City of Evarts v. Fuller

• Citation: 86 S.W.2d 1058,261 Ky. 47
• Parties: CITY OF EVARTS et al. v. FULLER et al.
• Decision Date: 25 October 1935
• Court: Kentucky Court of Appeals

86 S.W.2d 1058

261 Ky. 47

CITY OF EVARTS et al. v. FULLER et al.

Court of Appeals of Kentucky

October 25, 1935

Appeal from Circuit Court, Harlan County.

Suit for an injunction by W. D. Fuller and others against City of Evarts and others. From a judgment awarding an injunction defendants appeal.

Reversed.

B. M Lee, of Harlan, for appellants.

A. J Asher, of Harlan, for appellees.

PERRY Justice.

This is an appeal from a judgment of the Harlan circuit court decreeing a perpetual injunction against the city of Evarts et al. from prosecuting the warrants issued from its police court, charging plaintiffs with operating their respective businesses in the city without license or without paying a "privilege tax" therefor.

In April, 1934, the appellees (plaintiffs below), who were all citizens of Evarts, and then engaged in different kinds of business in the city, brought this suit against the city of Evarts, its police judge, city policeman, and councilmen, seeking an injunction against them from disturbing them in the continued operation of their respective businesses, upon the alleged ground that they were operating same without license therefor and in violation of the city's ordinance requiring all persons so engaged to annually pay a town or privilege license tax for conducting business within the city, and further providing that such tax became annually due on or before January 1st following, and for failure to so procure same, providing a penalty of from $5 to $50.

Further plaintiffs alleged that warrants had been issued against them by the defendant police judge, charging them with violation of the ordinance by engaging in business without license and that they were, upon hearing in the police court, found guilty and fined and held to pay the license tax, without opportunity given them for a fair trial by jury, and that they were further threatening to close their places of business unless the license tax was paid by plaintiffs. Further, plaintiffs alleged that they had paid their license fees for the year 1934, and had receipts showing payment of the tax to the city, but that defendants had refused to recognize their receipts as valid.

Asserting the validity of the licenses held by them and complaining of the police court's adverse ruling against them, plaintiffs sought an injunction against the city's further prosecuting or molesting them upon such grounds.

The fact is uncontradicted that plaintiffs procured their business licenses for the year 1934 required by the ordinance from one Asa Cusick, the city's chief of police, in December, 1933, who, it is contended, was authorized by order of the...