Adams Exp. Co. v. City of Owensborough

• Decision Date: 24 February 1887
• Citation: 3 S.W. 370,85 Ky. 265
• Parties: ADAMS EXP. CO. v. CITY OF OWENSBOROUGH.
• Court: Kentucky Court of Appeals

3 S.W. 370

85 Ky. 265

ADAMS EXP. CO. v. CITY OF OWENSBOROUGH.

Court of Appeals of Kentucky.

February 24, 1887

Appeal from circuit court, Daviess county.

Hallam & Myers, for appellant.

HOLT J.

The charter of the city of Owensborough, approved March 18, 1882 by subsection 36 of section 10, provides: "The common council shall have power to grant licenses to the following persons and business, and provide by ordinance adequate penalties for doing business without license, viz., tavern keepers, innkeepers, retailers of spirituous liquors, * * * concerts, menageries, circuses, astrologers, * * * express companies, telephone companies," etc Acts 1881, p. 817.

It is urged that the power to license does not include the power to tax; and that the distinction between the power to license as a police regulation, and for the purpose of taxation, must be kept in view In the one a reasonable fee for the labor and expense of issuing the license can only be charged, while in the other it becomes a source of revenue. It is not usual to resort to a tax upon useful occupations for revenue. The law draws a distinction between them and those which are harmful, or serve merely for amusement. Judge Dillon says: "Concerning useful trades and employments, a distinction is to be observed between the power to 'license' and the power to 'tax.' In such cases the former right, unless such appear to have been the legislative intent, does not give the authority to prohibit, or to use the license as a mode of taxation with a view to revenue; but a reasonable fee for the license, and the labor attending its issue, may be charged. Respecting amusements, exhibitions, etc., the authority of the corporation, under the power to license, has been regarded as greater than when the same word is employed as to trades and occupations." 1 Dill. Mun. Corp. § 357. This rule is supported by the cases of St. Louis v. Boatmen's Ins. Co., 47 Mo. 152; Freeholders of Essex v. Barber, 7 N. J. Law, 67; and Mays v. Cincinnati, 1 Ohio St 272.

A license may or may not include a tax. It is noticeable, however, that the charter provision supra includes both useful occupations and those which serve for amusement only. They are all put upon the same footing. And subsection 37 provides, as to all of them: "And, in granting such licenses as by this act the common council is authorized to grant, they shall charge such sum or sums of money as they shall deem fit and reasonable, and annex to such licenses such terms and conditions as in their opinion the peace, good order, and general interest of the city may require." This last provision enlarges the scope of the preceding one, or at least shows that it was "the legislative intent" to confer upon the city council full power over the subject, and to authorize them to use the power to license as a means of taxation if they saw proper to do so.

It is urged that the words, "as they shall deem fit and reasonable," must be construed to mean "as are fit and reasonable," and authorize the imposition of a fee only for the issuance of the license. There might be some ground for such a construction if they related to useful occupations only. The words "sum or sums," as used in the act, do not mean merely "fee or...