Waters-Pierce Oil Co. v. City of Hot Springs

• Court: Supreme Court of Arkansas
• Writing for the Court: McCulloch
• Citation: 109 S.W. 293
• Parties: WATERS-PIERCE OIL CO. v. CITY OF HOT SPRINGS.
• Decision Date: 23 March 1908

Page 293

109 S.W. 293 WATERS-PIERCE OIL CO.
v.
CITY OF HOT SPRINGS. Supreme Court of Arkansas. March 23, 1908.

Page 294

Appeal from Circuit Court, Garland County; S. W. Leslie, Special Judge.

The Waters-Pierce Oil Company was convicted of violating a city ordinance of the city of Hot Springs, and appeals. Reversed and dismissed.

J. D. Johnson and Mehaffy, Williams & Armistead, for appellant. C. Floyd Huff, for appellee.

McCULLOCH, J.

Appellant was convicted of violating an ordinance of the city of Hot Springs, and on this appeal questions the validity of the ordinance. It provides that "the owner of all vehicles used upon the streets of the city of Hot Springs, provided for by the General Assembly of 1901 and prior acts, shall pay an annual tax or license fee, as follows." Then follows an enumeration of the schedule of amounts payable on the various kinds of vehicles, distinguishing those kept for hire and those kept for private use. Under the latter class the ordinance prescribes a tax or license of $50 for each coal oil wagon, or wagon used for the purpose of delivering coal oil, gasoline, or other similar commodities, irrespective of size, weight, or capacity. There is a provision "for each wagon drawn by one or more horses used for hauling ice, twenty five dollars each for the first two owned by any individual, firm or corporation, and twelve dollars and fifty cents each for all wagons over two owned by any individual, firm or corporation." The maximum amount on other vehicles is fixed at $10 each, and some kinds as low as $1.50 each. It does not clearly appear from the face of the ordinance whether the amounts named therein are exacted as a tax or a license fee. It is somewhat ambiguous, as it provides that the amounts shall be paid as "an annual tax or license fee," though we think its form and substance indicate that it was intended to tax, rather than to regulate. The ordinance contains no provision for inspection of vehicles at all, and it expressly provides that "the funds arising from the license herein provided for shall be applied only to the maintenance and repair of the streets and alleys of the city." We are therefore of the opinion that the ordinance must be treated as an attempt to tax, rather than to regulate.

Cities of the first class are authorized by statute to tax the privilege of keeping and using wheeled vehicles. Kirby's Dig. § 5649; Act March 26, 1901, p. 113, c. 66. It is doubtful whether there is any authority for municipal corporations of any grade to regulate generally the keeping of vehicles for private use, though the regulation of vehicles used for transportation of articles through the streets is authorized by statute. Kirby's Dig. § 5438. But if we should treat the ordinance as one "to regulate the transportation of articles throughout the streets," such as is authorized by statute, it is void on account of the unreasonable fee charged for the license. The only justification for charging a license fee at all is that a fund may be raised to defray the expenses of issuing the license and "the enforcement of such police inspection or superintendence as may be lawfully exercised over the business." Municipal corporations have no right to use the power to license and regulate as a means of raising revenue. Stamps v....