NESLER V. PARAGOULD. 177 • NESLER V. PARAGOULD. .= Grim. 3831 Opinion delivered April 3, 1933. 1. MUNICIPAL CORPORATIONS—AUTHORITY TO LEGISLATE.—The authority of municipal corporations.tO legislate is limited to those powers expressly granted or those necessarily implied in order to make effective the; purpose for which express authoritY'is given. 2. LICENSES—MOTOR VEHICLES.—A city's right to tax motor vehicles not used for hire is :limited to Crawford & f Moses' Dig., § 7444. 3. LICENSES—MOTOR VEHICLES.7,A city, ordinance imposing a license fee on persons operating Totor vehicles for delivery held invalid as applied to a retail grocer delivering purchase§ te hi§ customers. Appeal from Greene Circuit Court ;. G.. E. keck, Judge; reversed. Wm. F. Kirsch, for appellant. Jeff Bratton, for appellee.' BUTLER, J. This case was - tried" before the circuit court, sitting as a jury, on an' agreed stateMent s of facts, - from which it appeared that the appellant; Nesler, is engaged in the grocery busines in the city- of Paragould, and, incident thereto, makes exclusive use Of a one-half ton inclosed truck making deliyeri0 to custoMers, for which no extra charge is made -over and aboVe the price charged customers who to fit the counter; and themselves carrY away the merchandiSe. Appellant had-been 'charged as a license fee $5 under city ordinance No. 416, which was amendatory of city ordinance NO.. 406, and Which provided that all person§; - firths or' cOrpOrations; except persons, etc., payino , drdY license on autornOtiVe vehicles, who owned and used other motor vehicles, shOuld pay a privilege' license of $5. -In addition , to this; there was demanded of apfiellant an additional $5 on said -delivery truck s under ordinance' No.. 417, Which"he declined to pay, and thiS actiOn was brought for a violation of that ordinanCe. The court found the aT5pellant guilty and assesseA'a fine against` him; from whiCh `jUdgment this appeal. • The question presented involves the validity of § 10 of ordinance No. 417. This ordinance, by its title, purports to ' be "an ordinance to license _and to regulate
- 17-8 ---NESLER V.. PARAGOU-Lii.--t187 - all persons, firms and. corporationslengaged in any of the following vocations, callMgs or businesses within the city limits of the city of Paraiduld; Arkansas." Section 1 of the ordinance makes it unlawful:for any person, etc., to engage in or pursue any_ of the _vocations, callings or businesses thereinafter . riamed in 'the . ordinance Without having first obtained .a :city' license, etc. Then .follow thirty-six sections naming various callings and vocations, such as livery stables, patent medicine vendors, and:fudng license fees. - It practically covers' all of the callings that COUld be iinagined in'which one would engage in'a citS T -nab size, of Parageuld. Section 9 of the ordinance flied the license' fee in varying 'amounts for horse 'drawn sand autoMotive vehicles used for draying purposes. Section 10' reads as follows : s ; : "For each person, firm or , , corporation opetating delivery wagons or, motor vehicles for delivery purposes the license , s.shall be as follows : "For each; two-horse wagon $5 per amium., ,, "For each onerhorse wagon $3 per annum: ',Tor each one-half ton truck $5 per annum: - "For each additional: half-ton . $5 per, annum." ; It . is this section which is questioned in the instant case. „The appellee seeks to find authority for the enact, ment r of : this section under the provisions _of § 7529,,of Crawford , Moses' Digest, which, prOvides in part as, follows : "Theyshall ; haye; power to , regulate -fh,e transportation, of_ articles :throughout , the streets and to prevent sinjury to . the: streets from : overloaded vehicles,!' proyides; , that.,` the city council shall have the- care;„supervision and .control -of all the public; .highway bridges, streets, alleys, public squares and commons:within the city; and shall cause the same to be kept open 'and in repair,, and free from nuisance," . and under ,§;:7618, Id., b y which . cities of the first and second class :are authprizal to.;enact:, ordinances for _classified occupation tax or license. The tight to enact ordinances is a power conferred on municipal corporations by legislative grant, and therefore its- authority to legislate is, limited _to the : authority
ARK:] NESLER 2 ) . . PARAGOULD. 170 found : an express grant of power, or which is necesSarily draplied h-1 'the express- grant in order tol:make effective the attainment of the purpose for which the express 'authority is given. : Argenta, v: : Keth,,, 130 Ark. 337, • 197: S. 'W.: 686: it , follows,' therefore, ;that, 'Unless the authority to enact § 10 of ordinance-, No.c 417 isto-be foUnd , in the Sections ; noted either , ekpreSslY Conferred or arising- froth neCessary implicationy the city council . is without power;;and 10 = Of the . Ordinance : is invalid. Counsel' for- apPel ee ts that the delivery hy a retail' grOcer of 'the-'pnrchaseS 'Made to his' efiStOtherS in a Vehicle : constitutes a-buSineSS and comes within the' Meaning of -§1 16181sitpfa, and 'that; aS he Says, the ve'- hides necesSarily occUpy the Streets to 'a greater extent' than vehicles operated by other 'persons ; that the Wer and tear on the g treets frOm -Their 'use a Matter' Of importance • which may be considered by the : codncil and the Use' of deliVery truckS •t adds to -the'Police . duties of the . city in' directing' `traffie; fdr"these 'reaSons" that part of § 7529, supra, and § 7607, supra, are applicable. We are of the opinion that neither of the sections relied upon by the:appellee,warrant the contention made. The appellant was-engaged in a retail grocery business, and the deliver `Of T the purchases made by his customers was Merely 'aii incident te' the' bUsiness itself and. could in :no just. sense =be . , deemed to be a separate: business. Section 7618, supra, aS before stated; provides for a 'classified occupation tax or : license fee' for the privilege of' Concluding any' bUsitieSs within the 'City. This is UOt tholnatUre of, the _ordinance under cOnsidera-- lion, but undertakes to impose iicense.,fees on , certain Speoific callings permitted . by -various-statutes: We think that part . of §-. 7529;-supra, *relied upon; has no application, for it' ManifeStly'referi tO' the transPortatiOn 'Of 'articles Of 'an UnnSnal Chara : ,cter . Which,. either from ` their wei ht oy some inherent quality, might work injury to the streets or inconvenience or might endanger the public. Section 7607, supra, relied on, relates merely . to the supervision and control of the publie ways, and gives auth6rity to the citY to keep them -Open, in repair and free from nuisance and can have no be'aring on the ques-
tion before us.' The city council has authority under § .7532 of Crawford & Moses' .Digest to regulate and license wheel vehicles kept for hire. This section would have no application, for appellant operates no_ vehicle for hire, but uses his truck in connection with his business as a retail grocer. By § 7444 of the Digest authority is conferred . on the city to require its residents to pay a tax not to exceed $5 per annum for each motor vehicle operated, and the ap-pellee has exercised that power under ordinance No. 416 amendatory of ordinance No. 406, and appellant has offered to comply with these provisions. It appears that the city's right to tax motor vehicles not used for hire is limited by § 7444, supra, and the burden sought to be imposed upon the appellant for the use of his truck in addition to the $5 prescribed by § 7444 is invalid and cannot be sustained. • The judgment of the trial court is therefore reversed, and the case against the appellant is dismissed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.