releasing property, not exempt by the paramount law, from a portion of the tax, it has power to enact one abating all the tax on such property. The same legal principles apply in either case. The meaning and intent manifest from the constitution are that no property shall be relieved from the burden of maintaining the government, except such as was defined and specified for exemption by that instrument. No one would contend for a moment that the legislature of this state has power in express terms to exempt property from taxation, other than that enumerated for exemption in the constitution; and yet in the enactment of the statute in question the legislature has undertaken to indirectly exempt property not so enumerated. This is an attempt to do indirectly that which could not be done directly, and the statute therefore is in violation of the constitution, and is void, as in excess of legislative authority. To prevent the legislature from exempting property not included within the exemptions of the constitution, express words of inhibition were not necessary. The positive direction that "all property not exempt under the laws of the United States or under this constitution shall be taxed," and that the rate of assessment and taxation shall be "uniform and equal," so that "every person and corporation shall pay a tax in proportion to the value of his, her, or its property," with the enumeration of the property exempted, contains an implication against an exemption of any other property by the legislature. That direction itself operates as a restraint upon the legislative power. Cooley, Const. Lim. 209; Konold Railway Co., 16 Utah, 151, 51 Pac. 256.

V.

A similar question to the one herein con sidered was before the supreme court of California in Wilson v. Supervisors, 47 Cal. 91. In that case the board of supervisors, under a provision of a statute requiring the board to remit certain taxes in certain taxing districts, made an order remitting taxes in accordance with that statute. The court held that the order, and the clause of the statute under which it was made, were in violation of the provisions of the constitution that "taxation shall be equal and uniform throughout the state," and that "all property in this state shall be taxed in proportion to its value, to be ascertained as directed by law." The court, in its opinion, said: "An order which remits the taxes upon any property within the district causes the taxation within the district to be unequal, and is virtually an exemption of such property from taxation; and, if the order remits a part of the tax on such property, the result is the same, it differing only in degree. The clause of the twentieth section of the act above mentioned, providing that said board, in their discretion, and for good cause shown, shall remit such other tax in said district as may to them seem just and proper, and the order of the board of supervisors purporting to remit such

taxes, are, in our opinion, repugnant to the provisions of the constitution above cited, and must be held null and void." Cooley, Tax'n, 180, 204; City of Zanesville v. Richards, 5 Ohio St. 589; Bank v. Hines, 3 Ohio St. 1; Hunsaker v. Wright, 30 Ill. 146; Board v. Owens, 7 Colo. 467, 4 Pac. 795.

In arriving at the conclusion that the provision of the statute in controversy is null and void, we were not unmindful of the fact that the question whether an enactment of the legislature is void because of its repugnancy to the constitution is always one of much delicacy, and in a doubtful case should seldom, if ever, be decided in the affirmative. Where, however, the mind is convinced of the unconstitutionality of the law, the duty which devolves upon the court to declare it so is imperative, even where, as in this case, the statute appears to be in consonance with justice and humanity. That the law itself would be beneficent can be of no avail in this case, because its effect and operation would be to exempt property, against the mandate of the fundamental law. We are of the opinion that the demurrer to the petition must be overruled, and that a writ of prohibition must issue, restraining absolutely further proceeding under the clause of the statute herein declared void. It is so ordered.

ZANE, C. J., and MINER, J., concur.

(17 Utah, 106)

LYNCH et al. v. COVIGLIO et al. (Supreme Court of Utah. June 14, 1898.) TRIAL-TIME FOR FILING DECISION-FINDINGS OF FACT-CONCLUSIONS OF LAW-SPECIFIC PERFORMANCE.

1. Section 3379, Comp. Laws 1888, providing that, "upon a trial of a question of fact by the court, its decision must be given in writing and filed with the clerk within thirty days after the cause is submitted for decision," respecting the time of filing the decision, is directory merely; and a court therefore has the right to file its findings of fact, conclusions of law, and decision after the expiration of the time designated by the statute.

2. Where, in an action, questions raised in the cross complaint were of equitable cognizance, and amendments to the findings and decision were made at the hearing of the motion for a new trial, when the court yet had jurisdiction of the cause, and the amendments were not prejudicial to the rights of the appellants, the action of the court in making the amendments will not be regarded as reversible

error.

3. Where a claimant of government lands offers to give land to another on condition that the donee shall erect buildings thereon, and the purpose of the donor is the enhancing of the value of his adjoining property, and the donor puts the donee into possession thereof, who then erects buildings in accordance with the oral contract in performance thereof, such contract is thereby taken out of the statute of frauds, and a court of equity will enforce specific performance of the parol agreement on the part of the donor after he has secured the patent for the land.

(Syllabus by the Court.)

Appeal from district court, Third district; A. N. Cherry, Judge.

Ejectment by E. P. Lynch and others against Antonio Coviglio, G. B. Piano, and another. From a judgment for defendant Piano, plaintiffs appeal. Affirmed.

J. M. Denny, for appellants. Wiley. L. Brown, for respondents.

BARTCH, J. This is an action in ejectment to recover possession of a certain portion of the Junebug lode mining claim, Camp Floyd mining district, Tooele county, Utah. The portion claimed is described by metes and bounds in the pleadings, and it is admitted that at the time suit was brought, and trial had, the defendants were in the possession thereof. The court on July 14, 1897, rendered a decree and judgment in favor of the defendant G. B. Piano, and this appeal is from the decree and judgment.

The first question which we will consider is whether the court had jurisdiction to render judgment when it did. It appears from the record that the court failed to file its findings of fact, conclusions of law, and decision within 30 days after the cause was submitted; and counsel for the appellants insists that this was error, and that after the expiration of 30 days from the submission of the case the court had nothing before it which it was authorized, or had jurisdiction to, decide, and relies on section 3379, Comp. Laws Utah 1888, which provides, "Upon a trial of a question of fact by the court, its decision must be given in writing and filed with the clerk within thirty days after the cause is submitted for decision." This section is a verbatim copy of section 632 of the Code of Civil Procedure of California. The supreme court of that state has construed the provision respecting the time of filing the decision as being directory merely. McLennan v. Bank, 87 Cal. 569, 25 Pac. 760; Broad v. Murray, 44 Cal. 228; Vermule v. Shaw, 4 Cal. 214. We entertain no doubt of the correctness of this construction, and see no reason to depart therefrom, or to announce a new rule respecting the filing of decisions of questions of fact, which would be at variance with the established practice in this state. A court, therefore, trying a case without a jury, has jurisdiction to file its findings of fact, conclusions of law, and decision after the expiration of the time designated in the statute. It is true, however, that there should be no unnecessary delay in so doing.

It is also insisted for the appellants that the court erred in assuming jurisdiction to amend its findings of fact, conclusions of law, and decree. It appears that the amendments were made at the same time the motion for a new trial was overruled. Such practice respecting findings of fact and judgments, as is indicated by the record in this case, has several times been condemned by this court,

and ought no longer to be continued. Claw. son v. Wallace (Utah) 52 Pac. 11; Fisher v. Emerson, 15 Utah, 517, 50 Pac. 619. Inasmuch, however, as the questions raised in the cross complaint were of equitable cognizance, and as the amendments were made at the hearing of the motion for a new trial, when the court yet had jurisdiction of the cause, and as none of the amendments were prej udicial to the rights of the appellants, but all were favorable to them, we are not disposed to regard the action of the court as reversible error. Under these circumstances the granting of a new trial by this court would not be warranted. Mining Co. v. Jennings, 14 Utah, 221, 46 Pac. 1106; Pratalongo v. Larco, 47 Cal. 378; Wingate v. Ferris, 50 Cal. 105; Kahn v. Smelting Co., 102 U. S. 641.

It is further insisted for the appellants that the court erred in holding that the respondent Piano acquired title to the premises in question by virtue of an oral agreement between him and A. N. Butts, who, it appears, was the owner of the Junebug mining claim, of which the land in dispute forms a part, at the time of the making of the alleged agreement. The agreement set up in the cross complaint is to the effect that on September 1, 1893, A. N. Butts, then the owner and holder of the Junebug mining claim,not yet patented,-in consideration of secur. ing the beginning of a camp or mining town on the Junebug claim, agreed to give Piano that portion of the mining claim in dispute herein, on condition that Piano would erect or cause to be erected certain buildings or improvements thereon. Thereupon, as is alleged, Butts gave Piano possession of that portion of the claim; and, in pursuance of the agreement, Piano began, and afterwards, with the continued consent of Butts, completed, four residence buildings thereon, of the value of $1,400, all of which were constructed between September 1, 1893, and January 1, 1895. Afterwards a patent to the Junebug claim was issued to Butts. At the trial the court, among other things, found from the evidence that the agreement was made and entered into substantially as alleged, except that any mineral which might be found under the surface was reserved, together with the right to carry the same away, and that Butts put Piano into possession of the land in dispute; that Piano's possession was actual, open, and notorious, and known to all the parties to this action; and that Piano, under the contract, made lasting and valuable improvements on the property, and continued in the possession thereof until the trial of this suit. In the conclusions of law the court found that there had been such performance by Piano as to take the contract out of the statute of frauds, and that upon the patent issuing to Butts the title passed to and vested in Piano, subject only to the mineral rights, which remained in the patentee; and the court decreed the

title to the land in question to be in Piano, subject to the mineral reservation. It is insisted that these findings and the decree are not supported by the proof. It appears from the evidence, in substance, that about the 1st of September, 1893, Butts, upon Piano being prevented from building upon another mining claim, offered to give him all the ground he wanted for that purpose, and then took him upon the land in question, and pointed it out to him. Piano, it appears, accepted the offer, and immediately commenced building houses upon the land. The witness Piano testified that, when he finished the first house, Butts, upon being asked by the witness how much he wanted for the land, said that he had given it to him, and wanted nothing for it. There is evidence tending to show that the land was given with a view to having a town started; that at the time of the making of the agreement the land had no market value; that afterwards Butts platted the land of the mining claim into lots, which were then included in the Mercur town site; that the improvements of Piano enhanced the value of the surrounding lots or property; and that early in 1895 the lots began to have a selling price at about $50 per lot. The witness Scarbourough testified that in August, 1893, Butts proposed to give the witness a lot, if he would go out there and start a town. Respecting the possession and occupancy of Piano, Butts himself testified, as appears from his deposition, as follows: "I understood Piano to be in possession of the lot or lots on which he had houses at the time the plat was made." It also appears that the land in controversy is a part of the Mercur town site; that Butts deeded the town site to the appellants. The co-defendants' claims are based on Piano's title. It would not be profitable to refer to the evidence further in detail, for it is clear that there is ample proof in the record to sustain the findings of facts, conclusions of law, and decree. Doubtless the considerations which induced the donor to part with the land was the making of the improvements on the part of the donee, which would enhance the value of the donor's adjacent property. Therefore, after the improvements have been made, large expenditures incurred, and the contract performed, on the part of the donee, the donor will not, in equity, be heard to say that the contract was within the statute of frauds, and consequently the donee has no title to the land; and the appellants, as grantees of such donor, are in no better position than their grantor. In such case the expenditures and labor of the donee supply a valuable consideration, and the possession and improvements constitute a part performance which avoids the statute of frauds, so that the partly-performed contract may be enforced against the donor. Such enforcement, however, is not based upon the contract itself, for that is covered by

the statute. It is based upon the acts of the parties outside of the agreement, which render the refusal of the donor to perform clearly a fraud upon the donee. In a case like the one at bar the enforcement of the partly-performed contract is based on the possession taken, expenditures and improvements made, by the donee, and the benefit to the donor by the reason of the enhanced value of his adjacent property because of the performance by the donee. Under such circumstances the donor's refusal to perform is inequitable, and, if permitted, would render the statute of frauds itself an instrument of fraud. "Courts of equity will enforce a specific performance of a contract within the statute, where the parol agreement has been partly carried into execution. The distinct ground upon which courts of equity interfere in cases of this sort is that otherwise one party would be able to practice a fraud upon the other, and it could never be the intention of the statute to enable one party to commit such a fraud with impunity. Indeed, fraud, in all cases, constitutes an answer to the most solemn acts and conveyances; and the objects of the statute are promoted, instead of being obstructed, by such a jurisdiction for discovery and relief. And where one party has executed his part of the agreement, in the confidence that the other party would do the same, it is obvious that, if the latter should refuse, it would be a fraud upon the former to suffer this refusal to work to his prejudice." Story, Eq. Jur. § 759; Freeman v. Freeman, 43 N. Y. 34; Stewart v. Stewart, 3 Watts, 253; Ungley v. Ungley, 4 Ch. Div. 73; Eckert v. Eckert, 3 Pen. & W. 332; Malins v. Brown, 4 N. Y. 403; Syler v. Eckhart, 1 Bin. 378; Bright v. Bright, 41 Ill. 97; Lobdell v. Lobdell, 36 N. Y. 327; Pom. Cont. § 130; Pars. Cont. p. 359. The defendants having been in the actual possession and occupancy of the land at the time of the conveyance to the appellants of the town site, which included the land in controversy, such possession and occupancy amounted to actual notice to the appellants of the defendants' rights. Live-Stock Co. v. Dixon, 10 Utah, 334, 37 Pac. 573.

A number of other questions were presented, and, while they have not escaped our notice, still we do not deem it necessary to discuss them. There appears to be no reversible error in the record. The judgment is affirmed.

ZANE, C. J., and MINER, J., concur.

all cases originating in justices' courts in which the validity or constitutionality of a statute or ordinance is drawn in question, made an issue, and decided by the district court on appeal. In all other cases transferred to the district court from courts of justices of the peace, the final judgments of the district courts are conclusive. Eureka City v. Wilson, 48 Pac. 41, 15 Utah, 55, affirmed.

2. Under section 89, p. 631, 1 Comp. Laws 1888, section 289, p. 331, Id., and sections 5 and 12, art. 13, Const., Ogden City is authorized to pass an ordinance for the purpose of raising revenue, by levying and collecting a license fee of five dollars for each telephone instrument operated and maintained by the defendant, and used exclusively within the limits of the city, for which a rental charge is made, for local business; but such power does not extend to authorizing the city to license or tax interstate business of the defendant.

3. A business done wholly within a city is within the taxing power of the city.

4. It is not competent to prove the unreasonableness of an ordinance by the conclusions of witnesses. The regulation by ordinance was left to the discretion of the city council, and there is every presumption that the council were actuated by honest motives, were familiar with the mischief to be remedied, and the needs of the city, as to be the best judges of the necessities for the enactment of the ordinance, and the extent to which it was necessary to exercise the power granted. In such cases the council, and not the court, is the proper repository of the public trust: and it should be a plain case to justify the court in interfering with the determination, or questioning the motives of the city council in enacting the ordinance. Under such circumstances, the court ought not to interfere on the ground that the ordinance was unreasonable, but is restricted to the constitutionality of the act granting the power.

5. While the delegated power of a municipality, under Const. art. 13, § 3, to provide by law a uniform and equal rate of assessment and taxation of all property in the state according to its value in money, has reference to an ad valorem or direct tax upon property, and does not apply to licenses imposed upon privileges, business, and occupation, yet the power to impose such license or taxation on business, within the limits of the city, is clearly granted by other provisions of the constitution and statute referred to; and under such provisions the municipality is not limited to the mere expense of the regulation, but may impose a reasonable license tax for the purpose of obtaining revenue necessary to meet the general expenses of the municipality: but such tax should not be in excess of the needs of the city, nor one so excessive as to prohibit or destroy the business upon which it is imposed.

6. As this is not a proceeding to collect a license, but instituted to enforce a penalty for its violation, it may be enforced by fine or imprisonment, under the ordinance.

(Syllabus by the Court.)

Appeal from district court, Weber county; H. H. Rolapp, Judge.

William W. Crossman and the Rocky Mountain Bell Telephone Company were found guilty of violating an ordinance of Ogden City. On appeal to the district court, judgment was rendered for defendants, and the city appeals. Reversed, with directions.

H. H. Henderson, for appellant. Williams, Van Cott & Sutherland, for respondents.

MINER, J. In June, 1897, defendants were arrested on a warrant issued upon complaint of

the city authorities of Ogden City, charging them with a violation of the provisions of the city ordinance requiring a license of $5 per annum for each instrument, to be paid by every person or corporation who operated and maintained any telephone instrument in Ogden City for which a rental charge is made, and provided for a punishment by fine not exceeding $100, or imprisonment for 100) days, for a violation thereof. Upon trial before a justice of the peace, in July, 1897, the defendants were found guilty, and fined $2 each; and in December, 1897, the defendants appealed to the district court. Upon trial before that court, a jury being waived, the court found the defendants not guilty, on the ground that the information did not state facts sufficient to constitute a public offense, and that the ordinance upon which the complaint was filed was void and unconstitutional. Thereupon Ogden City appealed to this court from such judgment.

The respondents now move to dismiss the appeal, upon the grounds (1) that this court has no jurisdiction in the case, or to entertain the appeal on the part of Ogden City from a verdict of not guilty; (2) that no appeal will lie from a verdict of not guilty. rendered by a court or jury, for a violation of a city ordinance. The proper disposition of this motion, and the decision of the court Folding the ordinance void, necessarily involve the question arising under section 9 of article 8 of the constitution, that "appeals shall also lie from final judgments of justices of the peace in civil and criminal cases to the district courts on both questions of law and fact, with such limitations and restrictions as shall be provided by law; and the decision of the district courts on such appeals shall be final, except in cases involving the validity or constitutionality of a statute." In this case the district court found the defendants not guilty, because the ordinance under which the complaint was filed was void and unconstitutional. In the case of Eureka City v. Wilson, 15 Utah, 55, 48 Pac. 41, where a similar question was presented, this court held that the effect of this exception in the constitution was to allow an appeal to the supreme court in all cases originating in justices' courts in which the validity or constitutionality of a statute or ordinance is drawn in question, made an issue, and decided by the district court on appeal; that in all other cases brought before justices of the peace, and transferred to the district court by appeal, the final judgments of those courts were conclusive; that, when it appears the constitutionality of a statute was raised in and decided by the district court, then the supreme court has jurisdiction, and must examine the judgment to determine whether or not the statutory question was correctly decided, and, if it was, to affirm the judgment; that if the statutory question was erroneously decided, then this court must further inquire if there was any

other matter in issue not affected by the statutory question decided, which was sufficient to sustain the judgment, and, if that was the case, then the judgment should be affirmed, without determining whether the adjudication of such matter or issue was correct; that if it was found that the statutory question was of such force as to render a correct decision thereof necessary to a final adjudication, or that there has been no decision of any other matter or issue not affecting the statutory question, sufficient to sustain the judg nent, then this court will reverse the judgment therein, or direct a proper judgment to be rendered, etc. Murdock v. City of Memphis, 20 Wall 590. Guided by this rule, we must retain jurisdiction of this case, and determine whether the decision of the trial court, in adjudging the ordinance unconstitutional, was erroneous.

The ordinance in question, so far as it is material, provides: (1) It shall be unlawful for any person or corporation to operate and maintain in Ogden City any telephone instrument, for which a rental charge is made, without first obtaining a license for each telephone instrument so operated and maintained. (2) Every person or corporation who shall operate and maintain in Ogden City any telephone instrument in section 1 of this ordinance shall pay to Ogden City for each telephone instrument an annual license of $5. Section 4 provides that all applications for license under this ordinance shall be made in writing to the city recorder, and any person or corporation violating any of the provisions of this ordinance shall be punished by a fine not exceeding $100 or imprisonment for 100 days. Comp. Laws Utah 1888, p. 331, § 289, authorizes the city council to license, tax, and regulate bankers, agents, expressmen, express companies, telegraphers, photographers, assayers, smelters, crushers, and other like occupations or pursuits. By Id. p. 631, § 89, the legislature has authorized city councils 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. All such license fees and taxes shall be uniform in respect to the class upon which they are imposed. By section 2 of article 13 of the constitution of this state it is provided that all property in the state not exempt under the laws of the United States, or under this constitution, shall be taxed in proportion to its value, to be ascertained as provided by law. Section 3 of the same article provides that the legislature shall provide by law a uniform and equal rate of assessment and taxation on all property in the state, according to its value in money. Section 5 of the same article provides that the legislature shall not impose taxes for the purpose of county, city, town, or other municipal corporation, but may, by law, vest in the corporate authorities thereof, respectively, the

power to assess and collect taxes for all purposes of such corporation. Section 12 of the same article provides that nothing in this' constitution shall be construed to prevent the legislature from providing a stamp tax, or tax based on income, occupation, licenses, franchises, or mortgages.

Upon the trial of this case, it was admitted that the defendant the Rocky Mountain Bell Telephone Company was a private corporation, organized under the laws of Utah, with its principal office in Salt Lake City, and with an office in Ogden City; that one Ash had a telephone instrument in his store in Ogden, and that it was placed therein by the defendant corporation; and that, when it is taken out, it will be taken out at the expense of the defendant corporation; that said Ash pays to the company a rental of five dollars per month for the use of such instrument, and that for such payment he has the privilege of using said instrument in talking with persons in Ogden City, but in no other place; that the license fee for the use of said instrument had not been paid by the defendant, or any other person, and no license had been issued for maintaining or operating said instrument; that the defendant Crossman is the agent and managing officer of defendant company in Ogden City, Utah. Defendant also offered in evidence, under objection, that said corporation had in July, 1893, filed its acceptance of the provisions of the act of congress of July 24, 1866, being sections 5263 and 5268 of the Revised Statutes of the United States; that said corporation had been assessed and had paid its property tax on its property for the year 1897, for city, county, state, and school purposes, which included the general tax on the instruments and personal property; that said telephone instrument has connection by wire of the company with wires run to various parts of the city, in the state of Utah and in Idaho; that said Ash, by paying certain tolls, differing in amount for various distances, had the privilege of talking over the wires with persons in Idaho, either by private or at a public telephone station; that said telephone was connected by wire with the Western Union Telegraph Company in Ogden, and messages may be transmitted to said telegraph company to be sent to other states and cities and counties in this state; that said instrument was partly owned by the defendant company, and partly by the Bell Telephone Company, for which the defendant company pays a rental of $7 per year; that the defendant corporation receives an income from rentals and tolls charged for connections outside of Ogden, and the net income, after paying expenses in 1897, was $3,000; that there were 175 instruments in operation in Ogden City, and that each instrument was worth $9; that the actual cost of writing and issuing a license under the ordinance would be 5 cents; that the city was at no expense in the inspection or su