City of Fayetteville v. Carter

Section 351 of Mansfield’s Digest provides that all municipal corporations shall have power “to regulate drumming or soliciting persons who arrive on trains or otherwise, for' hotels, boarding houses, bath houses or doctors,” and to license.such drummers, and to provide that each drummer shall wear a badge plainly exposed to view, showing for whom and for what he is drumming or soliciting patronage, and to punish by finé any violation of such provision. In pursuance of this section the council of the City of Fayetteville passed an ordinance forbidding all persons to drum or solicit patronage from persons who arrive on trains or otherwise, for any hotel or boarding house, without having first obtained a license to do so, and paid therefor the sum of $12.50, and making a violation thereof an offense punishable by fine. In a prosecution against appellee this ordinance, without any evidence of its invalidity except the ordinance itself, was held void, because the $12.50 was an unreasonable fee for the license.

1. Municipal Corporations ; Power to regulate drumming: License fee. The authority of a municipal corporation to pass an ordinance requiring solicitors of patronage for hotels and boarding houses to take out license and pay a reasonable fee therefor is conceded by both parties. The only question presented for our consideration is, is the fee fixed by the ordinance in question reasonable?

2. Presumption as to fee. The power to license and regulate granted by the statute was conferred solely for police purposes; and municipal corporations have no right to use it as a means of increasing their revenues. They can require a reasonable fee to be paid for a license. The amount they have a right to demand for such fee depends upon the extent and expense of the municipal supervision made necessary by the business in the city or town where it is licensed. A fee sufficient-to cover the expense of issuing the license, and to pay the expenses which may be incurred in the enforcement of such police inspections or superintendence as may be lawfully exercised over the business, may be required. It is obvious that the actual amount necessary to meet such expenses cannot, in all cases, be ascertained in advance, and that “ it would be futile to require anything of the kind.” The result is, 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. The City of Burlington v. the Putnam Ins. Co., 31 Iowa, 105, 106; Van Hook v. Selma, 70 Ala., 361; Van Baalan v. People, 40 Mich., 258; in re, Wan Yin, 22 Fed. Rep., 701; Johnson v. Philadelphia, 60 Pa. St., 445; ex parte Chin Yan, 60 Cal., 78; ex parte Gregory, 20 Texas App., 210; the Town of State Center v. Barenstein, 66 Iowa, 249; Fisher v. Harrisburg, 2 Grant's Cases, 291; St. Louis v. Weber, 41 Mo., 547; Carrigan v. Gage, 68 Mo., 541; the State, ex rel., etc., v. Gas Co., 37 Ohio St., 45; Clason v. Milwaukee, 30 Wis., 316. According to this rule we cannot say, and it does not appear, that the fee required in this case is unreasonable. The contrary is presumed.

Reversed and remanded for a new trial.