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To the Honorable Mayor and City Council.
Gentlemen:
In response to your request to draw an ordinance levying a wheel tax under the provisions of our charter, I will state that before drawing the said ordinance I deem it my duty to advise you that in my opinion Section 101 of the charter of the City of Fort Worth which grants power and authority to the City Council to levy such tax is invalid and that no tax can be levied under said section which would be valid.
I regard that as settled inferentially at least if not determined by the case of Brown vs City of Galveston by the decision rendered by the Supreme Court and reported in the 75 S. W. R. The said Brown case upholds a tax upon vehicles which was levied in the way of a license fee and as a method of regulating under the charter of the City of Galveston which is totally different from said Section 101 of our charter and has in view a very different purpose in law.
The distinction made in the Brown case seems to be that a tax as a tax cannot be levied, but that a tax as part of a scheme of regulation may be fixed in the nature of a license fee and that the fact that revenue may be derived from such license fee will not deprived the license fee of legality, it being a mere incident to the regulation.
I would suggest to the Council that we have in our charter a section, to-wit Section 140 under which action may be taken similar to the action taken by the City of Galveston and that ordinance similar to the ordinances of the City of Galveston may be passed and they will be upheld by the courts, but such an ordinance would have to be prepared in such way as to show that regulation and not the production of revenue is the main purpose of the ordinance. Whether or not the Council desires to pass an ordinance whose main purpose is regulation is a question upon which I am not advised, and being of opinion that it is not the desire of the Council to have me prepare an ordinance under Section 101 in view
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of the fact that is would be clearly illegal, I come to the Council for advice as to whether or not an ordianance shall be prepared under Section 140, and if so I ask that I be instructed by the Council as to the kind and character of the regulation desired and the amount of the license fee that may be demanded.
Very respectfully,
E.C. Orrick City Atty
84
Be it resolved by the City Council of the City of Fort Worth:
That the City Engineer be and is hereby authorized to contract for the grading and gravelling of that portion of Broiles Street lying between the south line of Terrell Avenue and the north line of Rosedale Street in accordance with the ordinance this day passed by the City Council providing for grading and gravelling of the said street.
Zurn
