Fort Smith v. Scruggs

• Citation: 69 S.W. 679,70 Ark. 549
• Parties: FORT SMITH v. SCRUGGS
• Decision Date: 16 July 1902
• Court: Arkansas Supreme Court

69 S.W. 679

70 Ark. 549

FORT SMITH v. SCRUGGS

Supreme Court of Arkansas

July 16, 1902

Appeal from Sebastian Circuit Court, STYLES T. ROWE, Judge.

Reversed.

STATEMENT BY THE COURT.

The city of Fort Smith, a city of the first class, on the 17th day of January, 1901, duly enacted and published an ordinance, the first section of which provides as follows to-wit:

"That hereafter it shall be unlawful for any person, firm or corporation of the city of Fort Smith to keep and use any wheeled vehicle, including cart, buggy, carriage, surrey delivery wagon, or any other vehicle, except bicycles without first having obtained a license therefor."

The ordinance also designates the amount of license fees to be paid for different kinds of vehicles, among them being the following: For a one-horse buggy or phaeton carrying not more than two persons, $ 2 per annum; $ 1.25 for six months. For each one-horse delivery wagon, $ 4 per annum; $ 2.50 for six months."

Another section provides that "all licenses specified in this ordinance shall be collected in gold, silver, or United States currency, and shall be paid into a fund known as the Street Fund, and shall be kept separate and apart from all other moneys of the city and the said fund shall be used exclusively for the purpose of repairing and improving streets."

The ordinance further provides that a violation thereof shall be a misdemeanor, punishable by fine of not less than $ 5 nor more than $ 25.

N. F Scruggs, a resident of the city, engaged in the retail grocery business, kept and used in the city for pleasure driving a one-horse buggy. He also kept and used there a one-horse delivery wagon, with which he delivered groceries to his customers free of charge. He did not take out a license for either of his vehicles, and was arrested and tried and fined for using his vehicles without a license. He appealed to the circuit court. On a trial in the circuit court the presiding judge declared the law as follows:

"The act of the general assembly of this state, passed in 1901 granting to cities of the first class the right to tax residents therein who keep and use wheeled vehicles is unconstitutional and void, in this, that it is either an attempt by the legislature to authorize said cities to impose and levy a direct tax upon wheeled vehicles as property in excess of the amount limited by the constitution and in violation of its provisions relating to taxation, or it is an attempt to create out of the common right to use vehicles a privilege and thereupon to tax the same. The legislature not having the power to authorize plaintiff by its common council to pass the said ordinance, the same is invalid."

The court thereupon found the defendant not guilty, and gave judgment accordingly. The city appealed.

Judgment reversed and cause remanded.

F. M. Jamison, for appellant.

If the legislature can impose such a law, it can also delegate the authority to municipal corporations. Const., 1874, art. 3, § 23. The power to tax is inherent, and can only be restrained by the constitutional provisions. Cooley, Const. Lim. 587; Tied. Lim. Pol. Pow. 471; Desty, Tax. 81; 46 Ark. 477; Cooley, Tax. 4; 4 Pet. 563; 4 Wheat. 430; 15 Wall. 300. The act is not in conflict with the constitution. Beach, Pub. Corp. 1356; 7 Mo.App. 474; 58 N.J.L. 604; 45 Ohio St. 63; 41 P. 826; Burr, Tax. § 54; 22 So. Rep. 627. Constitutional provisions in regard to taxation do not apply to municipalities. 13 Ark. 752; 21 Ark. 40; 27 Ark. 625; 33 Ark. 442; 44 Ark. 134; 46 Ark. 479. It is no tax upon property. 73 Me. 526; 46 Ark. 471; 7 Mo.App. 469; 36 L. R. A. 413; 31. Gratt. 646; 64 Ga. 128; 120 Ala. 623; 29 L. R. A. 608; 47 L. R. A. 205; 36 L. R. A. 416. The courts have always upheld such acts. 7 Mo.App. 468; 70 Mo. 562; 45 Ohio St. 63; 31 Pa.St. 16; 43 Ill. 47; 8 Heisk. 524; 6 S.W. 911; 94 Mo. 630. The ordinance is not void. 46 Ark. 482; 46 Ark. 328; 37 Ark. 356; Black, Int. Laws, 96; Cooley, Const. Lim. 209; 41 N.J.L. 71; 39 Ind. 429; 53 Mich. 367.

Mechem & Bryant, for appellee.

A special tax imposed for the right to keep and use a vehicle, upon which all other taxes have been paid, is void. 141 Mo. 619; 80 Ky. 656; 6 So. Rep. 911; 62 Ga. 645; 31 Tex. 277; 175 Ill. 445; 53 L. R. A. 456; 2 Ark. 288. The legislature and a municipality have no power to impose a tax on such vehicles. 12 Mass. 252; 15 Ohio 625; Tied. State and Fed. Control, § 119; 13 Ark. 782; 71 Ill. 269; 77 Ill. 156; 78 Ill. 144; 46 Mo. 575; 80 Ky. 657; 98 Ky. 344; 3 Sneed, 120; Cooley, Tax. 596, 23 So. Rep. 141; 43 Ark. 52; Cooley, Const. Lim. (5th Ed.), 47, 208, 603; 26 Ark. 255; 98 N.Y. 106; 84 N.Y. 91; 129 Mo. 163; 33 W.Va. 179; 16 Pick. 121. The tax is void for want of uniformity. 19 F. 162; 25 Ark. 289; 32 Ark. 31; 48 Ark. 251, 370; 57 Ark. 554; 22 So. Rep. 627. The tax is void because it requires payment in gold, silver, or United States currency. Const. 1874, art. 16, § 19; 32 Ark. 496.

F. M. Jamison, for appellant, in reply.

Art. 17, § 10, Const. 1874, has reference to general taxes, and not taxes for a special purpose. Sand & H. Dig. § 1002; 36 Ark. 581; 33 Ark. 436; 28 Ark. 577.

OPINION

RIDDICK, J., (after stating the facts.)

This is an appeal from a judgment rendered in a case where a resident of the city of Fort Smith was prosecuted for keeping and using a wheeled vehicle in that city without having a license therefor. The question in the case relates to the validity of the city ordinance which imposes a license tax upon residents of the city for the privilege of keeping and using wheeled vehicles upon the streets of the city. Our statute on that subject is as follows, to-wit:

"Cities of the first class are hereby authorized to require residents of such city to pay a tax for the privilege of keeping and using wheeled vehicles, except bicycles, but such tax shall be appropriated and used exclusively for repairing and improving the streets of such city." Acts of 1901, p. 113.

There can be no doubt that the language of this act is broad enough to authorize an ordinance taxing residents of the city for the privilege of keeping and using wheeled vehicles upon the streets of the city. If the act is valid, it follows that the ordinance, if properly passed, is valid unless void because it goes beyond the authority conferred by the statute. It is admitted that the ordinance was properly passed, and the most important question raised by the appeal relates to the validity of the statute upon which the ordinance is based.

The first objection urged against the statute is that it attempts to authorize double taxation. It is said that, as the defendant has already paid the general state and city taxes on his buggy and wagon, the attempt to make him pay a license fee for the privilege of using them is really an attempt to levy an additional tax upon his wagon and buggy. Counsel say that a tax on the use of an article is a tax on the article itself. While this may be true of a piano, bedstead, or cooking stove, the use of which involves no injury or detriment to the public or its property, as to wheeled vehicles it is different, for they are made to be used upon roads and streets. The streets belong to the public, and are under the control of the legislature, whose province it is to enact laws for their improvement and repair. The chief necessity for keeping improved streets is that they may be used for the passage of wheeled vehicles, and the wear of the streets caused by the passage of such vehicles over them makes necessary constant and expensive repairs. For this reason, no doubt, the legislature considered it to be equitable and just that owners of such vehicles should, in addition to the general tax upon their property, pay something for the privilege of using the streets as driveways, the amount paid to go towards keeping the streets in good repair. This is what the legislature attempted to do.

The act, we think, plainly shows that there was no intention to authorize a tax upon vehicles or other property. It authorizes only a tax upon the privilege of keeping and using vehicles upon the streets of the city, and it requires that this tax shall be used exclusively for repairing and improving the streets of the city.

A resident of the city may keep and use at his place in the country as many vehicles as he pleases, but he is subject to no tax, under this statute, unless he uses them on the streets of the city. He can keep and use vehicles anywhere in the world, except on the streets of the city of his residence, and he is not liable to the tax. The license fee imposed is, then, not a tax upon property, but is in the nature of a toll for the use of the improved streets. In other words, it is the privilege of using vehicles on the improved streets, and not the vehicle itself, that is taxed. We are therefore of the opinion that the statute is not subject to the criticism that it authorizes double taxation, and the contention of the defendant on that point must be overruled.

Having reached the conclusion that this ordinance does not attempt to tax property but to tax a privilege, it follows that the provisions of our constitution requiring that all property "shall be taxed according to its value," and in such manner as to make the same equal and uniform throughout the state, do not apply, for they refer to taxes upon property only. Little Rock v. Prather, 46 Ark. 471; Baker v. State, 44 Ark. 134; Washington v. State, 13 Ark. 752.

The next question presented is whether the legislature has the power to authorize cities to impose a tax upon the privilege of driving vehicles upon the public streets. The contention on this point is that a resident of a city has a right to drive upon the public streets, and that the right to do so...