- - 582 - - - MORGAN V. JOHNSON - COUNTY. [187 MORGAN V. JOHNSON COUNTY. 4-3008 ' Opinion delivered June 12, 1933. -• 1. LICENSES-TRAVELING SHOWS-AUTHORITY OF COUNTY COURT.- Crawford & Moses' Dig.. § 9833, authorizing the eoiinty court to fix the amount of license and require its collection irom traveling
a ARK ;.] MORGAN V. JOHNSON COUNTY. 583 shows, was not repealed by Acts 1929, No. 63, § 4,.upon the same subject, nor by Acts 1929, No. 119, repealing act No. 63 ;' no such ° provision being made in either statute. 2. STATUTES—REPEAL ' OF REPEALING STATUTE.—When a statute is repealed and . the repealing staiute is afterwards repealed, the first statute is not thereby revived, unless by express words. 3. hICENSES—AUTHORITY OF COUNTY COURT.—The county court had power to fix the license for a traveling show at . $100 per day, though the judge previously told the producer that the license would- be $50 per week, and thereby misled her to her injury. 4. LICENSES—Aunioiwv OF COUNTY COURT.—In an action against a county to. recover alleged excessive license fees paid under protest, the faCt that county courts in other counties had fixed smaller or different fees : was no ground of objection to the fee fixed by defendant county. Appeal from Johnson Circuit Court ;: A. B. Priddy, Judge; affirmed.. ; STATEMENT . BY , THE COURT. This appeal is prOsecuted from a judgment denying appellant the right recover from' ;JohnSon 'County license taxes required fe be paid on:her show 'and alleged to have been wrongfully levied and collected. Appellant operated •a • -traveling tent show giving entertainments and eXhibitions through this and several other states. Her advance • ublicity 'agent applied-to the county judge of Johnson . County, where the show had beerk exhibited before,;for alicerise and was told by the judge. that the license would be issued upon the- payment of $50 for the week's exhibitions.. The agent accordingly "billed" tbe town and .advertised extensively in the nearby territory ; and the .day . before the time. advertised for the show to begin the county judge saw the:advance agent on the -street and told bim that tbe license fee• for . the show would-be $100 per day, and gave him no- reason for his ;change of front. On the . question. • - The Hila Mbigan Show 'arrived in Clarksville on November -2, 1929, aceOrding to its schedule and was' required to pay a county license feo of $100 per day or $600 for the week, and paid addition thereto a city license.. • These fees were' paid under; protest; as was noted on the back of the license by the . sheriff.
584- -MORGAN V. JOHNSON COUNTY. [-187 On November 2, the. county .judge entered the following order : "In re : License for Tent Shows and Carnivals in Johnson County, Arkansas : From the 2d day of November, 1929, all shows above described will be _ $100 per day. This order to remain in full force and effect until rescinded by order of this court. E. C. Porter, .Judge." • An appeal was taken from the order fixing the fee at $100 per day to the circuit court, and on November 9, 1930, she filed an account in the Johnson County court claiming the sum of $550 with 6 per cent, interest from November 4, 1929. The claim was not passed on, and a petition was filed in the circuit court for a writ of man-damus .and served upon the county judge on the 12th day of December, 1931. . . In some counties of the State the appellant did - not have to pay a tax for operating the show; and she alleged ber damage was less by paying the undue exaction and exhibiting in Clarksville than it would have been had she attempted. to show elsewhere, it being too late to advertise the change. The court refused to allow the claim, and from the judgment tbis appeal is prosecuted. Robert Bailey, for appellant. KIRBY, J., (after stating the facts). It is not disputed that the county judge had told the advance agent of appellant upon his inquiry that the license for the exhibition would cost $50; that advertisement of tbe show had- been extensively made throughout the. adjacent territory before tbe show arrived ; and that the County judge bad then, on his own motion, told the agent the license fee would be $1.00 per day when it was too late to arrange for an- eXhibition at any other place. The appellant insists that the county court was without authority to fix the license or require the payment of it, and that it was an unwarranted exaction wrongfully imposed, which she was entitled to recover. • The statute, § 9833, Crawford & Moses' Digest, provides : " Third. : 'The county court of each . county shall fix the amount of 'county tax for each and• every
ARK.] MORGAN V. JOHNSON COUNTY. 585 public exhibition given by- any perSon or persons m any._ county in. this . State; any part of the proceeds. .of which is for his or personal profit; and such licenses may be fixed for each eXhibition, or monthly, quarterly or annually, in the discretion of the county conrt. Provided, that this section shall not apply to • theatres and opera houses in•,cities of the first and second class and incorporated . towns where no- liquor is sold bY the management or on the premises. Provided further, that in cities of twenty thousand inhabitants and over the license for theatres and oPera houses where no liquor is sold on the premises shall be one • hundred dollars for county purposes. The excePtiOnS in this act shall not be construed to apply to what is generally known as theatres comique or variety theatreS." • The county court made the order fiXing the license under autbority -of this Statute, and appellant claims that there is no authOrity for his fixing the license, insiSting that any authority granted under the statute 'had been abrogated by . the' later Statute called "The Onmibus Bill," abt 63 of 1929, .§ 4 of 'which required that shows and exhibitions of the . same kind . as that of appellant shall pay a license of $25- per .day; ete, which act . Wa.s later repealed by act -419. of 1929, nO provision being Made therein fer the levy and . collection of such tax. The statute grants the county court authority to fix the amount and require the. collection of licenses for such exhibitions and performances as were made by appellant, and such grant of power- wa8 not withdrawn by the Legislature in enacting a general statute covering the subject and fixing the amount of 'the license fee to be paid for exhibitions of the . kind -made by• appellant, .nor by the later rebeal of such r general statute, no such provision being made in either statute. - -It -is true• that ' when a- statute is repealed and the repealing statute is afterwards repealed, the. first statute is not thereby revived unless by express word§ (§ .9757, Crawford & Moses' Digest), and that there are, no .such express words . of reviVal in the last statute; but neither was- there an express repeal of the first grant of authority
nor one -necessarily implied, but only a- fixing -.of••the. amount of the licenses by the Legislature which it could. do without any withdrawal of authority already granted to the county court, the exercise of :such authority by it being only limited to conform to the later statutes made so long as they were in force. - The. county court had the authority to fiX and require the license paid, and could do so without regard to the county judge's apparent, bad faith in telling the. appel-.. lant's agent on the street what the amount of the license. fee would be And misleading him to his injury in putting him to the expense of the advertisement of the show and later .disregarding his agreement and: fixing the fee at a much greater amount. The court, of course, was in no wise estopped to fix the fee undei' the statute at any. .sum without regard to what the judge might have told the agent of appellant on the street would . be, done. The fact that Otler courts in other counties. had : fixed smaller or different fees for licenses : required paid for exhibitions of . such nature as that of appellant affords no grOund of objection to the- fee fixed- by the Johnson County judge, it not -being a regulatory-charge for a-particular service rendered as in some cases requiring inspection but a tax authorized to be levied in accordance with :the statnte.. No error was committed in denying the claim of, appellant, and the judgment is accordingly affirmed.
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.