Gunther v. City of Hot Springs ( 1915 )

Kirby, J.

(after stating the facts). The sole question for determination on this appeal is whether a city can require of a 'dealer engaged in selling liquors wholesale and retail from the same storeroom, who had paid license as a retail liquor dealer, both city and county, to pay license as a wholesale dealer in malt liquors.

.Municipal corporations are given authority' under section 5438, Kirby’s Digest, Act of May 23, 1901, “to license, regulate, tax or suppress * * * ” not only “tippling houses, dram shops,” but also “any dealer in wines 'and liquors, by the quantity or otherwise, than as keeper of tippling houses and dram shops. ’ ’

After it was decided in Tuck v. Town of Waldron, 31 Ark. 464, that the Act of 1875 did not authorize cities and towns to require persons engaged in the sale of wines and liquors by the quantity or otherwise, than as keepers of tippling houses or 'dram shops to pay license, the law was amended, granting them such power.

Even if it is true, as contended by appellant, that one who engages in business as a retail liquor dealer, after having paid the licenses required therefor, may engage at the same place in the sale of malt liquors wholesale without the payment of the State and county tax or license as a wholesale liquor dealer, it does not follow that he can so engage without the payment of the license required by the city as such wholesale dealer.

The statute of March 31, 1887, sections 5109-5111 Kirby’s Digest, providing for the levy and collection of a State and county tax on wholesale dealers in malt liquors, expressly excepts from its provisions those who have procured retail license as provided by law. The City of Hot Springs could doubtless have made such, an exception, but it has not done so, and having the power to require the payment of both licenses, the appellant was rightly convicted for selling malt liquors wholesale in violation of the ordinance, notwithstanding they were sold in the.same room in which his retail 'business, which was duly licensed, was conducted.

Neither is there any merit in appellant’s contention that the ordinance is void because the license fee required is unreasonable, since no price is fixed in the statute authorizing the granting of licenses to wholesale and retail liquor dealers Iby municipalities. Wallace v. Cubanola, 70 Ark. 395; Siloam Springs v. Thompson, 41 Ark. 464.

The judgment is affirmed.