dissenting. Upon review, I agree with the decision of the court of appeals, AT&T Communications v. City of Little Rock, 44 Ark. App. 30, 866 S.W.2d 414 (1993), concluding the challenged levy in this case is an invalidly imposed tax, rather than a fee authorized by Ark. Code Ann. § 14-200-101(a) (1987). Section 14-200-101 (a), the statutory authority claimed by the City of Little Rock for its enactment of this levy, patently empowers the City to assess “terms and conditions” for occupancy of its streets, highways, or other public places, acting by ordinance or resolution, which are then deemed to be prima facie reasonable. However, I agree with the court of appeals that, upon a closer look, the substance of this levy was, in fact, a tax, and, as such, could not have been validly imposed without its adoption by the qualified electors of the City pursuant to a special or general election. Ark. Code Ann. § 26-73-103 (1987).
By the simple act of taking a closer look at the challenged levy, I contravene the majority opinion which, it appears, summarily concludes that since the challenged levy is called a “franchise fee” and is enacted by the City pursuant to a declared exercise of its statutory authority under section 14-200-101(a), any judicial analysis of the levy with a view to classifying it as “fee” or “tax” is inappropriate. In short, I am not persuaded that the City’s adoption of this levy via the mechanism of its statutory authority under section 14-200-101 (a) necessarily precludes a fee versus tax analysis, or renders that analysis inappropriate considering the fact that although a valid section 14-200-101 (a) “term and condition” may be enacted by ordinance alone, the enactment of a valid tax requires approval by the electorate. Hence, I am of the opinion that the analysis should be undertaken.
Clearly, it is difficult to classify this levy as a fee (and if so, what kind, e.g., franchise, license, user, occupancy, rent), or a tax. PSC Order No. 17’s findings of fact and conclusions of law summarize this point, in pertinent part, as follows:
2. How the charge imposed by the challenged ordinance is denominated will not be permitted to control the determination of its validity. The original enactment of the challenged ordinance, as well as its clarifying amendment, adopted in 1989, variously referred to this charge as both a fee and a tax. Subsequent renewals of this ordinance refer to it only as a franchise fee. It does not require extensive reading of the case law and municipal finance treatises to see that the technical historical and traditional distinction between a tax and a fee has become so blurred in modern usage and practical application that it has effectively lost its meaning. This blurring process was also noticed by Dr. Venus, [AT&T’s] expert economist. Both parties seem to agree that the essential characteristics of the charge levied by the ordinance ought to control how it is viewed, and not how it is labeled. This is the approach which has been used in this case in analyzing the ordinance in question. Validity is being determined by looking at such things as under what legal authority the City claims the power to enact such an ordinance and how it impacts financially the utilities upon which it is imposed as compared to how other ordinances impact other utilities operating within the City of Little Rock.
Order No. 17 at pp. 8-9.
This court has addressed the fee versus tax analysis in several decisions, most notably, City of Marion v. Baioni, 312 Ark. 423, 850 S.W.2d 1 (1993). Although the majority opinion declares that the instant levy, because it is a charge enacted pursuant to statutory authority, is “wholly different from those fees discussed and dealt with in Baioni,” I disagree and find the decision, and related cases cited therein, instructive as they outline the differences between a tax and a fee in the context of municipal enactments.
In Baioni, pursuant to a series of ordinances, the City of Marion charged “tapping fees” from builders or lot owners connecting onto the city’s existing water and sewer systems, and “access fees” from any person or entity connecting to the city’s transmission lines. These fees were applicable only to new development, and the funds collected therefrom were directed into separate accounts designated as the “water expansion account” and “sewer expansion account” for use solely to expand the city’s water and sewer system. The evidence indicated that the projected costs of water and sewer facilities per single family unit was $1,613.00, compared to the challenged connection fees which totaled $950.00 per single family unit.
The factors isolated by this court in its fee versus tax analysis in Baioni included the following:
1. A tax is a charge imposed for general revenue purposes; a fee is a charge imposed for the government’s provision, pursuant to its police powers, of a special service to the fee’s payors other than a service already in effect.
2. Proceeds of a fee are restricted for future use solely and exclusively to benefit the fee’s payors, and for no other purpose. The court here noted especially that the proceeds of the challenged levy were segregated from the City’s general revenue funds.
3. A fee must be fair and reasonable, and reasonably related to the benefits conferred upon the payors.
The court also noted that the label applied to the charge by the enactment or levy itself is not binding on the court’s analysis of the charge as fee or tax. The court found the challenged charges in this case were valid fees, rather than invalid taxes.
In City of North Little Rock v. Graham, 278 Ark. 547, 647 S.W.2d 452 (1983), this court invalidated a “public safety fee” enacted pursuant by city ordinance, without voter approval, as an invalid tax. The challenged ordinance was adopted by the City for the purpose of raising a sum certain to implement municipal police and firemen salaries. The contested charge was a flat monthly fee imposed on each household, business and apartment in the municipality, exempting certain low-income persons. Again, in its analysis, this court found noteworthy the fact that the charge was imposed for the purpose of raising revenues for contribution toward the cost of maintaining the municipality’s existing police and fire protection, rather than for providing a specific, special service for the payors of the tax.
Finally, in Holman v. City of Dierks, 217 Ark. 677, 233 S.W.2d 392 (1950), this court concluded an annual flat rate sanitation tax imposed on each business house and dwelling in the city for the purpose of paying for fogging the city with an insecticide periodically during the year was, in fact, a valid “fee for performance of a service” and not a tax.
Applying the factors utilized in the preceding case law to the instant levy, I note the following:
1. What was the purpose of the levy — to raise general revenues or to pay for a specific and special service rendered to the levy’s payors?
At the administrative hearing, the Deputy City Manager testified that the City recognized a need for additional revenues in the beginning of the 1988 budget cycle. Local telephone service companies were already paying a franchise fee. The City considered placing a franchise fee on long distance service companies using the public rights-of-way. In structuring the fee, the City knew how much revenue it was attempting to generate. This revenue, according to the Deputy City Manager’s testimony, was to be used for all municipal purposes without restriction, not dedicated to .any particular purpose, and not segregated from other general municipal funds. Unlike Baioni, in which the tapping fees were placed in segregated accounts to be solely used to expand the sewer and water systems and for no other purpose, the evidence in the instant case is that the fee was collected to supplement the City’s general revenues without special use restriction.
2. Are the proceeds of this levy restricted for a future use solely and exclusively to benefit its payors?
Clearly not. As evidenced by the Deputy City Manager’s testimony, the proceeds of this levy were always intended for use as general revenues for the City. The parties’ stipulated facts confirmed that, since its enactment, the City has collected monies pursuant to the challenged franchise ordinance, and that the City treats revenues received under franchise ordinances as general revenues with no restrictions on their use.
3. Is the levy fair and reasonable, and reasonably related to the benefits conferred upon the payors?
Legitimate franchise fees are supported by both statutory and case law, and will be upheld so long as the fee is not unreasonable. See, e.g., E. McQuillen, The Law of Municipal Corporations § 34.81 (3d ed. 1986). “Reasonableness” in this context is determined by comparing the fee with the cost of the services to be provided to the fee payors. Baioni, 312 Ark. 423, 850 S.W.2d 1. In this case, the “service” provided was the right to use the City’s public rights-of-way. This issue is discussed in detail in Justice Dudley’s dissenting opinion in this case, in which I join as to that part which holds that the contested levy in this case is an unreasonable and discriminatory charge (parts 11(C)-through IV therein).
In sum, after consideration of the substance of the challenged levy in accordance with the factors outlined above, I would find the levy is not a fee within the City’s authority to enact pursuant to section 14-200-101 (a), but is a tax which is invalid for lack of approval by the electorate in accordance with section 26-73-103. Finally, I note that, even if the instant levy were a fee rather than a tax, I would still find that it is invalid for the reasons that it is unreasonable and discriminatory in accordance with the rationale set forth in Justice Dudley’s dissenting opinion.
For these reasons, I respectfully dissent from the majority opinion.