Town of Monticello v. Banks

• Decision Date: 29 January 1887
• Parties: TOWN OF MONTICELLO v. BANKS
• Court: Arkansas Supreme Court

2 S.W. 852

48 Ark. 251

TOWN OF MONTICELLO v. BANKS

Supreme Court of Arkansas

January 29, 1887

APPEAL from Drew Circuit Court, Hon. J. M. BRADLEY, Judge.

Judgment affirmed.

C. D Wood and Z. T. Wood, for appellant.

The ordinance is a mere police regulation, and not a tax, and does not fall within the ruling of Peay v. Little Rock, 32 Ark. 31. The ordinance is not unconstitutional no tax was ordered levied, nor was any levied. It was simply a suit for work and labor done. The ordinance merely imposes a burden, which is called a police regulation. See 16 Pick 504; 8 Metc., 180; 13 N. J., 196; 1 Swan, 177; 2 Ind. 364; 6 Hump., 368; 4 R. I., 445; 7 La. Ann., 25; 36 Barb., 226; 46 N.Y. 503; 53 Pa. 280; 4 Bush., 464.

Wells & Williamson, for appellee.

This ordinance was passed under sec. 3228, Gantt's Dig. All that portion of said section which provides that the expense of such improvements may be assed "in proportion to feet front of the lot or land abutting on the street," and all ordinances founded thereon, are declared unconstitutional in Peavy v. Little Rock, 32 Ark. 31; Cooley Const. Lim., 622-3. The unconstitutional portion of this section is dropped from Mansfield's Dig., sec. 760.

This case comes clearly within the principle decided, in undertaking to improve streets by a system of taxation which is not "by a uniform rule" nor "according to value," etc. Const. 1868, art. 10, sec. 2; Const. 1874, art. 16, sec. 5; art. 19, sec. 27.

This tax is not ad valorem. It is not a "privilege tax," nor "police regulation," hence is nothing more than an unconstitutional attempt at taxation.

A municipal corporation has no inherent power to levy a tax. 30 Ark. 435; 33 ib., 497.

OPINION

SMITH, J.

This action was begun by filing with the mayor the following account:

R. T. Banks, In account with Corporation of Monticello, 1885, May 20.

To building pavement in front of buildings on block 21, lots 4 and 5, in the town of Monticello, by authority of the ordinance hereto attached, $ 50.

The ordinance referred to is in these words:

"Each and every person, the owner of any occupied lot, or part of lot, or block, upon the public square, shall be required to pave the street in front thereof, in workmanlike manner, and keep the same in good repair; and if any person shall refuse to comply with this ordinance, such pavement shall be made at the expense of the owner of such property; which expenses, with ten per cent thereon, may be recovered from such owner by an action of debt, brought in the name of the corporation, before the mayor."

This ordinance was declared to be invalid both by the mayor and by the circuit court, on appeal. And so the town took nothing by its suit. The only legislative enactment which is relied on as giving the town council power to pass such an ordinance is section 760, of Mansfield's Digest. By this section cities and towns have power, among other things, to improve...