City of Mayfield v. Carter Hardware Co.

• Citation: 192 Ky. 381,233 S.W. 789
• Parties: CITY OF MAYFIELD v. CARTER HARDWARE CO.
• Decision Date: 27 September 1921
• Court: Court of Appeals of Kentucky

233 S.W. 789

192 Ky. 381

CITY OF MAYFIELD v. CARTER HARDWARE CO.

Court of Appeals of Kentucky.

September 27, 1921

Appeal from Circuit Court, Graves County.

Proceeding by the City of Mayfield against the Carter Hardware Company for violation of an ordinance. Judgment for defendant, and the City appeals. Reversed, with directions.

See also, 191 Ky. 364, 230 S.W. 298.

W. J Webb, of Mayfield, for appellant.

Robbins & Robbins, of Mayfield, for appellee.

SAMPSON J.

This is the second appeal of this case. It is a prosecution in the name of the city of Mayfield against the Carter Hardware Company, under a city ordinance, for failure to take out and pay for a license, as required by the ordinance, to operate its motor truck on the streets of said city. The questioned license ordinance reads in part as follows:

"For each automobile, owned and operated by any person, firm or corporation, residing in the city of Mayfield, Kentucky: For each machine of 25 horse power or under, $6.00; for each machine of more than 25 horse power, $7.00; for each motorcycle, $6.00."

It was the contention of appellee upon the former appeal, as well as on this appeal, that the ordinance is invalid because unreasonable in the amount of the license fee. In the former opinion we held the ordinance valid as a proper exercise of the police power of the city. City of Mayfield v. Carter Hardware Co., 191 Ky. 364, 230 S.W. 298. As the defendant, Carter Hardware Company, had been judged not guilty of a violation of the license ordinance, on the theory that the ordinance was invalid, the judgment was reversed for a new trial.

The ordinance having been held valid, there was but one thing to be done on the return of the case to the lower court--fix the amount of the fine to be imposed for its violation, for it was conceded that the Carter Hardware Company owned and operated a motor vehicle on the streets of Mayfield at the time charged, without first having applied for and obtained a license so to do as required by the ordinance. That the opinion on the first appeal is the law of the case has been too often written to require repetition. The last trial in the circuit court proceeded de novo, and evidence as to the reasonableness of the license fee charged was heard and submitted to a jury. This was error, for the validity of the ordinance was fixed by the former opinion of this court.

The whole defense to the prosecution under the ordinance was based upon the unreasonableness of the fee charged for the license; it being argued that the cost of issuing the license and administering the act, as well as the ordinance regulating the parking of automobiles and the speed at which they may run in the different sections of the city, based upon the density of the population, would not approach the total sum derived from a tax of $6 and $7 for such machines in that city, where the evidence shows there are about 500 such cars.

This tax was levied under the police power of the municipality for the purpose of regulating motor vehicle traffic upon the streets. It is general information that cities have more...