City of Texarkana v. Hudgins Produce Company

• Decision Date: 02 March 1914
• Citation: City of Texarkana v. Hudgins Produce Company, 112 Ark. 17, 164 S.W. 736 (Ark. 1914)
• Parties: CITY OF TEXARKANA v. HUDGINS PRODUCE COMPANY
• Court: Arkansas Supreme Court

164 S.W. 736

112 Ark. 17

CITY OF TEXARKANA v. HUDGINS PRODUCE COMPANY

Supreme Court of Arkansas

March 2, 1914

Appeal from Miller Chancery Court; James D. Shaver, Chancellor reversed.

STATEMENT BY THE COURT.

The appellees brought suit in the chancery court of Miller County, Arkansas, to restrain the city of Texarkana, Ark and Foster Rogers, its chief of police, from enforcing a certain ordinance of that city, regulating the sale of eider by wholesale and retail. The lower court issued a temporary injunction, which was made permanent on the final hearing.

So much of the ordinance, as we need consider here, reads as follows:

"Section 3. That the selling of cider, either at wholesale or retail within the incorporate limits of the city of Texarkana Arkansas, is hereby declared to be a privilege, and it shall be unlawful for any person or persons to engage in the sale of cider, either at wholesale or retail, until either he or they shall have complied with the provisions of this ordinance.

"Section 4. That each dealer in cider within the incorporate limits of this city of Texarkana, Arkansas, shall, before engaging in said business, whether at wholesale or retail, pay into the city treasury of the city of Texarkana, Arkansas, the following license fees, namely:

"(a) Each wholesale dealer in cider shall pay the sum of fifteen ($ 15) dollars per month, payable monthly on the first day of each month.

"(b) Each retail dealer in cider shall pay the sum of ten ($ 10) dollars per month, payable on the first day of the month.

"Any person or persons engaging in the business of selling cider within the said city of Texarkana, Arkansas, either at wholesale or retail, without having first paid the license fee required by this ordinance, shall be subject to a fine of twenty-five ($ 25) dollars for each offense; and each day that said business is so illegally carried on shall constitute a separate offense."

The complaint alleged that appellees, the Hudgins Produce Company, is a domestic corporation, and that the city of Texarkana, Arkansas, is a city of the first class, and that the Hudgins Produce Company is engaged in the wholesale grocery and produce business in said city, and is also engaged in the sale of sweet cider. The complaint further alleged that the ordinance was unreasonable, void and of no effect for the following reasons:

"First. That the city of Texarkana, Arkansas, is not empowered or authorized to pass any act to declare the wholesaling and retailing of cider a privilege, or to license or regulate the same, and that the effort of the city to collect a license under the said ordinance is an illegal exaction, and an abuse of the power of the said city; and,

"Second. That the said ordinance is a revenue measure and that the amount of the tax is unreasonable, excessive and void; and,

"Third. That the ordinance is void because it contains and attempts to legislate upon more than one subject, and the subjects are not clearly expressed in the title."

Appellees rely upon the first and second grounds.

Appellants admitted in the answer that appellee is engaged in the wholesale grocery business in the city of Texarkana Arkansas, and further admitted that it is engaged in the wholesale cider business; but denied that the cider sold by it was the cider commonly known as sweet cider, but it stated the truth to be that the cider sold by appellee was a cider made by a chemical process, with harmful and dangerous ingredients therein, and said cider, when fermented, contained a large percentage of alcohol, and that the carrying on of said business had a tendency dangerous to morals, health and public safety and came expressly within the terms and conditions of subdivision 4 of section 5648 of Kirby's Digest of the statutes of the State of Arkansas. Appellants deny the said ordinance is unreasonable and void and deny the city was not authorized, or empowered, to license or regulate, the wholesaling of cider and alleged that dealing in cider, as appellee was doing, was a business properly subject to the regulation of the city council, but it denied that the license fee provided for was imposed for the purpose of raising a revenue; but say the sole purpose of said ordinance was for the regulation of said business and the fees provided therefor were intended to pay the necessary expenses of such supervision.

Appellants further alleged that in order to ascertain the extent of the fermentation of said cider, and the adulteration thereof, it was necessary to make tests of the said cider, and that said tests are expensive, and are required to be frequently made, and that the license fee of $ 15 per month will not more than pay for the inspection or tests of said cider, and the proper regulation of the sale thereof. Appellants also stated that it is a duty of the chief of police of said city, made so by resolution of the said city council, to inspect the places where cider is sold, and to report to the mayor any dealer who is handling intoxicating cider. A copy of said resolution was attached as an exhibit to the answer and it reads as follows:

"Section 1. That the chief of police of the said city of Texarkana, Arkansas, and his assistants are hereby instructed and directed to inspect all cider offered for sale by wholesale and retail dealers within the city of Texarkana, Arkansas, and he shall see that said cider so offered for sale is pure and wholesome.

"Section 2. That in the inspection of the business of any wholesale dealer he may require from said dealer such reasonable proof of the quality of the cider to be sold, as will satisfy him that the same is pure and wholesome.

"Section 3. In the inspection of cider sold at retail by dealers within said city of Texarkana, the chief of police shall see that the places at which cider is sold are not made tippling houses, and that the cider so sold at said places is pure and wholesome and that the same is not hard nor intoxicating; it shall also be his duty to see that the places where said cider is retailed are kept in a clean and sanitary condition.

"Section 4. If the chief of police shall determine that any cider sold within the city of Texarkana, Arkansas, is unwholesome or intoxicating, it shall be his duty to report the seller of said cider to the mayor of the city of Texarkana, with his recommendation as to whether or not the license of said dealer should be revoked.

"Section 5. The chief of police shall furnish to each person granted a license to sell cider, a copy of this resolution and the same shall be considered a part of said license."

The ordinance requiring the license was passed on the 27th of May, 1913, and the resolution fixing the duties of the chief of police, in regard to the inspection of the cider, was passed on June 24, 1913. The complaint in this cause was filed on the 2d day of July, 1913.

Appellee says that the resolution prescribing the duties of the chief of police was passed merely to bolster up the ordinance, and that it can not be considered in determining the validity of the ordinance.

Appellee demurred to the answer, and this demurrer was sustained, and appellants, electing to stand upon their demurrer, have appealed.

Decree reversed, and cause remanded.

Frank S. Quinn, for appellant.

1. Cider, being a beverage liable to fermentation and to becoming alcoholic, and, therefore, dangerous and harmful to the health, morals and good order of the community, is a proper subject for supervision and regulation by the municipality. Ample authority exists in the statutes for the enactment of the ordinance in question. Kirby's Dig., §§ 5461 and 5648, sub-div. 4.

However inapt may be the word "privilege," used in the ordinance, it should be construed as a regulation measure rather than an ordinance to raise revenue, since all presumptions are indulged in favor of the validity of a municipal ordinance, and it will not be declared void unless it plainly appears so. 88 Ark. 301; 52 Ark. 301; 64 Ark. 152. The presumption is also that the fee is for regulation where there is nothing to indicate a contrary intent. 36 Pa. 598; 230 Ill. 80, 82 N.E. 615. The power to regulate includes the power to license as a means of regulating. 41 Ark. 485; 23 Ark. 82.

2. Cider is an "alcoholic beverage obtained by the fermentation of the juice of apples--formerly used of all kinds of strong liquors except wine; a drink made from the juice of apples." 7 Cyc. 130. See also 35 F. 570; 44 Kan. 90; 24 P. 92; 2 L.R.A. 415.

3. If, under the general welfare clause, cities have the power to regulate the sale of milk, and to regulate butcher shops, etc., they certainly have the power to regulate the sale of cider; and even if it be regarded as a harmless drink, its sale might still be subject to proper regulation and restrictions. 101 Ark. 238; 96 Ark. 199; 3 McQuillin, Mun. Corporations, 1998; Tiedeman, Limitations of Police Power, § 102; 143 Ky. 773, 137 S.W. 509.

Similar ordinances regulating the sale of cider have been sustained in other States. See 44 Kan. 607, 10 L.R.A. 520; 41 P. 956; 47 P. 174; 51 P. 807; 53 P. 787; 54 P. 5; 65 S.W. 794; 151 N.C. 718; 66 S.E. 301; 26 L.R.A. (N. S.) 890, and note; 65 S. E. (Va.) 570, 26 L.R.A. 883; 72 S. E. (Va.) 101; 66 S. E. (Ga.) 941; 23 S.E. 120; 30 S.E. 670; Century Digest, "Licenses," §§ 5, 6, 19.

William H. Arnold, for appellee.

1. The subject of intoxicants is fully covered by sections 5454 and 5438 of Kirby's Digest, and there is nothing in subdivision 4 of section 5648 indicating any intention that a city council should be authorized to pass such an ordinance as the one in question. Had there been such an intention, it would no doubt have been expressed by proper words added to section 5454, supra. 31 Ark. 462....