Helena v. Dunlap

• Citation: 143 S.W. 138,102 Ark. 131
• Parties: HELENA v. DUNLAP
• Decision Date: 22 January 1912
• Court: Supreme Court of Arkansas

143 S.W. 138

102 Ark. 131

HELENA v. DUNLAP

Supreme Court of Arkansas

January 22, 1912

Appeal from Phillips Circuit Court; Hance N. Hutton, Judge affirmed.

STATEMENT BY THE COURT.

Helena is a city of the first class, and its council passed an ordinance, requiring the residents of said city, owning and using vehicles of any description whatever, except bicycles upon the streets of the city, to obtain a license from the city collector for the privilege. J. B. Dunlap was a resident of the city, and owned and operated upon its streets an automobile for his private use. He obtained a license in compliance with the provisions of Act No. 134, passed by the General Assembly of the State of Arkansas at its 1911 session, but refused to obtain a license from the city collector as required by the ordinance. He was duly arrested and convicted in the police court for a violation of the ordinances. On appeal to the circuit court, Dunlap was discharged, the court holding that under the provisions of Act 134 of the General Assembly at its 1911 session, the ordinance was void as to persons owning and operating automobiles for private purposes only. The city of Helena has duly prosecuted an appeal to this court.

Judgment affirmed.

W. G Dinning, city attorney, for appellant.

1. The terms of Act No. 134, Acts 1911, are not repugnant to section 5649, Kirby's Digest. The purpose of the act is undoubtedly to provide for uniformity of regulation of the operation of machines over the highways and streets of the State to the end that drivers may not be subjected to varying local restrictions in different municipalities.

It can not be insisted that the provision in section 13 of the act that no owner of such vehicle shall, after he has complied with the provisions of the act, "be required to obtain any other license or permit to use and operate the same," is sufficient to take away the right of a city of the first class to impose a tax upon automobile owners as in the case of owners of other kinds of vehicles. Neither does the provision to the effect that such owner, after having complied with the provisions of the act, shall not be "excluded or prohibited or limited in the free use of his said motor vehicle," relate directly or indirectly to the power of municipalities to require such owner to pay a tax. Municipalities are not referred to in this connection in any manner whatever.

2. If however, it should be found that there is a repugnancy between the two acts, then that part of the later act which is repugnant to the former statute is void and inoperative because it creates an unlawful and unreasonable discrimination between citizens. 70 Ark. 549; 75 Ark. 542, 545; 85 Ark. 509.

John I. Moore, for appellee.

1. The act in terms repeals all acts and ordinances in conflict therewith. It is inconsistent with and repugnant to section 5649, Kirby's Digest, and therefore repeals it by implication, if not in terms. See sections 13 and 20 of the act. The act covers the "entire ground of the subject-matter of the former statute." 70 Ark. 25, 27.

2. The act is constitutional. 74 N.E. 1035; 70 Ark. 549; 87 P. 481.

OPINION

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

The ordinance in question was passed pursuant to the authority conferred by section 5649 of Kirby's Digest. The statute is as follows: "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."

In the case of Fort Smith v. Scruggs, 70 Ark. 549, 69 S.W. 679, the act was held valid. The court said: "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."

It is conceded that the only question presented by this appeal is to determine whether or not section 5649 of Kirby's Digest, in so far as it applies to automobiles, was repealed by Act No. 134 of the acts of the General Assembly of the State of Arkansas at its 1911 session. The latter act contains twenty sections, and section 13, which particularly applies to the question at issue, is in part as follows: "The owner of a motor vehicle who shall have obtained a certificate from the Secretary of State as hereinbefore provided shall not be required to obtain any other license or permits to use and operate the same. * * * Except in this section provided, no city, town or village or other municipality shall have power to make any ordinance, by-laws, or resolutions limiting or restricting the use of (or) speed of motor vehicles, and no ordinance, by-laws or resolution heretofore or hereafter made by any city, village or town or other municipal corporation within the State, by whatsoever name known or designated in respect to or limiting the speed of motor vehicles, shall have any force, effect or validity, and they are hereby declared to be of no validity or effect." The section also contains a proviso that nothing in the act contained shall be construed to affect the power of municipal corporations to make and enforce ordinances, rules and regulations affecting motor vehicles which are used within their limits for public hire.

Section 20 defines the public highways and local officers governed by said act:

"Section 20. Public highways shall include any highway, county road, State road, public street, avenue, alley, park, parkway, driveway, or any other public road or public place in any county, city or village, incorporated town or towns. Local authorities shall include all officers of counties, cities, villages, incorporated town or towns and townships."

There was no express repeal of section 5649 of Kirby's Digest by the statute enacted in 1911. In regard to repeals by implication, in the case of Wilson v. Massie, 70 Ark. 25, 65 S.W. 942, the court said: "The rule is that where the Legislature takes up a whole subject anew, and covers the entire ground of the subject-matter of a former statute, and evidently intends it as a substitute for it, the prior act will be repealed thereby, although there may be no express words to that effect, and there may be in the old act provisions not embraced in the new."

The statute, enacted in 1911, is very broad in its terms. It is plain that it intended to regulate the use of automobiles throughout the entire State, and, with certain exceptions stated in the act, to prescribe the only rules in respect thereto. The act provides that the owners of motor vehicles shall obtain a license from the Secretary of State and pay a fee therefor, and, when that is done, he shall...