Bowser & Co. v. Thompson, Judge

• Decision Date: 16 March 1898
• Citation: 103 Ky. 331
• Parties: Bowser & Co. v. Thompson, Judge.
• Court: Kentucky Court of Appeals

103 Ky. 331

Bowser & Co. v. Thompson, Judge.

Court of Appeals of Kentucky.

March 16, 1898.

APPEAL FROM JEFFERSON CIRCUIT COURT, COMMON PLEAS DIVISION.

M. S. BARKER FOR APPELLANTS.

LAF. JOSEPH FOR APPELLEE.

JUDGE HAZELRIGG DELIVERED THE OPINION OF THE COURT.

The appellants are coal dealers in the city of Louisville and use a number drays for delivery of coal to their customers. An ordinance passed in pursuance of authority conferred by the organic law of the city, prescribes, among other regulations as to vehicles, not necessary to set out here, a license fee of five (5) dollars for each dray drawn by two animals. To test the constitutionality of the section of the section of the statutes conferring the power to thus tax or license vehicles the appellants have brought this action.

The statute, section 3011, Kentucky Statutes, provides that "The general council may by ordinance, provide for the following licenses, to be paid into the sinking fund, with adequate penalties for doing business for following the calling, occupation, profession or using or holding or exhibiting the article herein named without the required license:

"Vehicles run in the City: — For each vehicle running in said city, not less than two dollars, nor more than fifty dollars per annum."

Other clauses of this section impose license fees on hawkers, hucksters, peddlers, shows, dance houses, billiard and pool tables, brokers, etc., while others attempt to substitute a license tax system instead of the ad valorem system required by the Constitution. (Levi v. City of Louisville, 97 Ky., 400.)

This attempt was held futile in the case cited, but after a careful consideration of the argument of learned counsel, we are unable to find in what respect the clause as to license fees on vehicles is in conflict with the Constitution. There may be some difficulty in saying that the tax or fee is one levied upon the occupation of the dealer as is said when vehicles are let by him as a business. (City of Covington v. Woods, 17 R., 927.)

But that the license fee may be imposed under the police power of the State seems quite clear. The use of the streets and public ways of the city is a use common to all, but this use must not be exercised by any to the injury of others; and when in the nature of things, it will likely be so exercised, regulations may be imposed under the police power. As said by counsel for the appellees: "There is, perhaps, in the catalogue of things requiring police...