Appellant was convicted of 'violating an ordinance of the city of Hot Springs, and on this appeal questions the validity of the ordinance.
The ordinance provides thаt “the owner of all vehicles used upon the streets of the city of Hot Springs, provided for by the General Assembly of 1901 and prior acts, shall pay an annual tax or license fee, as followsThen follows an enumeration of the schedule of amounts payable on the various kinds of vehicles, distinguishing those kept for hire and those kept for private use. Undеr the latter class the ordinance prescribes a tax or license of $50, for each coal oil wagon, or wagon used for the purpose of delivering coal oil, gasoline, or other similar commodities,” irrespective of size, weight or capacity. There is a provision “for each wagon drawn by one or more horses used for hauling ice, twenty-five dollars each for the first two owned by any individual, firm or corporation, and twelve dollars and fifty cents each for all wagons over two owned by any individual, firm or cоrporation.” The maximum amount on other vehicles is fixed at $10 each, and some kinds as low as $1.50 each.
It.does not clearly appear from the face of the ordinance whether the amounts named therein are exacted as a tax or a license fee. It is somewhat ambiguous, as it provides that the amounts shall be paid as “án annual tax or license fee,” though we think its form and substance indicates that it was intended to tax, rather than to regulate. The ordinance contains no provision for inspection of vеhicles at all, and it expressly provides that “the funds arising from the license herein provided for shall be applied only to the maintenance and repair of the streets and alleys of the city.” We are therefore of the opinion that the ordinance must be treated as an attempt to tax, rather than to regulate.
Cities of the first class arе authorized by statute to tax the privilege of keeping and using wheeled vehicles. Kirby’s Digest, § 5649, act March 26, 1901.
It is doubtful whether there is any authority for municipal corporations of any grаde to regulate generally the keeping of vehicles for private use, though the regulation of vehicles used for transportation of articles through the streets is authorizеd by statute. Kirby’s Digest, § 5438. But, if we should treat the ordinance as one “to regulate the transportation of articles throughout the streets,” such as is authorized by statute, it is void on account of the unreasonable fee charged for the license. The only justification for charging a license fee at all is that a fund may be raised to defray the expenses of issuing thе license and “the enforcement of such police inspection or superintendence as may be lawfully exercised over the business.” Municipal corporations have no right to use the power to license and regulate as a means of raising revenue. Stamps v. Burk,
Now, if we treat the ordinance as one to tax vehicles, there appears to be a .distinct discrimination against the owners of сoal oil wagon or wagon used for the purpose of delivering coal oil, gasoline or other similar commodities. A tax of $50 is levied on each wagon used for that purpose, $25 each for ice wagons and $10 or less on all kinds of vehicles.
Can any reason be found for this discrimination except an arbitrary use of the power? We see nonе. The framers of the ordinance adopted a classification based upon no difference in kind, size, capacity or weight of the vehicles or of their relative tеndency to injure or wear the streets. It arbitrarily fixed a tax of $50 on vehicles used for transportation of one commodity and a tax of $10 or less on vehicles of the same kind, size and capacity used for other purposes. The ordinance can not be construed otherwise than as a discrimination against the owners of wagons used in the transportation of oil through the street. If this was a regulation ordinance, some distinction might be found in the regulation of oil wagons and those used for some other purpose. But, as we havе already seen, there is no attempt at regulation, and, if there were, the amount charged is unreasonably high as a license fee. The amount charged is a tax .for revenue purposes, which is unquestionably authorized by the Constitution and laws of the State, but which should be fairly and reasonably exercised without discrimination. We do not mean to say that the tаxing power may not be exercised against the owners of one class of vehicles without directing it against the owners of other kinds. It is the privilege of using the vehicle on the streets which is taxed, and not the vehicle itself (Fort Smith v. Scruggs,
While the constitutional guaranty that “all property subject to taxation shall be taxed according to value,” and that “no one sрecies of property from which a tax may be collected shall be taxed higher than another species of property of equal value,” does not apрly to the taxation of privileges, still the taxing power as to privileges is not without some limitations, in that there can be no arbitrary and unreasonable discrimination against persоns. The Constitution declares that no privileges or immunities shall be granted to any citizen, or class of citizens, which upon the same terms shall not equally belong to all citizens. Art. 2, § 18.
This principle is clearly recognized by this court in Fort Smith v. Scruggs, supra. Judge Riddick, in delivering the opinion of the court, said: “It is doubtless true that the Legislature could not arbitrarily select certain citizеns upon whom to impose the tax, while exempting others in like situation. But the rule of impartiality only requires that the tax shall be collected impartially of all persons in similar circumstances.” He was then speaking of an entire exemption of certain persons, but the same principle would, of course, apply to a partial exemptiоn or a discrimination by taxing one person or class of persons in like circumstances less than others of the same class.
It does not palliate the discriminatory effeсt of the ordinances to say that all persons who use wagons for the delivery of oil are taxed, for there is no sound reason why those who use wagons for that purpose shоuld be taxed for such use when those who use the same kind of wagons for other purposes are exempted entirely or are allowed to escape with a substantially, smaller tax. ■ The fact that a discriminatory tax applies to all persons of a given class does not render it any the less obnoxious as an unjust discrimination against a class of citizens. There must be some other reason for the classification than the use of the vehicle, unless the use itself affords substantial grounds for a distinction. Ex parte Deeds,
It may be said thаt the constitutional guaranty against the granting of special privileges and immunities to citizens or classes of citizens applies only to natural persons, and not to corporations (Western Turf Assn. v. Greenberg,
We are therefore of the opinion that the ordinance, so far as its discriminatory effect is concerned, is void.
Judgment reversed and cause dismissed.