pervision of the instruments; that the defendant corporation has poles set and wires strung for such instruments through the streets of Ogden City.

1. The first question presented in this record is, was the ordinance unconstitutional, and an interference with the interstate commerce law? If the ordinance requiring the payment of the license applies to the defendant's interstate business, it would be void, as an attempted interference with or regulation of interstate commerce. By the enactment of section 289, p. 331, Comp. Laws Utah 1888, the legislature conferred upon Ogden City the power to license, tax, and regulate telephone companies, and other like occupations or business. By the enactment of section 89, p. 631, Comp. Laws Utah 1888, Ogden City was authorized to raise revenue by levying and collecting a license fee or tax upon any private corporation or business within the limits of the city, and regulate the same by ordinance, if such ordinance was within the power delegated, and not in conflict with the constitution and laws of the United States. By section 5, art. 13, of the constitution, the legislature was authorized to vest in municipalities the power to assess and collect taxes for all purposes of such corporation; and by section 12 the legislature was relieved from any provision in the constitution by which it was restricted from providing that a tax based on incomes, licenses, franchises, or mortgages might be levied by municipalities under its authority. The power authorized municipalities to collect taxes for all purposes of such corporation, and necessarily included revenue purposes as well as police purposes. By enacting sections 89 and 289, the legislature was acting within the direct power conferred upon it by the constitution, authorizing it to grant to municipalities a right to license, tax, and regulate telegraph companies, and oth er like occupations and pursuits, and to raise revenues by levying and collecting a license fee or tax on any private corporation or business, and regulate the same by ordinance. By virtue of this general power, the city was 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 corporation exclusively within the limits of the city, for which a rental charge was made for local business; but such power did not extend so as to empower said city to provide by ordinance for licensing or taxing the interstate business of such corporation; and such was not the evident intention of the framers of the ordinance.

It appears from the agreed statement of facts that the said corporation operated and maintained said instrument in the store of Mr. Ash, for which he paid the company five dollars per month; that this payment gave Ash the privilege of talking with per

sons in different parts of the city, and for no other place; that, if Mr. Ash used the instrument in talking with parties out of the state, he paid the usual stipulated sum charged therefor, outside of the rental price paid for the instrument. It is evident the defendant corporation operated and maintained such instrument in Ogden City for a stipulated monthly rental, for business of a local character, which was confined strictly within the city limits. For interstate business it made another and distinct charge, independent of the local rental business charge of five dollars per month. Lessors of such instruments had no right to use them outside of the city, unless they paid certain extra charges therefor, to which all others were subject. It is evident that the ordinance was not intended to, and does not, apply to or affect in any manner the business of the defendant corporation which is interstate in its character, and that such ordinance was intended to, and does, apply to and affect only the local business of said defendant company done within Ogden City, as shown from the rental of the instrument for use in Ogden City alone. By engaging in a business of operating and maintaining such telephones in Ogden City, and making and receiving a rental charge for the use of the instruments therein, and for no other place, it became amenable to the ordinance. A business done wholly within a city is within the taxing power of the city. The defendant corporation is not exempt from the operation of the ordinance, and the payment of a license upon its instruments or business which arises and is conducted wholly within Ogden City, even though at the same time the defendant corporation may do a business or use its instruments in Ogden City for business which is in part interstate in its character. We are of the opinion that the ordinance does not affect or apply to this latter class of business, which is interstate in its character. Osborne v. State of Florida, 164 U. S. 650, 17 Sup. Ct. 214; Postal Tel. Cable Co. v. City of Charleston, 153 U. S. 692, 14 Sup. Ct. 1094; City of Anniston v. Southern R. Co. (Ala.) 20 South. 915; Harrow Co. v. Shaffer, 68 Fed. 750.

2. It is also claimed by the respondent that the amount of the license is excessive and unreasonable; that it is imposed for revenue purposes only, and not within the exercise of police power; that, having paid its proportion of the general tax, it cannot be compelled to pay an additional tax under the guise of a license. We have seen that sections 89 and 289, Comp. Laws Utah 1888, authorize cities to levy and collect license fees or taxes on private and corporate business within the limits of the cities, and to regulate the same by ordinance, and to license, tax, and regulate telegraph and other like occupations or pursuits, and that such acts were authorized by the constitution. It is apparent that the ordinance in question was passed by virtue

of the express power and authority of the statute as authorized by the constitution. Under such circumstances, it was not competent to prove the unreasonableness of the ordinance by virtue of the conclusion of witnesses. The regulation of the matter was left by law to the discretion of the city council, and not to the defendants. By granting the power, the legislature imposed upon the city council the discretion to determine just how far they could go within the limits imposed, and there is every presumption that the council were actuated by pure motives, and that they were so familiar with the mischief sought to be guarded against, 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 advisable and necessary to exercise the power granted. In such cases the council, and not the court, is the proper repository of this public trust; and it should be a plain case to justify the court in interfering with the determination of the council, or questioning their motives in enacting the ordinance. Under the circumstances, the court ought not to interfere upon the ground that the ordinance was unreasonable, but is restricted to the constitutionality of the act granting the power. The ordinance itself proves the exigency which existed which required its enactment. Horr & B. Mun. Ord. §§ 127, 128; Mayor, etc., of New York v. Dry-Dock E. B. & B. R. Co. (Com. Pl.) 15 N. Y. Supp. 297; In re Chipchase (Kan. Sup.) 43 Pac. 264; 17 Am. & Eng. Enc. Law, 247; Denver City Ry. Co. v. City of Denver (Colo. Sup.) 41 Pac. 826.

3. Sections 2 and 3 of article 13 of the constitution were controlled and limited by sections 5 and 12, above quoted, in so far as the power is granted to the legislature to empower municipalities to assess and collect taxes for all the purposes of such corporation, and in providing for a tax upon income, occupation, licenses, franchises, or mortgages. Under the power, the legislature could properly grant municipalities the rights conferred by sections 89 and 289, above referred to. Under the constitution, taxation is clearly a legislative prerogative, and may be conferred upon a municipality to such an extent and for such purposes as may be deemed expedient, so long as the limits and restrictions of the organic law are observed. When the constitution delegated the power to the legislature, under section 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," it had reference to the levy of an ad valorem or direct tax upon property, and does not apply to licenses imposed upon privileges, business, and occupations. Sedg. St. & Const. Law (2d Ed.) 504-507; Burroughs, Tax'n, § 54; Denver City Ry. Co. v. City of Denver (Colo. Sup.) 41 Pac. 826. The license tax referred to in this case, of five

dollars per annum on each telephone instrument operated and maintained by the defendant corporation in Ogden City for which a rental charge was made, is not a property tax, but comes under the head of a business license; and, although not alone for police purposes, it is a license to do a business which it would be unlawful to do without complying with the terms of the ordinance. Under the circumstances, where, by the constitution and statute, express authority is given to raise revenue by levying and collecting a license fee or tax upon any private corporation or business within the limits of the city, and regulate the same by ordinance, it is held that the municipality is not limited to the mere expense of the regulation, but that it may impose a reasonable license tax for the purpose of obtaining revenue necessary to meet the general expenses of such municipality. But the state could not, under such circumstances, impose a license tax beyond the necessities of the city, nor one so excessive as to prohibit or destroy the occupation or business upon which it is imposed. In our opinion, the enactment of the ordinance under consideration was a legitimate exercise of the powers granted by the constitution and the statute, and the charge for the license tax therein provided for may be enforced. In re Chipchase (Kan. Sup.) 43 Pac. 264; Denver City Ry. Co. v. Denver City (Colo. Sup.) 41 Pac. 826; City of Newton v. Atchison, 31 Kan. 151, 1 Pac. 288; Ex parte Robison, 12 Nev. 263; Wolcott v. People, 17 Mich. 68; 1 Desty, Tax'n, § 36; City of San Jose v. San Jose & S. C. R. Co., 53 Cal. 475; Ex parte Mirande, 73 Cal. 365, 14 Pac. 888; Marmet v. State, 45 Ohio St. 63, 12 N. E. 463; American Union Express Co. v. City of St. Joseph, 66 Mo. 675; Cooley, Tax'n, 572-584; 1 Dill. Mun. Corp. (4th Ed.) 357.

4. It is also insisted that the ordinance is void because it attempts to punish by fine and imprisonment the failure to pay a purely revenue tax. 1 Comp. Laws Utah 1888, p. 631, § 90, confers express power upon a municipality to pass all ordinances, rules, and make all regulations necessary for carrying into effect all powers and duties conferred by that act, and to enforce an obedience to such ordinance, with such fines or penalties as the city council may deem proper, provided the fine or penalty shall be less than $300, and the imprisonment shall not exceed six months for each offense. The ordinance provides for a fine not exceeding $100, or imprisonment for 100 days. We cannot sustain the objection made. The ordinance was enacted in accordance with the statute. This is not a proceeding to collect a license, but a proceeding instituted to enforce a penalty for its violation on the part of the defendant corporation. Such ordinances, imposing a penalty by fine or imprisonment, when authorized by the organic law, have been almost universally upheld

when brought to the attention of the courts. Denver City Ry. Co. v. City of Denver (Kan. Sup.) 41 Pac. 826; City of St. Louis v. Sternberg, 69 Mo. 289; City of Cincinnati v. Buckingham, 10 Ohio, 257; Vandine, Petitioner, 6 Pick. 187; Chilvers v. People, 11 Mich. 43; Shelton v. Mayor, 30 Ala. 542; 1 Dill. Mun. Corp. § 339; Marmet v. State, 45 Ohio St. 63, 12 N. E. 463; City of St. Louis v. Vert, 84 Mo. 204; 17 Am. & Eng. Enc. Law, p. 257; Cooley, Tax'n, 437.

We are of the opinion that the court erred in finding the defendants not guilty, and in dismissing the complaint on the ground that the ordinance under which the complaint was drawn was unconstitutional and void, and that the complaint does not state facts sufficient to constitute a public offense. Inasmuch as the defendants have been tried and acquitted upon the charge, the case is remanded, with instructions to the trial court to reverse and set aside the order and judgment, but to discharge the defendants from custody.

ZANE, C. J., and BARTCH, J., concur.

(17 Utah, 137)

RHODES v. CLUTE et al.

(Supreme Court of Utah. June 24, 1898.) BUILDING CONTRACT-PLANS AND SPECIFICATIONS -MATERIAL DEPARTURES-LIABILITY OF OWNER THEREFOR

Where the owner of premises and a builder enter into a contract for the erection of a building at an agreed price therefor, and, after part performance by the builder, such material departures from the plans and specifications are made, at the instance of the owner, as will result in a new and different undertaking, with

out any agreement as to the price for such departures, the builder may recover for the reasonable value of the material and labor furnished in accordance with such new undertaking, and will not be limited to the price agreed upon in the original contract.

(Syllabus by the Court.)

Appeal from district court, Salt Lake county; Ogden Hiles, Judge.

Action by George F. Rhodes against Mary A. Clute and others. From a judgment for plaintiff, defendants appeal. Affirmed.

This was an action to foreclose a mechanic's lien on certain premises, to recover a balance of money which the plaintiff claims is due him from the defendants for labor and material furnished in the construction of the house on the premises. It appears from the evidence that in April, 1891, defendant Mary A. Clute, the then owner of the property, engaged the plaintiff, who was a carpenter and builder, to build a frame dwelling house at the agreed price of $3,S00. The contract was verbal, and the house was to be built according to plans prepared by the owner. The contractor immediately commenced operations, but, before the foundation was finished, at the instance of the owner the plans were chan

ged so as to put in a low bay window; and after the foundation was completed a change was made, at the instance of the owner, so as to erect a brick instead of a frame building. Thereafter the front porch was ordered to be made larger than indicated on the plans, the deck roof changed to one with gables, stairway altered, and other material changes directed to be made. All of which alterations, according to plaintiff's testimony, were of the value of about $2,600; and the owner, up to the time suit was brought, paid on account of the building $5,484.94, but refused to pay the balance claimed by the contractor, and which is in controversy herein. On the occasion of making the change from a frame to a brick building, as testified to by the plaintiff, Mr. Clute, the agent of the owner, asked the plaintiff if it was too late to make a brick house in the place of a frame, and was informed that the foundation was not put in for a brick house, and that he must take the chances. Thereupon the agent ordered the change, and after the brick (common and pressed) had been selected, the plaintiff was directed to order "stone trimmings for the house and water table"; but nothing was said about compensation for labor, or price for the brick house with trimmings, or the cost of laying the brick or stone. It appears that at about that time Clute asked plaintiff what would be the best way to put up the building, and was told that, if he wanted good work, it would be best to hire men by the day, and that thereupon Clute replied, "Go ahead. and hire the men." Afterwards, being told, upon inquiry, that they were working nonunion men, Clute asked plaintiff if it made any difference in price, and, on being informed that nonunion men were the cheapest, said to plaintiff, "Go ahead with the force we had." The plaintiff kept the pay rolls, and the labor and most all the materials were paid for by him; he receiving the money from the owner. According to plaintiff's testimony, the last material was furnished and last labor performed on December 12, 1891; and he testified that his own labor amounted to about 180 days, and that he had received nothing therefor. The notice of lien was filed February 9, 1892. At the trial the court rendered judgment in favor of the plaintiff in the sum of $441, and the defendants appealed.

Varian & Varian, for appellants. O. W. Moyle, for respondent.

BARTCH, J. (after stating the facts). The principal and most important contention on the part of the appellants appears to be that the plaintiff was a contractor, and had agreed to erect the building for a stipulated sum, and that therefore he was neither entitled to charge for superintending his contract, nor for his own personal labor upon the building, and consequently was not entitled to a lien on the premises; and this re

gardless of the changes made in the building after the first contractual relations between him and the owner. If there was no abandonment of the contract because of the changes made in the plans for the building, this contention is undoubtedly correct; for if, under an agreement, he was to furnish the material and labor and erect the house at an agreed price, then he was bound by the terms of the contract, and is neither entitled to compensation for superintending the work, nor for his own labor. But the respondent maintains that such was not the case, that the contract was abandoned by the parties, and that therefore he was entitled to recover on a quantum meruit, and also entitled to a lien on the property. It will be noticed from the facts above stated that, in the first instance, there was a verbal contract between the parties for the construction of a frame dwelling house at the agreed price of $3,800. Such a house as was thus indicated by the plans and agreed upon, the plaintiff would have been bound to build for the stipulated sum; but was he required to do more, and, at the mere suggestion of the owner, build a brick instead of a frame house? Surely, as shown by the record, no brick house was included within the terms of the contract. Nothing of the kind appears to have been thought of until, after the contractor had entered upon the performance of the contract, and had completed the foundation for the frame building, the owner, of her own volition, without any agreement as to the price therefor, directed the building of a brick instead of a frame structure. Then other material changes were made in the designs of the building, all at the instance and under the directions and orders of the owner, until the contemplated comparatively unpretentious frame house was raised into a pretentious brick structure, costing several thousand dollars more than the one for which the contract had been made. How, then, with such facts disclosed by the evidence, can it successfully be maintained that the owner is not to be charged with what the construction of such a building is reasonably worth, or that the cost, as to him, must be governed by the terms of the original contract, although nothing was said concerning the price of the brick building when the changes were made? The acts of the owner herself negative such a contention, for it is clearly shown that she paid out large sums of money for material and labor, over and beyond the terms of the contract, and we cannot assume that the respondent undertook to erect a kind of building which was not in the minds of the parties at the time of their entering into the agreement. The changes and additions made did not merely amount to extras, but were so material, both in price and construction, as to amount to an abandonment of the contract, and the creation of a new one, without an agreed price for the

erection of the structure under the altered plans. Where the owner of premises and a builder enter into a contract for the erection of a building, at an agreed price therefor, and, after part performance by the builder, such material departures from the plans and specifications are made, at the instance of the owner, as will result in a new and different undertaking, without any agreement as to the price for such departures, the builder may recover for the reasonable value of the material and labor furnished in accordance with such new undertaking, and will not be limited to the price agreed upon in the original contract. Cook Co. v. Harms, 108 Ill. 151; Smith v. Salt Lake City, 83 Fed. 784; Delafield v. Village of Westfield, 77 Hun, 124, 28 N. Y. Supp. 440; Bridge Co. v. McGrath, 134 U. S. 260, 10 Sup. Ct. 730.

From the foregoing considerations, and in view of the facts in evidence, we are of the opinion that the respondent, although superintendent of the construction of the building, had the right to recover for the work actually performed by him, that he had a right to a lien therefor on the premises, and that his notice of lien filed sufficiently complied with the statute then in force. The questions raised respecting the lien in this case we do not think are well taken, under the facts disclosed by the record. Nor, owing to the conclusions reached above, do we deem a separate discussion of them, or of any other question presented, necessary. There appears to be no reversible error in the record. The judgment is affirmed.

4. Whenever a breach of contract 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 of omission, which is the groundwork of the complaint. will be regarded as having occurred at that place.

5. Chapter 93, Sess. Laws 1896, in so far as it authorizes the bringing of an action upon a contract in a county where the defendant resides, when such contract, by stipulation therein, is to be performed in another, is in conflict

with section 5 of article 8 of the constitution, and is void.

(Syllabus by the Court.)

Appeal from district court, Salt Lake county; A. N. Cherry, Judge.

Action by George W. Brown against John M. Bach on a promissory note. Plaintiff had judgment, and defendant appeals. Reversed.

Frank Pierce, for appellant. L. L. Baker and Baskin & Hoge, for respondent.

BARTCH, J. This action was commenced in the district court of Tooele county to recover a certain sum alleged to be due on a promissory note. The defendant demurred to the complaint on the grounds that it failed to state a cause of action. and that it appeared on its face that the court had no jurisdiction. The demurer was overruled, and, the defendant failing to answer, judgment was entered against him.

The decisive question presented, on this appeal from the judgment, is, whether the court had jurisdiction to try the cause. The note set out in the complaint appears to have been executed by the defendant to the plaintiff at Clifton mining district, Tooele county, Utah, November 25, 1896, and was made "payable at Salt Lake City, Utah." In view of the fact that the note was made payable at Salt Lake City, which is in Salt Lake county, the appellant insists that the suit was improperly instituted in Tooele county, and that it should have been brought in Salt Lake county, where the breach of the note or contract occurred by failure to pay, relying on section 5 of article 8 of the constitution. In that section it is provided: “All civil and criminal business arising in any county must be tried in such county, unless a change of venue be taken, in such cases as may be provided by law." This provision was construed in Konold v. Railway Co., 16 Utah, 151, 51 Pac. 256, and we there held: "The word 'business' was used as a general term to include causes of action and all other business which might arise in any county, and the manifest intention was that all suits, civil and criminal, should be brought, and the cases tried, in the county in which the causes of action arose, unless a change of venue should be taken in such cases might be provided by law. The last clause of the provision confers upon the legislature discretionary power to provide for a change of venue in cases where that body may deem it necessary, but even in this class of cases the legislature has no power to authorize an action to be brought, in the first instance, in any other county than the one in which the cause arose." The important question, therefore, is, where did the cause of action arise? The appellant contends that it arose in Salt Lake county, where the failure to pay, which caused a breach of contract, occurred; while the respondent insists that, upon the default of the obligor, his obligation to pay at Salt

as

Lake City was broken, "and could not afterwards ever be performed," but that the obligation continued to exist, and accompanied him into every jurisdiction in which he might go, and that each day on which he neglected to pay after maturity he was guilty of a "new breach, and gave rise to a new cause of action against him in each jurisdiction in which such breach occurred; and that the action was properly brought in Tooele county. We cannot assent to the correctness of the views of the respondent. In reference thereto it may be asked, why did not the breach continue to exist, the same as the obligation? and why limit the new breach to each day, instead of each hour, week, month, or other period of time? It is also difficult to understand why the obligor could not perform the condition to pay at Salt Lake City, and avoid the effects of the breach, at any time before suit brought, especially if it were true, as insisted by counsel for the respondent, that "time and place of payment in the terms of a promissory note are not of the essence of the contract." Evidently in every note or contract the time and place of performance are matters that may be arranged between the parties, and may be so stipulated as to best suit their convenience. Since, therefore, the place of payment of the note in this case was stipulated to be at Salt Lake City, it is fair to infer that it was done for their mutual accommodation, or, possibly, at the instance of one or the other of the parties, for his convenience. Whatever may have been the reason for the stipulation, it is a material part of the contract, and it made it the duty of the obligor, at maturity of the note, to pay at the place designated. The obligation in itself created no cause of action. It existed before maturity as well as after, and yet no one would claim that the payee had a right to sue before maturity of the note. This being so, then a cause of action could not have arisen until the promisor had refused or omitted to do his duty, as he had agreed, which was to pay the note at maturity at Salt Lake City.

"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 conIstituted the violation of duty agreed to be discharged, and arose at the time when and place where that duty was to be discharged. When a thing is done which ought not to have been done, or when a thing is not done which ought to have been done, a cause of action arises, and such doing or omitting to do forms the basis of the action; and, while the contract constitutes necessary evidence to establish a right to recover, it does not constitute the thing which establishes the right to bring the action, although such thing must have been preceded by the contract. That which gives cause for complaint is the breach. Hence