Waters v. Leech

Dicebíson, Judge, delivered the opinion of the court: There is but one question involved in the decision of this case: Had the corporation of the city of Little Rock power and authority to pass an ordinance requiring the city Constable to attend at the Theatre during its performance, and allowing a compensation therefor, to be paid by the proprietor or exhibitor? The corporation of the city of Lillie Rock possesses only such legislative powers as are prescribed by Ihe charter from which it derives its existence. It exercises a delegated power only; and must in all its acts, confine itself strictly within the limits of its authority. The question then presents itself directly: What are those powers as connected with the subject immediately before us? It is of no consequence as to the period at which a charter to the citizens of Little Rock was granted, or what amendments were made thereto prior to the 22nd February, 1838, when an act “entitled an act supplementary and amendatory of an act to incorporate the city of Little Rock, approved November 5, 1835,” was passed, of which the 4th section declared “ that the said Mayor and Aldermen, or a majority of them, shall have full power and authority from time to time, and at all times hereafter, to hold-a common council in said city at such places as they may designate, and to make such by-laws, ordinances and regulations in writing, not repugnant to the constitution and laws of this State, and the same to enforce, revoke or alter, as to them may appear necessary for the good order and government of the city and the inhabitants thereof; and to make, limit and impose reasonable fines and amercements for all misdemeanors, disorders, neglects and nuisances, committed within the limits of said city, upon persons committing them therein, and for which the laws of the State have not provided an ample remedy.” The third section of the same act makes various provisions, all refer-ing specially to “ the better preservation of order and the enforcement of the laws of said city. These are the only legislative powers with which the corporation is invested. The power to make by-laws is given to corporate bodies to enable them to fulfil the purposes of the institution, and must necessarily be confined to such objects and persons as are specially defined in the charter. The corporate powers are not only limited, but must he reasonably exercised in sound discretion, and not only strictly within the limits of the charter, but in perfect subordination to the constitution and the general law of land, and the rights dependent thereon; and that power, if properly exercised, may be enforced by just and competent penalties. These are the rules by which all corporate bodies must be governed, and it remains for us to determine whether the ordinance or by-law, by which the plaintiff was required to pay two dollars and fifty cents on each exhibition to the defendant in error, is properly within the limits of the grant to the corporation. By one ordinance they declared that “ there shall be levied and collected as a city tax the sum of twenty dollars for each month on every circus, show, menagerie, theatre, or exhibition kept, opened, or exhibited in this city.” Subsequently they passed another ordinance or by-law that “it shall be his (the Constable of the city) duty to attend every theatre, menagerie, circus, exhibition and show kept, opened, or exhibited in this city, on every night of such exhibition or performance, and to enforce order, and suppress riot and tumult, for which service he shall be entitled to receive of the owner or exhibitor, for each night of his attendance, the sum of two dollars and fifty cents,” both of which said ordinances were in force at the same time. Whether the corporation had power to impose the tax of twenty dollars we shall neither inquire into or determine as no objection is raised to it. That under the charter the corporation had power to make proper and reasonable by-laws, ordinances, and regulations for the preservation of the good order and government of the city, and its inhabitants, cannot be doubted. But we are at a loss to determine by what name the imposition of the two dollars and fifty cents to be paid to the City Constable shall be called or known. The exhibition or performance mentioned certainly cannot be considered as either a misdemeanor or disorder, a neglect or nuisance; for, by the payment of the twenty dollars per month, the corporation had rendered it legal, and could therefore impose no fine or amercement unless there had been an actual violation of some known and established law of the land. It cannot be considered as a tax, because this power is limited to taxable property situate within the city, to a poll-tax, upon trading boats vending produce and merchandize at the landing of said city; and to licensing dram shops or drinking establishments. We have seen that the object of the charter is the preservation of good order within the city, but that the power by which this is to be effected is not only limited, but the means by which the funds are to be raised to meet the expenses of so doing are expressly defined and pointed out; and that the exercise of these powers must not only be confined to such objects and purposes as are specially defined in the charier, but that they must be reasonably exercised. As previously remarked, no objection is raised to the twenty dollars imposed by the first ordinance. But we are at a loss to know by what power, after authorizing the exhibition at the theatre, and thereby rendering it lawful, an additional imposition of two dollars and fifty cents for each performance should be ordered to be paid to the City Constable by the owner or exhibitor, who is no party to the contract, and who did not require the services of the Constable. Is it reasonable? The tax of twenty dollars per month is two hundred and forty per annum, and if the performance should continue during the year, it would add to the emoluments of the defendant in error seven hundred and thirty-two dollars and fifty cents, for which the other would derive no benefit or consideration. Suppose the corporation was to pass an ordinance that the City Constable should attend every day upon each and every dram-shop, or other drinking establishments, and that the owner or keeper thereof should pay such Constable two dollars and fifty cents per day therefor, would such an ordinance be considered within the proper and legitimate authority of the charter? Would this be a reasonable exercise of power? If the principle is admitted that under the general power of providing by ordinances and by-laws for the preservation of good order within the limits of the city, the corporation can do this, where, we would inquire, is the limit to their authority ? They may, with the same propriety, make his duty extend to standing guard over dram-shops and drinking establishments, and at the stores of the citizens, thereby rendering those laws and ordinances oppressive and injurious, under the specious pretence of suppressing riot or tumult which might or might not take place. It cannot be considered as a fee to the City Constable for services performed, but an indirect tax levied upon the plaintiff in error, in contravention of the powers of the. charter. If, in the imposition of a fine or amercement for the commission of a misdemeanor or disorder committed within the limits of the city, and for which the laws of the State have not provided an adequate remedy, the services of the City Constable should be necessary in - serving of process, &c., and-the party prosecuted is convicted, then indeed he may become liable for the fees. And if a neglect of some duty is to be enforced, or a nuisance removed, and the services of the Constable required, he must look to the corporation for compensation. And it is for the purpose of meeting such expenditures that a tax is authorized to be levied. But it surely would not be contended, that if a party was prosecuted for the supposed violation of some by-law or ordinance ■ and acquitted, that he could be rendered liable to pay the Constable his fees. And yet this would be equally as just, as reasonable, andas much within the limits of the charter, as to allow the City Constable two dollars and fifty cents for his attendance at each and every performance at a theatre. There can be no doubt, in our opinion, that the corporation transcended their powers, and that so much of section 10, of chapter 5, of the revised ordinances of the city of Little Rock, adopted February 22d, 1839, as declares that the City Constable “ shall be entitled to receive of the owners of exhibitors for éach night of his attendance, the sum of two dollars and fifty cents,” is repugnant to the charter of the corporation of the city of Little Rock. The judgment of the Circuit Court must therefore be reversed with costs.