Wills v. City of Ft. Smith

• Decision Date: 15 February 1902
• Citation: 66 S.W. 922
• Parties: WILLS v. CITY OF FT. SMITH.
• Court: Arkansas Supreme Court

66 S.W. 922

WILLS v. CITY OF FT. SMITH.

Supreme Court of Arkansas.

February 15, 1902.

Appeal from circuit court, Sebastian county; Styles T. Rowe, Judge.

Action by E. C. Wills against the city of Ft. Smith to enjoin the enforcement of a city ordinance. From a judgment dismissing the complaint, plaintiff appeals. Affirmed.

The city council of Ft. Smith on 5th of February, 1900, passed an ordinance, the first section of which provides as follows: "It shall be unlawful for any person hereafter to sell, barter or exchange coal in any quantity in the corporate limits of this city until they have first weighed the same upon the city scales of the city of Ft. Smith and paying the weighman the sum of ten cents for the weighing of any load or part of a load of coal." The second section of the act provides that any person violating the ordinance shall be fined not less than $5 nor more than $25. E. C. Wills, a coal dealer in Ft. Smith, brought this action to enjoin the city from enforcing, or attempting to enforce, said ordinance on the ground that the ordinance was void. The city appeared by counsel, and filed an answer denying the material allegations in the complaint. The evidence showed that the total revenue to the city from the sales was over $1,400, while the expenses in operating the scales was above $1,300. On the hearing the circuit court found in favor of the defendant that the ordinance was valid, and dismissed the complaint. Plaintiff appealed.

Read & McDonough, for appellant. F. M. Jamison, for appellee.

RIDDICK, J. (after stating the facts).

The questions presented by this appeal relate to the validity of an ordinance of the city of Ft. Smith in reference to the weighing of coal sold in that city. Plaintiff, a coal dealer in that city, contends that the ordinance is void on the ground that it was unreasonable and oppressive, and operated to deprive plaintiff of his property without due process of law, and for the further reason that it was passed for the purpose of raising a revenue for the city. The ordinance in question, after providing that all coal sold in the city shall be weighed upon the city scales, directs that the sum of 10 cents shall be paid to the weighmaster for the weighing "of any load or part of a load of coal." The word "load" used in the ordinance is rather indefinite, and might be said to include a car load or wheelbarrow load of coal as well as a wagon load. But as the evident intention of this ordinance was to protect the residents of the city who were purchasers and consumers of coal against fraud, imposition, or mistake in the weighing of the same, and as coal is usually delivered to consumers by wagons either in full loads or in parts of a load, we think it is evident that the word "load" in the ordinance refers to wagon loads, and that it has no application to sales of very small quantities, such as a bucket or wheelbarrow load of coal. In fact, the mayor of the city testified that the ordinance was construed by the city authorities to apply only to cases when the delivery was by wagon in loads or parts of loads, and we are willing to adopt that construction of it.

Now, our statute expressly grants to cities the right "to provide for the measuring or weighing of hay, wood or any other article for sale." Sand. & H. Dig. § 5132. Under this statute the city had...