Arkadelphia Lumber Co. v. Arkadelphia

• Decision Date: 18 June 1892
• Parties: ARKADELPHIA LUMBER CO. v. ARKADELPHIA
• Court: Arkansas Supreme Court

19 S.W. 1053

56 Ark. 370

ARKADELPHIA LUMBER CO. v. ARKADELPHIA

Supreme Court of Arkansas

June 18, 1892

APPEAL from Clark Circuit Court, RUFUS D. HEARN, Judge.

Judgment affirmed.

J. H Crawford for appellant.

1. The so-called ordinance was not passed in the manner prescribed by law. Mansf. Dig. sec. 924; 66 Iowa 688; 59 id. 26; 38 Kas 573; 1 Dillon, Mun. Corp. (4th ed.) § 51.

2. The river and ferry are outside the jurisdiction of the city. 53 Ark. 314; 25 Am. L. Rev. 599; Mansf. Dig. sec. 758; Gantt's Dig. sec. 3241; 11 Wall. 423; 1 Dill. Mun. Corp (4th ed.) § 788; 54 Ark. 509.

3. The tax was for revenue only, and not a license fee. 42 N. J. Law, 368; Mansf. Dig. sec. 758; 7 So. 885-892; 1 Dill. Mun. Corp. § 368; 34 Ark. 603; 25 Am. L. Rev. 606-8; 22 F. 701; 72 Md. 548; 91 N.C. 554; 52 Ark. 301; 43 N. J. Law, 175; 20 A. 179; 42 Ark. 82.

The appellee pro se.

1. The landing on the west bank of the river is within the corporate limits, and therefore came under the city's power of municipal regulation.

2. The fee is not a tax, nor was it levied solely for revenue. Twenty-five dollars will be presumed a reasonable fee unless the contrary appears. 52 Ark. 30. It was the city's duty to keep an inspection of the ferry's condition, banks, landing and boats. 9 Law. Rep. An. 69. Before courts will interfere and declare a license fee unjust and unreasonable, a flagrant case of excessive and oppressive abuse of power in levying the tax must be shown.

3. The council could accomplish its purpose by resolution as well as by ordinance. 14 Law. Rep. An. 268; 28 N.E. 849.

BATTLE, J. HEMINGWAY, J. dissenting.

OPINION

BATTLE, J.

Appellant was charged with, and convicted of, a violation of an ordinance of the city of Arkadelphia requiring persons keeping public ferries in that city to pay a license fee of twenty-five dollars for the year 1891.

The ordinance violated provides that "the city council shall, at their regular meeting in January of each year, or as soon thereafter as practicable, levy a tax for the exercise of the following privileges and such others as they may from time to time deem proper to tax, to-wit: Alleys, ten-pins, nine-pin or any other pin alleys, * * * ferry over Ouachita river. * * *" It also provides that any one exercising the privileges therein mentioned, without first having obtained a license therefor, shall, on conviction, be fined in any sum not less than five nor more than twenty-five dollars for each separate offense. The city council, by resolution, resolved "that, from and after the 10th day of June, 1891, the license fee required from all public ferries within the limits of said city" should "be reduced from seventy-five to twenty-five dollars for the year 1891."

It is first contended in behalf of appellant that the ordinance was not passed by the city council in the manner prescribed by law. But this does not appear from the evidence. A printed copy of the ordinance published by authority of the city was introduced as evidence in the trial. This was at least prima facie evidence of the legal existence of the ordinance and its contents. The burden was on the defendant to overcome this evidence (Van Buren v. Wells, 53 Ark. 368, 377, 14 S.W. 38), and it failed to do so."

The ordinance requiring the license authorizes the council to fix the license fee as it from time to time should deem proper. In pursuance of this authority the council had the right to fix the fee for 1891 by resolution. Burlington v. Putnam Ins. Co. 31 Iowa 102, 106.

Appellant contends that its ferry is not subject to police regulation by the city of Arkadelphia, because the Ouachita river where it is established is not within its territorial limits. But it does not follow that this contention is correct because the reason given for it may be true. The evidence shows that the river is a navigable stream, and that its west bank is within the corporate limits of the city. The right to operate a ferry over it is dependent on and incident to the ownership of the banks on which the landing is made, and not on the possession or jurisdiction of the water of the stream. Mansfield's Digest, §§ 3309, 3312. Having the right to regulate ferries within its corporate limits, it is obvious that the city has the power to require the owner of so much of the western bank of the river as is within its boundaries to pay a license fee before he can operate a ferry from such bank by reason of his ownership, and to regulate the same. But it is evident that its ordinances regulating ferries could be successfully evaded by procuring a license to run a ferry from the bank outside its limits, and that the right to regulate would be of no service to the city unless it also has the right to regulate ferries operated from the opposite bank. Without the last mentioned right the power to regulate which was delegated to the city would be ineffectual. But this cannot be. The legislature, in granting to the city the power to regulate, vested it with all other authority necessary to enable it to successfully exercise the power granted, and thereby gave to it the right to regulate the ferries operated from either bank.

It is next insisted that the twenty-five dollars required to be paid for the license was a tax. The object of the ordinances of the city upon the subject of ferries is apparent. They provide, among...