McDonald v. City of Paragould

Smith, J., (after stating the facts). The authority of the city to enact the ordinance under section 5450 of Kirby’s Digest is not questioned, and there is no contention that the license fee required to be paid thereunder is unreasonable. It is contended only that the city is without power to regulate or restrict the operation of automobiles outside its limits, and that the business carried on by appellant was not within the limits of the city and subject to regulation by it under the terms of the ordinance. It is argued in support of this contention that if the city of Paragould, within which the passengers were collected and 'discharged in the business of carrying to and from the fair grounds beyond the city limits and to and from the other town, has the power to require the payment of any such license, that each city or town through and into which the automobile might go upon its different trips would have a libe power and that the payment of a license to each of them would toe so onerous and (burdensome as to be .absolutely prohibitive, /and that only that municipality in which the business or occupation is wholly carried on or conducted has any such power. There is no attempt upon the part of the city to extend its jurisdiction beyond its territorial limits in the passage of the ordinance, and it has .already been held that the owner of an automobile or motor vehicle .shall not ibe required to obtain any other license or permit to use and operate the same, than that required by Act 134 of the Acts of 1911. Helena v. Dunlap, 102 Ark. 131. But section 13 of said act expressly declares it shall not be construed “to affect the power of municipal corporations to make .and enforce ordinances, rules and regulations affecting motor vehicles which are used within their limits for public hire.” The court is of opinion that the ordinance, properly construed, means only to require the owner or keeper of an automobile “for the transportation of passengers for hire within the limits of the city” to pay the license fee, and, since the .appellant did not keep or operate his automobile for the transportation of persons for hire from iand to points within the city, that he was not using it for transportation of passengers for 'hire within the limits of the city, in violation of the ordinance. The terms of the ordinance are satisfied by holding that license taxes are to be imposed only by that municipality in which the business or occupation is carried on or conducted. Bennett v. Birmingham, 31 Pa. 15; Cary v. North Plainfield, 49 N. J. Law, 110, 7 Atl. 42; Commonwealth v. Stodder, 56 Mass. 562, 48 Am. Dec. 679; Gettysburg v. Zeigler, 2 Pa. Co. R. 326. Appellant’s 'business, not being .conducted within the city limits, a refusal to pay the license did not constitute a violation of the ordinance, and the judgment is reversed and the cause dismissed. Mr. Justice Kirby thinks the judgment should be affirmed, and .dissents from the court’s opinion. He is of opinion -that the statutes authorize the passage of such an ordinance which, by its terms, necessarily includes the business of operating an automobile for the transportation of passengers f or hire within the city limits, whether the journey of the passenger is begun and completed therein, or not. That since appellant took on his passen'gers at any place’in the city designated by 'him or where persons desired to embark, and, returning from outside the limits, discharged passengers likewise, and kept his machine within the city where isuch business was conducted, that he was violating the ordinance in the conduct thereof; that the .city not only had the authority to fix the license for the carrying on of business, as conducted by appellant, but has done so in the passage of the particular ordinance. Arkadelphia Lumber Co. v. Arkadelphia, 56 Ark. 370.