. R. A. (N. S.) 893, 894, 17 R. C. L. p. 542. "To justify the state in thus interposing its authority in behalf of the public, it must appear, first, that the interests of the public generally, as distinguished from those of a particular class, require such interference; and, second, that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals. The Legislature may not, under the guise of protecting the public interests, arbitrarily interfere with private business, or impose unusual and unnecessary restrictions upon lawful occupations." Lawton v. Steele, 152 U. S. 136, 14 Sup. Ct. 500, 38 L. Ed. 385. "It is not sufficient that the public sustains harm from a certain trade [1] The right to follow any of the common or employment as it is conducted by some occupations of life or to earn one's living in engaged in it. Because many men engaged any innocent vocation without let or hin- in the calling persist in so conducting the drance is one of those inalienable rights cov- business that the public suffers and their ered by the statements in the Declaration acts cannot otherwise be effectually controlof Independence and secured to all those liv-led is no justification for a law which proing under our form of government by the liberty, property, and happiness clauses of the national and state Constitutions. 6 R. C. L. p. 266, and cases cited; Butchers' Union Slaughter House Co. v. Crescent City Live Stock Co., 111 U. S. 746, 4 Sup. Ct. 652, 28 L. Ed. 585; Tolliver v. Blizzard, 143 Ky. 773, 137 S. W. 509, 34 L. R. A. (N. S.) 890; Bessette v. People, 193 Ill. 334, 62 N. E. 215,

"The general rule deducible from the adjudications is that, the power of the municipal corporation to impose a license tax, either as a police regulation or for revenue, is made to depend upon the reasonable construction of the charter provision or the legislative act conferring the authority; and if it appears that such power has not been granted in unequivocal terms, invoking the rule of strict construction, the right to levy the tax will be denied." McQuillin, Municipal Corp. vol. 3, § 987; also Dillon, Munic. Corp. (5th Ed.) § 667; 17 R. C. L. p. 525.

56 L. R. A. 558; 12 C. J. 921, and cases cited in notes; Commonwealth v. Beaulieu, 213 Mass. 138, 99 N. E. 555, Ann. Cas. 1913E, 1080. In the case of Butchers' Union Slaughter House Co. v. Crescent City Live Stock Co., supra, Justice Field, on page 757 of 111 U. S., on page 661 of 4 Sup. Ct., 28 L. Ed. 585, said:

"It has been well said that, "The property which every man has in his own labor, as it is the original foundation of all other property, so it is the most sacred and inviolable. The patrimony of the poor man lies in the strength and dexterity of his own hands, and to hinder his employing this strength and dexterity in what manner he thinks proper, without injury to his neighbor, is a plain violation of this most sacred property. It is a manifest encroachment upon the just liberty both of the workman and of those who might be disposed to employ him. As it hinders the one from working at what he thinks proper, so it hinders the others from employing whom they think proper.' Adam Smith's Wealth of Nations, bk. I, c. 10."

hibits an honest man from conducting the business in such a manner as not to inflict injury upon the public." Tolliver v. Blizzard, supra. "In order that a statute or ordinance may be sustained as an exercise of the police power, the courts must be able to see that the enactment has for its object the prevention of some offense or manifest evil or the preservation of the public health, safety, morals, or general welfare, that there is between the assumed purpose of the enactsome clear, real, and substantial connection ment and the actual provisions thereof." 12 C. J. 929; In Matter of Jacobs, 98 N. Y.

98, 50 Am. Rep. 636.

The police power has been termed the "law of overwhelming necessity." Dunne v. People, 94 Ill. 120, 34 Am. Rep. 213. And even where the matter under consideration has been held a proper subject for regulation, all regulations must be reasonable and only go so far as are reasonably necessary to effect the legitimate object of the public protection sought. 12 C. J. 934. "There must be reasonable ground for the police interference and also the means adopted must be reasonably necessary for the accomplishment of the purpose in view. So in all cases where the interference affects property and

goes beyond what is reasonable by way of struct or remove any sidewalk without first interfering with private rights, it offends obtaining a permit from the city engineer, against the general equality clause of the and prescribes that the permit shall be filed Constitution; it offends against the spirit with a return thereon showing date of comof the whole instrument." Bonnett v. Val- pletion of the work; (section 732) that the lier, 136 Wis. 193, 202, 116 N. W. 885, 17 construction of all sidewalks and curb of L. R. A. (N. S.) 486, 491, 128 Am. St. Rep. artificial stone shall be constructed under 1061. "A municipality has power to enact the supervision of the city engineer or his reasonable ordinances only, and that the inspector, and shall at all times be subject court will annul ordinances which are un- to the inspection of the city engineer or his reasonable, illegal, or repugnant to law is inspector; (section 720) that all sidewalks a doctrine uniformly sustained. Jones v. hereafter constructed, reconstructed, or placSanford, 66 Me. 585; State v. Robb, 100 ed within the city of Sheridan shall be of Me. 180, 4 Ann. Cas. 275, 60 Atl. 874." State granite, cement, concrete, asphaltum, vitriv. Starkey, 112 Me. 8, 90 Atl. 431, Ann. Cas. fied brick or some other hard and incombus1917A, 196, 198. "A statute passed pursuant tible material with stone or cement curb not to the police power should be reasonable. less than five inches thick, and that all ceIts real purpose must be to protect the pub-ment or concrete sidewalks shall be constructlic health, morals or general welfare. A ed in accordance with the specifications and statute cannot, under the guise of the police rules in relation thereto prepared by the city power, but really to effect some purpose not engineer, and approved by the city council, within such power, arbitrarily interfere with and making it unlawful to construct any a person or a property right. The statute such sidewalk in any other manner than in under consideration unnecessarily interferes accordance with such specifications or rules, in several particulars with that liberty of and also making it unlawful to construct any person and property guaranteed by the Con- sidewalk of a different character than constitution." People v. Ringe, 197 N. Y. 143, crete or cement, except in accordance with 149, 90 N. E. 451, 27 L. R. A. (N. S.) 528; 18 specifications and rules applicable to such Ann. Cas. 474. And such regulations must construction prepared by the city engineer not be such as to discriminate between per- and approved by the city council. sons engaged in the same or like vocations or they will be void as "class legislation." People v. Weiner, 271 Ill. 74, 110 N. E. 870, L. R. A. 1916C, 768, 779, Ann. Cas. 1917C, 1065; 28 Cyc. 370, 390.

[2-5] Viewing the ordinance in question in the light of the above principles, we are constrained to hold that it is unconstitutional and void because: First, that the vocation of cement contractor is not a proper subject of police regulation not affecting either the health, morals, safety, or welfare of the public generally so as to be a necessary subject of regulation; second, that no express power to regulate this vocation is conferred upon the city, and none can necessarily be implied from the powers granted; third, that, were the power given, the regulations required are unreasonable, especially in requiring a maintenance bond to run five years; fourth, that the ordinance is discriminatory and class legislation in that it requires a fee and bond from one laying concrete or cement sidewalks and requires neither from those laying sidewalks composed of asphalt, granite, vitrified brick or any other hard and incombustible material. As said in Gray v. Omaha, supra:

"It should not be sustained, unless vitally necessary to the exercise by the city of the power to designate the material and manner of construction of its walks. No adequate reason why it is essential to the exercise of this power is pointed out in the argument of the defendant; and we have been unable to conceive one."

The other ordinances of the city of Sheridan introduced in evidence provide (section

[6] It is seen that the power of the city to designate the materials, manner of construction, and inspection thereof has been exercised and provided for in ordinances that do not provide for a license fee and bond and cover sidewalks of all kinds of materials that are permitted to be used. The right of the relator to follow the business of laying concrete sidewalks and make his living that way cannot be disputed, and unless it can be shown that this work affects the public health, morals, safety, or welfare, the state would have no power to restrict or prohibit it, and no power to delegate such power to a municipality. But the Legislature has not attempted to grant such power. We are not referred to any statute that gives the power to regulate the vocation of laying cement sidewalks, nor to any from which that power by necessary implication can be inferred. In the case of Gray v. Omaha, supra, it was decided that the ordinance was void because the right was not granted to regulate, and it is said (14 L. R. A. p. 1034):

"The power to pass a city ordinance must be vested in the governing body by the Legislature in express terms, or be necessarily or fairly implied in and incident to the powers expressly granted, and must be essential to the declared purpose of the corporation; not simply convenient, but indispensable. Dill. Mun. Corp. (1st Ed.) § 55; Anderson v. Wellington, 40 Kan. 176, 2 L. R. A. 110, 10 Am. St. Rep. 175, 19 Pac. 719. Powers encroaching upon the rights of the public or of individuals must be plainly and literally conferred by the charter. State, Breninger, Prosecutor, v. Belvidere, 44 N. J. Law, 350. The power to license must be plainDill. Mun. Corp. (1st Ed.) § 295; Dunham v. ly conferred, or it will not be held to exist.

v. Stodder, 2 Cush. [Mass.] 562, 48 Am. Dec. | bar, was the case of Gray v. Omaha, supra, 679; Mays v. Cincinnati, 1 Ohio St. 268;_ St. | and in that case it is said: Paul v. Traeger, 25 Minn. 248, 33 Am. Rep. 462."

But it might as well have been held in addition that it was not within the police power of the state to grant such a power. Counsel for the defendant city in his brief criticizes this Omaha case, and infers that the city of Omaha had no power to license occupations either by way of raising revenue or police power regulations. The charter provisions governing the city of Omaha in this matter are found in Cobbey's Annotated Statutes of Nebraska 1907, vol. 2, § 7678, contained in chapter 37, under the heading "Municipal Corporations," "Omaha Charter," which is as follows:

"The mayor and council shall have power to tax for revenue, license and regulate pawn brokers, peddlers, auctioneers, brokers, hawkers, commission merchants, showmen, jugglers, innkeepers, liquor dealers, toll-bridges, ferries, insurance, telegraph, and express companies and vendors of patents; such tax may include both a tax for revenue and license. The mayor and city council shall have power to raise revenue by levying and collecting a tax on any occupa- | tion or business within the limits of the city and regulate the same by ordinance. All such taxes shall be uniform in respect to the class upon which they are imposed: Provided that all scientific and literary lectures and entertainments shall be exempt from taxation as well as concerts and all other musical entertainments given exclusively by the citizens of the city. It shall be the duty of the city clerk to deliver to the city treasurer the certified copy of the ordinance levying such tax and the city clerk shall append thereto a warrant requiring the city

treasurer to collect said tax."

The power therein given is certainly as broad as the provisions of the Wyoming section 1681, supra.

The requirement of a maintenance bond of $1,000 to guarantee all work for a period of 5 years is certainly an unreasonable regulation and restriction upon those engaged in the vocation of mixing and laying cement sidewalks, and is not necessary for the safety or welfare of the public. Counsel for the city state that "the requirement of a bond in connection with a license is a usual, customary, and reasonable one." We cannot agree with this statement, and the cases referred to by counsel are few, and all or nearly all the cases cited under this statement in his brief were for a bond conditioned on the payment of a license tax or in licensing nonuseful businesses, running pool halls and the like, conditioned on obeying the city ordinances, regulations, hours, forbidding minors to frequent such places and the like, and in several of these cases referred to the bond was declared void beyond the term of the license. In fact the requirement of a bond guaranteeing work for five years is so unusual a regulation accompanying a license of occupations under an alleged police power that the only case that has come to our notice where it was attempted, beside the case at

"The only question involved is the right of the city to compel the plaintiff to comply with the requirements of the ordinance as a condition of following his vocation. We think the restrictions imposed by the ordinance are not only unreasonably oppressive, but unnecessary to the exercise of the power to designate the material and manner of construction of such walks. Its provisions must prove onerous to the individual of slender means engaged in the vocation sought to be regulated. He is required to pay a fee of $10 for each year or fraction of a year, a not inconsiderable tax upon a small business. In addition to this he is required to give annually a bond, upon which his sureties will be liable for a period of five years, so that, if he continues in business for that period of time, he will be compelled to furnish five distinct bonds, representing an aggregate liability of $10,000, which is obviously impracticable, unless the applicant be of substantial means and established credit."

In the Omaha ordinance the license fee was $10, and the bond was $2,000, instead of $15 and $1,000, respectively, in the Sheridan ordinance. This ordinance under consideration has the effect of preventing the following of his usual vocation by the relator and others situated like him as regards the possession of property. It was shown by the evidence that the relator could not get a bond from a surety company because he was not possessed of sufficient property real and personal, and although the ordinance does not require a surety company bond the evidence discloses that the officers of the city informed the relator that they preferred that kind of a bond to a personal one. it can well be seen that the difficulty in securing a surety bond because of the lack of property to some considerable extent would operate against obtaining a proper personal bond to guarantee the good condition of a sidewalk for five years, perhaps after the principal had ceased to reside in the city.

And

It is clearly class legislation. The ordinance of the city permits sidewalks to be constructed of asphalt, granite, vitrified brick, and other hard and incombustible material, but requires no license or bond from those laying such sidewalks. While it is established from uniform authority that reasonable and necessary classification is permitted without violation of constitutional provisions, "the classification must be reasonable in view of the object sought to be accomplished. The discrimination must rest upon some reasonable ground of difference between the persons or things included and those excluded, having regard to the purpose of the legislation, and within the sphere of its operation, the statute must affect all persons similarly situated." State v. Sherman, 18 Wyo. 169, 176, 105 Pac. 299, 27 L. R. A. (N. S.) 898, Ann. Cas. 1912C, 819. And the uniform rule is stated by this court in the opinion by Justice Beard in the case

of State v. Le Barron, 24 Wyo. 519, on page | 147 Cal. 763, 82 Pac. 429, 2 L. R. A. (N. S.) 526, 162 Pac. 265, on page 266:

"As to classifications which are permitted and which do not violate constitutional provisions it is the uniform rule that the reason for the classification must inhere in the subject-matter, and must be natural and substantial, and must be one suggested by necessity, by such difference in the situation and circumstances of the subjects as to suggest the necessity or propriety of different legislation with respect to them. 6 R. C. L. § 374. Or, as well stated in State ex rel. Richards v. Hammer, 42 N. J. L. 435: The true principle requires something more than a mere designation by such characteristics as will serve to classify, for the characteristics which thus serve as a basis of classification must be of such a nature as to mark the objects so designated as peculiarly requiring exclusive legislation. There must be substantial distinction, having a reference to the subject-matter of the proposed legislation, between the objects or places embraced in such legislation and the objects or places excluded. The marks of distinction on which the classification is founded must be such, in the nature of things, as will, in some reasonable degree, at least, account for or justify the restriction of the legislation.' That principle is fully sustained by the decision of the Supreme Court of the United States (Connolly v. Union Sewer Pipe Co., 184 U. S. 540, 22 Sup. Ct. 431, 46 L. Ed. 679), where the decisions are cited and reviewed."

588, 3 Ann. Cas. 878; Vitrified Brick & Tile Co. v. Perry, 69 Kan. 297, 76 Pac. 848, 66 L. R. A. 185, 1 Ann. Cas. 936, 937. In the last above cited case the court said:

"The right to follow any lawful vocation and to make contracts is as completely within the protection of the Constitution as the right to hold property free from unwarranted seizure, or the liberty to go when and where one will. One of the ways of obtaining property is by contract. The right, therefore, to contract cannot be infringed by the Legislature without violating the letter and spirit of the Constitution. Every citizen is protected in his right to work where and for whom he will."

[8] Counsel for plaintiff in error complains of that portion of the judgment of the court below which taxes costs against the relator, and quotes section 4647 of Comp. Stat. Wyo. 1910, which provides that in other actions than those specifically mentioned in the preceding section the costs may be equitably taxed in the discretion of the court.

Counsel must have overlooked section 5068, which is contained in chapter 324, under the title "Mandamus," and reads as follows:

"If judgment be given for the defendant, all costs shall be adjudged against the relator."

This is a mandatory provision as to costs in mandamus cases, and the court having found the ordinance void, there could be no right to the writ or the relief prayed for, and the judgment had to be for the defendant. Under these conditions and this statute the court had no discretion to tax the costs except against the relator.

No reason why sidewalks constructed of asphalt or other hard and incombustible material are not as liable to deteriorate or crumble within five years as one laid of cement or concrete has been pointed out to us, and we do not conceive any, and imperfections in one kind would be as dangerous to the public as another. This ordinance is not an attempt to regulate a vocation as such, and therefore does not pretend that the vocation is one so connected with the health, safety, and general welfare of the public as requires restriction and regulation. A cement contractor is not prevented under its provisions, without a license, from mixing and laying cement and concrete either on walks or for other purposes on private property or any other place except on side- INTERNATIONAL HARVESTER CO. OF walks on the streets.

[7] There is still another reason why this ordinance is void. It interferes with the free right to contract. The statutes and the other ordinances of the city of Sheridan require the property owner to either construct or pay the cost of the construction or repair of the sidewalks adjoining his property, and the evidence shows that the city authorities required him to do so. This ordinance by express terms forbids the contracting by or with any one who has not procured the license provided by the ordinance, and no license could be issued except to those who could furnish the bond. Thus the property owner was required to stand the expense of construction and repair while he was prevented from hiring to do the work the one who, in his judgment, was perhaps the most competent to do good and lasting work. 12 C. J. 919; Ex parte Drexel,

For the foregoing reasons, the findings and judgment of the lower court must be affirmed.

Affirmed.

POTTER, C. J., and BEARD, J., concur.

(25 Wyo. 367)

AMERICA v. JACKSON LUMBER
CO. et al. (No. 872.)

(Supreme Court of Wyoming. Jan. 21, 1918.)
1. STATUTES 188 CONSTRUCTION
SENCE OF AMBIGUITY.

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Even in the absence of the statute fixing rule of construction, if the language employed in an act is plain and unambiguous there is no room for construction.

2. EXCEPTIONS, BILL OF 37-BILL OF EXCEPTIONS - REDUCTION OF EXCEPTIONS TO WRITING-STATUTE.

Under Comp. St. 1910, § 4595, providing that the party objecting to the decision must except at the time the decision is made, and that time may be given to reduce the exception to writing, but not beyond the first day of the next succeeding term, the exception must be reduced to writing at the time, unless further time is asked and granted.

3. EXCEPTIONS, BILL OF 37-BILL OF EXCEPTIONS-PRESENTATION OF EXCEPTION TO COURT-STATUTE.

Under Comp. St. 1910, § 4598, the time within which an exception must be presented to

the court or judge is within the time given for allowance, and the party excepting has not an indefinite time, as until the adjournment of the court for the term, within which to do so.

4. APPEAL AND ERROR

859-WRIT OF ERROR-ERROR APPARENT ON RECORD OR ERROR OF FACT.

At common law a writ of error might be had either for error apparent on the record or for an error of fact, but not for an error of law not appearing on the record.

5. STATUTES 181(1) CONSTRUCTION-INTENTION OF LAWMAKERS.

It is incumbent on the Supreme Court to construe the statutes and laws of the state according to what it is convinced was the true intent of the lawmakers.

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TRIAL.

A bill of exceptions which does not purport to have been presented for allowance until months after the trial was ended by denial of motion for new trial is not properly a part of the record.

Error to District Court, Sweetwater County; John R. Arnold, Judge.

Action by the International Harvester Company of America against the Jackson Lumber Company, a copartnership, Victor Smith, and others. To review a judgment for defendants, plaintiff brings error, and defendants move to strike the bill of exceptions from the record and to dismiss the proceedings. Bill of exceptions stricken, and proceedings in error dismissed.

T. S. Taliaferro, Jr., and W. A. Muir, both of Rock Springs, for plaintiff in error. Walter B. Dunton and D. A. Reavill, both of Rock Springs, for defendants in error.

BEARD, J. This case is before the court at this time upon the motion of defendant in error to strike the bill of exceptions from the record and to dismiss the proceedings in error upon the grounds that the bill of exceptions was not presented for allowance within the time allowed by law, and was not so presented until after the filing of the petition in error. The motion for a new trial was denied March 31, 1916, to which decision of the district court in denying said motion the plaintiff at the time duly objected and excepted; but it does not appear, either in the bill or the certificate of the judge allowing the same, that time was asked or given within which to reduce the exceptions to writing and present

the same for allowance. The bill was allowed July 10, 1916. The petition in error was filed April 4, 1916.

The contention of counsel for plaintiff in error is that, as the bill was allowed during the term at which the motion for a new trial was denied, it was within time, and no order of the court giving time to reduce the exceptions to writing and to present the same to the court or judge for allowance was necessary.

The question must be determined by the proper construction to be placed upon the statutes in force at that time, and which must control. Those statutory provisions read as follows:

Section 4595, Comp. Stat. 1910:

"The party objecting to the decision must except at the time the decision is made; and time may be given to reduce the exception to writing, but not beyond the first day of the next succeeding term."

Section 4598, Id.:

"When the decision is not entered on the record, or the grounds of objection do not sufficiently appear in the entry, or the exception is to the opinion of the court on a motion to direct a nonsuit, to arrest the testimony from the jury, or for a new trial for misdirection by the court to the jury, or because the verdict, or if against the law or the evidence, the party exa jury was waived, the finding of the court, is cepting must reduce his exception to writing thereof in vacation, within the time given for and present it to the court, or to the judge allowance. If true, it shall be the duty of the of the court before whom the cause was tried, court, if presented in open court, or the judge if presented in vacation, to allow and sign it, whereupon it shall be filed with the pleadings as a part of the record, but not spread at large upon the journal. If the writing is not true the court or the judge in vacation shall correct it, or suggest the correction to be made and it shall then be signed as aforesaid."

[1] The Legislature has prescribed rules of construction of statutes. Section 3617, Comp. Stat. 1910:

"The construction of all statutes of this state construction shall be plainly repugnant to the shall be by the following rules, unless such intent of the Legislature: 1. Words and phrases shall be taken in their plain or ordinary and usual sense, but technical words and phrases having a peculiar and appropriate meaning in law shall be understood according to their technical import."

The rule was considered in Rasmussen v. Baker, 7 Wyo. 117, 128, 50 Pac. 819, 821 (38 L R. A. 773), where it was said:

"If the language employed is plain and unambiguous, there is no room for construction." (Citing and reviewing authorities.)

Such also is the rule in the absence of a statute on the subject, and has been so repeatedly stated by the courts and text-writers that the citation of authorities would seem to be superfluous. It is clearly and concisely stated in Lake County v. Rollins, 130 U. S. 662, 670, 9 Sup. Ct. 651, 652 (32 L. Ed. 1060):

in a statute, a contract, or a constitution, the "To get at the thought or meaning expressed first resort, in all cases, is to the natural signification of the words, in the order of grammatical

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

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