Conway v. Waddell

Wood, J. (after stating the facts.) Section 5438 of Kirby’s Digest gives cities and incorporated towns the power “to license, regulate, tax, or suppress hawkers, peddlers,” etc. A peddler is one “who goes from place to place and from house to house carrying for sale and exposing for sale the goods, wares and merchandise he carries.” Commonwealth v. Farnum, 114 Mass. 267; Re Wilson, 12 L. R. A. 624; 6 Words and Phrases, 5260, “Peddler,” and cases cited. Appellee sold his own book, but he was a peddler within the meaning of this statute and ordinance. The words “peddler” and “hawker” in the statute and ordinance are used in the ordinary and common-law acceptation of the terms, and in the sense in which these words are used in our Constitution. Art. 16, § 5. Under the statute it was within the power of the city to suppress peddling or to license it and fix a license tax or fee for regulation and for revenue. The language of the ordinance nowhere indicates that it was the purpose of the city council to suppress peddling. Had such been the purpose of the council, it doubtless would have made it unlawful to peddle, and made no provision for obtaining a license therefor. We do not feel warranted in saying from the language of the ordinance that the purpose of the council was to suppress peddling altogether. Peddling on the streets is not necessarily a nuisance in itself, and there is nothing in the ordinance to indicate that the council intended to treat it as such and to suppress it. On the contrary, the express language of sections one and two of the ordinance show that the intention of the council was to license it and to Require the payment of a tax or fee for such license in the sum of $25.00 per day. There is no prohibition of the 'business, but an express permission to carry it on upon the conditions prescribed. The tax was manifestly both for the purpose of regulation and revenue. The title of the ordinance declares that it was for the purpose of license and regulation, but the council also had the power to tax for revenue. Little Rock v. Prather, 46 Ark. 478. Considered as an ordinance to license and to tax for regulation and also- for revenue, it was void on its face.- It is inconceivable that it would require the sum of $25 per day to reimburse the city for the expense of issuing the license and the efficient police surveillance of the business, and the amount is still unreasonable when, in addition to the above, it is considered as a tax for the purpose of raising revenue for the city. In Fayetteville v. Carter, 52 Ark. 301, Judge Battrr, speaking for the court, said: “If the fee required is not plainly unreasonable, the courts ought not to interfere with the discretion exercised 'by the council in fixing it; and, unless the contrary appears on the face of the ordinance requiring it, or is established by proper evidence, they should presume.it to be reasonable.” But here no presumption can be indulged. For the fee and tax of $25 per day for the privilege of carrying on the business of a peddler or hawker on the streets or other public places in the, city of Conway, and the regulation' and taxation thereof is plainly excessive, and, as we have said, renders the ordinance for such purposes void on its face. The judgment is therefore affirmed.