City of Covington v. Dalheim

• Decision Date: 04 June 1907
• Citation: 126 Ky. 26,102 S.W. 829
• Parties: CITY OF COVINGTON v. DALHEIM ET AL.
• Court: Kentucky Court of Appeals

102 S.W. 829

126 Ky. 26

CITY OF COVINGTON v. DALHEIM ET AL.

Court of Appeals of Kentucky.

June 4, 1907

Appeal from Circuit Court, Kenton County, Criminal Law and Equity Division.

"To be officially reported."

Action between the city of Covington and John Dalheim and others. From the judgment, the city appeals. Affirmed.

F. J Hanlon, for appellant.

H. D Gregory and Greene & Van Winkle, for appellees.

O'REAR C.J.

This action tests the validity of the following ordinance enacted by the common council of the city of Covington:

"An ordinance to license and regulate the grocery business within the city of Covington, Kentucky.

Grocer Wagon License.

Sec 409. (1) Be it ordained by the general council of the city of Covington, Kentucky, that it shall be unlawful for any person, firm or corporation to engage in or transact any business as a grocer within the city of Covington, Kentucky, without obtaining a license so to do.

License Fees.

Sec. 410. (2) Be it further ordained, that the amount to be paid for said license per annum is five dollars ($5.00) for each one-horse wagon, seven and fifty one-hundredths ($7.50) dollars for each two-horse wagon, and ten ($10.00) for each three-horse wagon used in said business.

Fire Fund.

Sec. 411. (3) Be it further ordained, that all money collected under this ordinance shall be for the benefit of the fire fund.

Penalty.

Sec. 412. (4) Be it further ordained, that any person, firm or corporation violating any of the provisions of this ordinance shall be deemed guilty of a misdemeanor, and upon conviction in the police court be fined not less than five dollars ($5.00) nor more than twenty-five ($25.00) dollars and costs of prosecution for each offense."

The Constitution allows a license tax to be imposed on stock used for breeding purposes, on franchises, trades, occupations, and professions. Section 181, Const. In pursuance of that power, the Legislature has authorized second-class cities (to which Covington belongs) to impose license taxes as follows: Subsection 2, § 3058, Ky. St. 1903: "To license, tax and regulate undertakers, auctioneers, grocers, merchants, bakers, * * * livery, board, feed and sale stables, hansoms, cabs, hackney coaches, carriages, barouches, buggies, wagons, omnibuses, carts, drays, job-wagons, and all other vehicles used or let for hire. * * *" The ordinance set forth above was enacted in virtue of the power delegated by section 3058 of the Kentucky Statutes of 1903. Appellants are grocers, who use delivery wagons in their business to deliver goods free of charge for the service to their customers. They are not let for hire. Nor are grocers who do not use delivery wagons taxed at all on their occupations.

It is competent for the city to select any...