Newport v. Young

Hast, C. J., (after stating the facts). We do not think the license fee of $50 for each restaurant or Aviener stand is so large and so out of proportion .to any lawful pui’pose to which it could be applied in the use of the police poAver that it must be declared, as a matter of laAv, unreasonable and illegal. Tn Fort Smith v. Gunter, 106 Ark. 371, 154 S. W. 181, it Avas held that a charge ¡by the city of $25 per year, $15 for six months and $3 for one month as a license fee on restaurants, was not an unreasonable charge. In the very nature of things there might be a necessity for closer inspectioñ and regulation in one city tlian in another. Conditions vary greatly in different localities, and the city council is the judge of each case. The amount the city council has a right to demand for a license fee depends upon the extent and expense of supervision made necessary by the business in the city or town where it is licensed. A fee sufficient to cover the expenses of issuing the license and to pay the expenses which may be incurred in the enforcement of such police and sanitary inspections as may be lawfully exercised over the business may be required. The amount necessary to meet all expenses cannot in all cases be ascertained in advance, and expenses reasonably anticipated may be included. In fixing the fee the city'may take notice of local conditions and the extent and character of police regulation required. Fayetteville v. Carter, 52 Ark. 301, 12 S. W. 573, 6 L. R. A. 509; Texarkana v. Hudgins Produce Co., 112 Ark. 17, 164 S. W. 736, 51 L. R. A N. S, 1035; Kirby v. Paragould, 159 Ark. 29, 251 S. W. 374; North Little Rock v. Kirk, ante p. 554. When the testimony introduced by the city as to the requirements necessary for police and sanitary inspection of restaurants is considered, it cannot be said as a matter of law that a license fee of $50 is unreasonable and therefore illegal. It is next contended' that the ordinance was invalid because the evidence for the defendants shows that no police inspection of their places of business was made. Under the authorities cited the city council was the judge of whether local conditions required police and sanitary inspections. Whether or not the officers discharged their duty can be of no avail in declaring the ordinance valid or invalid. Neither can the fact that the money collected was used for another purpose be considered by us in testing the validity of the ordinance. There is a way of compelling officers to discharge their duties and to expend the city funds for the purpose for which they were collected, and the fact that they did not do so, if such be the fact, can iñ no manner affect the validity of an ordinance of this kind. It is next insisted that the ordinance is arbitrary and discriminatory because two of the defendants were operating- wiener stands and that they did not do nearly as much business as the other two defendants who were operating restaurants. This is a matter which we cannot consider. It may be that the situation and local conditions required more expense in regulating wiener stands than in regulating restaurants. This might be due from the character of the people frequenting the different places. In any event this was a matter addressed to the city council, and cannot be considered by the courts as affecting- the validity of licensing ordinances. The result of our views is that the court erred in declaring the ordinance on its face to be a revenue measure and therefore void. The judgment will be reversed, and the cause remanded for further proceedings according to law and not inconsistent with this opinion.