Mountain States Telephone & Telegraph Co. v. Salt Lake County

ZIMMERMAN, Justice

(concurring in the result):

I concur in the result reached by the majority. However, I write separately to state that with respect to the County’s power to levy a utility business license tax for revenue purposes under section 17-5-27 of the Code, my sole ground for affirmance is that Cache County v. Jensen, 21 Utah 207, 215-22, 61 P. 303, 305-07 (1900), disposed of this question and that in the intervening 85 years the legislature has apparently acted on the premise that Cache County’s construction of the predecessor to section 17-5-27 was correct. I must agree with Justice Stewart that there is little basis for the majority’s indulging in the usual presumption that the legislature, in reenacting section 17-5-27 years after Cache County issued, must have intended to embrace the holding of that case. As Justice Stewart demonstrates, the Cache County analysis has been eroded by later cases.

I am compelled to concur with the result reached by the majority, however, because there is other ample reason to conclude that the legislature has specifically adopted the Cache County analysis of county taxing powers. After Cache County, the legislature enacted several statutes granting counties authority to impose taxes for revenue purposes under limited circumstances. See, e.g., U.C.A., 1953, §§ 11-9-1 to -11 (Supp.1983) (granting counties authority to impose sales and use taxes); U.C.A., 1953, *119§§ 17-31-1 to -3 (Supp.1983) (granting counties authority to impose transient room tax). Had the legislature believed that Cache County was wrong and that counties had the broader revenue powers claimed by Salt Lake County in this case, those statutes would have been entirely unnecessary. Accordingly, the principles contained in Cache County have clearly been woven into the fabric of our law. Under these circumstances, the time for us to depart from Cache County is long past. Salt Lake County must look to the legislature for the power to impose the broader and more equitably based taxes that cities can now impose and which it argues urban counties need to function in the modern environment.

By concurring in the result reached today, I do not endorse the suggestion in the majority opinion that any substantial justification now exists for the distinction this Court drew in Cache County and Ogden City v. Crossman, 17 Utah 66, 53 P. 985 (1898), between the taxing powers of counties and cities. I find that distinction untenable in light of the quite similar language used in the relevant statutes. Compare U.C.A., 1953, § 17-5-27 (1973 ed.) with U.C.A., 1953, §§ 10-8-39, -80 (1973 ed.). I also agree with Justice Stewart that there is no longer any justification for giving a niggardly interpretation to the powers of local governments. That approach is outdated and can only impede the solution of local problems by local governments.