Adams Express Co. v. Lexington

• Citation: 7 Ky.L.Rptr. 716,83 Ky. 657
• Parties: Adams Express Co. v. City of Lexington.
• Decision Date: 27 February 1886
• Court: Court of Appeals of Kentucky

83 Ky. 657

7 Ky.L.Rptr. 716

Adams Express Co. v. City of Lexington.

Court of Appeals of Kentucky.

February 27, 1886

BRECKINRIDGE AND SHELBY FOR APPELLANT.

A statute is not repealed by implication, unless there is such a positive repugnancy between its provisions and the provisions of a subsequent statute that the two can not stand together or can not consistently be reconciled.

The charter of appellee must be construed as authorizing the imposition of a license fee on express companies other than foreign express companies, which are alone exempted by the general law. (Broom's Legal Maxims, pages 28-9; E. & P. R. R. Co. v. Trustees of Elizabethtown, 12 Bush, 237; Loran v. City of Louisville, 4 Ky. Law Rep., 257; Seifred v. Commonwealth, 15 Cent. Law Journal, 419; Acts 1869-70, volume 1, page 33.)

JOHN R ALLEN FOR APPELLEE.

The charter of appellee authorizes the imposition of a license fee on " each express company." This language applies to both foreign and domestic companies, and must be construed as repealing the general law exempting foreign express companies in so far as it applies to the city of Lexington. The conflict can not be reconciled so as to give effect to both statutes.

OPINION

HOLT JUDGE:

The Legislature, by the act of March 2, 1860 (Myers' Sup page 228), required all foreign express companies to obtain annually a license from the State Auditor, as a condition to their right to do business in this State.

By another of February 20, 1864, all express companies doing business in Kentucky were required to annually report to the Auditor a statement of their business, and pay into the treasury a tax of six per cent. upon the net profits arising from it. (Myers' Sup., page 480.)

On March 2, 1870, an act amendatory of the one last named was passed, by which foreign express companies were required to pay for the privilege of doing business in this State a tax of five hundred dollars, if the line was one hundred miles or less in length, and one thousand dollars if over; and it was further provided, that " any such company which has taken or may take out the license provided for in said act of March 2, 1860, and shall pay the annual tax provided for in this act, shall not be required by any county, town, city or other corporation or local jurisdiction in this State to take out or obtain any other or additional license, or to pay any other or additional tax or sum of money for the right or privilege of conducting its business in or through such county, town, city, corporation or other local jurisdiction." (Acts of 1869-70, volume 1, page 33.)

The charter of the city of Lexington, approved April 19, 1882 provides:

" Sec. 16. That the mayor and board of councilmen shall have the right to tax and license, and shall by ordinance provide for the licenses for the following businesses professions and employments, with adequate penalties for doing business without the required license: * * * for each intelligence office, claim agent, commercial agent, street broker, pawnbroker, express company, * * * not less than ten dollars nor more than two hundred and fifty dollars." (Acts of 1881-'2, volume 2, page 617.)

The only question to be considered is, whether the above charter provision, authorizing the city to require " each " express company to obtain a license, repeals the exemption from such taxation given by the act of March 2, 1870, supra, to foreign express companies as to the city of Lexington.

Clearly it does not do so expressly. The one is not an amendment of the other, and can not be held to annul the exemption save by implication. Such repeals are not favored. One statute will not be regarded as...