Com., for Use and Ben. of City of Hazard v. Day

• Decision Date: 10 June 1941
• Parties: COMMONWEALTH, for Use and Benefit of CITY OF HAZARD, v. DAY.
• Court: Kentucky Court of Appeals

152 S.W.2d 597

287 Ky. 176

COMMONWEALTH, for Use and Benefit of CITY OF HAZARD, v. DAY.

Court of Appeals of Kentucky

June 10, 1941

Appeal from Circuit Court, Perry County; Roy Helm, Judge.

Fedrow Day was charged with the violation of an ordinance of the City of Hazard placing a tax on nonresident liquor wholesaler delivering his products to customers within municipality by means of his own trucks. From a judgment for the defendant the Commonwealth of Kentucky, for the use and benefit of City of Hazard, appeals.

Affirmed.

Hubert Meredith, Atty. Gen., and W. E. Faulkner, of Hazard, for appellant.

Dodd &amp Dodd, of Louisville, and E. C. Wooton, of Hazard, for appellee.

CAMMACK Justice.

This case presents the question as to whether a municipality may place a tax on a nonresident liquor wholesaler, jobber or distributor, who delivers his products to customers within the municipality by means of his own trucks. The lower court held that the City of Hazard could not levy such a tax and the City prayed an appeal; however, it did not perfect it. The appellee has filed a copy of the record in accordance with the provisions of section 741 of the Civil Code of Practice, and has asked that the judgment be affirmed. See Brown v. Thompson, 285 Ky. 410, 148 S.W.2d 285.

Since we concur in the views expressed by the trial judge in his opinion denying the right of the City to levy the tax, we quote it herein and adopt it as our own. It follows:

"This is an appeal by the defendant from a judgment of the Hazard Police Court, pursuant to section 3519, Kentucky Statutes to test the validity of an ordinance of said city, and is under submission to the court for final opinion and judgment upon an agreed statement of facts.

"In 1938 the City amended its ordinance fixing license fees for the various phases of the liquor business carried on in the city, and the section of said ordinance complained of in this case, when so amended, reads as follows:

"'No permit or license shall be granted to a wholesaler, jobber, or distributor until such person has secured the license as such wholesaler, jobber or distributor as required by the laws of the State of Kentucky, and until the said person has paid into the City Treasury the sum of $200.00 for the privilege of acting as such wholesaler, jobber or distributor for the period of one year.

"' Provided: that where such wholesaler, jobber or distributor maintains a store, plant, warehouse or distribution point outside of the City of Hazard and delivers liquors to customers within the corporate

limits of said city by means of his own trucks, having first obtained the license as such wholesaler, jobber or distributor required by the laws of the State of Kentucky, may be granted a license by the Clerk of the City of Hazard upon paying into the Treasury of said city the sum of $50.00 for each truck so used."'

"The italicized lines embraced the amendment of 1938.

"According to the agreed statement of facts the defendant was arrested on May 24, 1940, charged with a violation of the foregoing ordinance, and was at that time a regularly employed truck driver for Josselson Brothers, Incorporated, of Ashland Kentucky, and was on business for said Josselson Brothers at the time, acting as their duly authorized agent and within the scope of his authority; that Josselson Brothers, Incorporated, at the time mentioned, were wholesale liquor dealers, holding permit No. 33 under section 2554b-114, subsection 4, April 1939 Supplement to Kentucky Statutes; that the truck operated by defendant was owned by Josselson Brothers and was being used in compliance with sections 2554b-118 and 2554b-120 of the Statutes; that the liquor on the truck at the time had been sold by Josselson Brothers on their licensed premises at Ashland to licensed retail liquor dealers in Hazard, and were in process of being delivered by defendant as truck driver and agent of the wholesalers; that Josselson Brothers had not complied with the foregoing ordinance by taking out the license mentioned therein covering the truck being used by the defendant on the occasion in question.

"The question to be determined is whether one who holds a permit under the Alcoholic Beverage Control Law to deal in spirits and wine at wholesale possesses also the incidental right by virtue of said permit to transport such products to licensed retail dealers within the state. While the court has been referred to no case involving this exact question, able counsel in this case have thoroughly argued and briefed the subject of transportation under the Control Law, and the task of the Court, the construction of the Control Law in this respect, has been rendered comparatively easy. Several sections of the law are involved.

"Section 2554b-114, listing the kinds of licenses which may be granted, provides in subsection 4 for wholesale liquor license as follows:

"'License to sell distilled spirits and wine at wholesale, the fee for which shall be $1,000 per annum';

"Section 2554b-120 sets out the business in which a wholesaler may engage and reads in part as follows:

"'A wholesaler's license shall authorize the holder thereof to purchase, receive, store, and possess distilled spirits and wine; to sell same at wholesale, from the licensed premises only; and to transport from his licensed premises for himself only any alcoholic beverage which he is authorized under his license to sell, provided that he so transport such beverages in the manner provided for manufacturers in section 21 of this Act ***.'

"Section 2554b-118 (Section 21 of the original Act), provides just how a manufacturer may transport his products; he is authorized, '*** to transport for himself only any alcoholic beverage which he is authorized under this license to manufacture or sell, provided that he so transports such beverages by a truck, wagon, or other vehicle owned and operated by himself, and which shall have affixed to its sides at all times a sign of such

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