Zerger v. Quilling

Supreme Court of Arkansas

Zerger v. Quilling

48 Ark. 157

CourtSupreme Court of Arkansas

DecidedNovember 15, 1886

StatusPublished

Cited by2 cases

This text of 48 Ark. 157 (Zerger v. Quilling) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Zerger v. Quilling, 48 Ark. 157 (Ark. 1886).

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Opinion

Cockrill, Q. J.

This is an action under the statute against a collector for demanding and collecting an illegal fee. (Bagley v. Skoppach, 43 Ark., 375.) The question is whether so much of section 4, of the act of March 8, 1879, as fixes the collector’s fee at .one per cent, of the amount paid for a liquor license, was repealed by section 156 of the revenue act of 1883. The provision of the first act was carried forward into Mansfield’s Digest, as section 4510; the other provision that is supposed to be inconsistent with it, appears as section 5797. Section 4510 has been amended and re enacted, allowing the collector a commission of two per cent, upon the amount paid, (see Acts 1885, p. 88), thus fixing the law with certainty for all cases arising since its passage. It is conceded that this controversy arose under, and that the rights of the parties were fixed by, the law as it stood prior to the amendment*

There can be but one construction of the meaning of the act of 1879, with reference to the collector’s commissions. He was to receive one per cent, of the amount of the liquor license. No other license is referred to in the act. The liquor license is not mentioned in terms in section 156 of the act of 1883. It refers generally to licenses which the clerk signs in blank and delivers to the collector, to be by him granted as a matter of right, to any applicant who pays the license tax and fees. But a liquor license is not in that class. The county court grants or refuses that license, and it does not go as a matter of course. Levy, ex parte, I¡J3 Ark., 1$-

“Now,” as was said in Blackwell v. State, 45 Ark., 90, “the revenue act of 1883 does not expressly repeal any provision of the license law of 1879” — the same acts now under consideration. “Nor do the two acts cover the same field of legislation ; one being directed to the general subject of raising revenues, and the other to the particular subject of regulating the sale of intoxicating liquors. So that if there is any repeal in this ease, it must be on account of an irreconcilable conflict between their several provisions.” (See, too, Brew County v. Bennett,43 Ark., 364.) But there is no such plain repugnance between the two provisions, that one must yield and give place to the other. Both may stand by construing the two to refer to different classes of licenses, as indicated above, and this, we think, was the intention of the legislature.

The judgment of the JDesha circuit court must therefore be reversed, and the cause remanded for a new trial.

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Cockrill, Q. J.

This is an action under the statute against a collector for demanding and collecting an illegal fee. (Bagley v. Skoppach, 43 Ark., 375.) The question is whether so much of section 4, of the act of March 8, 1879, as fixes the collector’s fee at .one per cent, of the amount paid for a liquor license, was repealed by section 156 of the revenue act of 1883. The provision of the first act was carried forward into Mansfield’s Digest, as section 4510; the other provision that is supposed to be inconsistent with it, appears as section 5797. Section 4510 has been amended and re enacted, allowing the collector a commission of two per cent, upon the amount paid, (see Acts 1885, p. 88), thus fixing the law with certainty for all cases arising since its passage. It is conceded that this controversy arose under, and that the rights of the parties were fixed by, the law as it stood prior to the amendment*

There can be but one construction of the meaning of the act of 1879, with reference to the collector’s commissions. He was to receive one per cent, of the amount of the liquor license. No other license is referred to in the act. The liquor license is not mentioned in terms in section 156 of the act of 1883. It refers generally to licenses which the clerk signs in blank and delivers to the collector, to be by him granted as a matter of right, to any applicant who pays the license tax and fees. But a liquor license is not in that class. The county court grants or refuses that license, and it does not go as a matter of course. Levy, ex parte, I¡J3 Ark., 1$-

“Now,” as was said in Blackwell v. State, 45 Ark., 90, “the revenue act of 1883 does not expressly repeal any provision of the license law of 1879” — the same acts now under consideration. “Nor do the two acts cover the same field of legislation ; one being directed to the general subject of raising revenues, and the other to the particular subject of regulating the sale of intoxicating liquors. So that if there is any repeal in this ease, it must be on account of an irreconcilable conflict between their several provisions.” (See, too, Brew County v. Bennett,43 Ark., 364.) But there is no such plain repugnance between the two provisions, that one must yield and give place to the other. Both may stand by construing the two to refer to different classes of licenses, as indicated above, and this, we think, was the intention of the legislature.

The judgment of the JDesha circuit court must therefore be reversed, and the cause remanded for a new trial.

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48 Ark. 157, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zerger-v-quilling-ark-1886.

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