City of Irvine v. Bergman

• Decision Date: 24 June 1927
• Citation: 220 Ky. 804,295 S.W. 1041
• Parties: CITY OF IRVINE v. BERGMAN.
• Court: Kentucky Court of Appeals

295 S.W. 1041

220 Ky. 804

CITY OF IRVINE v. BERGMAN.

Court of Appeals of Kentucky.

June 24, 1927

Appeal from Circuit Court, Estill County.

Action by R. M. Bergman against the City of Irvine. Judgment for plaintiff, and defendant appeals. Reversed.

H. M Shumate and Riddell & Shumate, all of Irvine, for appellant.

Ben. H Scott, of Irvine, for appellee.

DRURY C.

The city of Irvine by ordinance imposed a tax or license charge of $20 per annum on laundries and laundry agencies. Bergman conducts a hardware business in that city, and, in connection with that business, has for more than a quarter of a century conducted a laundry agency. He began this action by filing a petition against the city, its board of council, and its police judge, to enjoin them from enforcing this ordinance against him. He was successful, and the city has appealed.

Irvine is a city of the fourth class, and is authorized by section 3490, Kentucky Statutes, to license, tax, and regulate any trade, occupation, or profession. This ordinance has been attacked as unreasonable, excessive, oppressive confiscatory, and discriminative. We do not so regard it. We have never hesitated to declare a license fee or tax unlawful where the governing authorities abused their discretion and imposed a license tax that was prohibitive, unreasonable oppressive, or discriminatory, nor have we hesitated to uphold a tax that was not so. Our position has often been stated, and is fully set out in these cases: Sallsbury v. Equitable Purchasing Co., 177 Ky. 348, 197 S.W. 813, L. R. A. 1918A, 1114; Tandy & Farleigh Tobacco Co. v. Hopkinsville, 174 Ky. 189, 192 S.W. 46; Sperry et al. v. Owensboro, 151 Ky. 389, 151 S.W. 932, Ann. Cas. 1915A, 373; Louisville v. Pooley, 136 Ky. 286, 124 S.W. 315, 25 L. R. A. (N. S.) 582; Fiscal Court of Owen County v. F. & A. Cox Co., 132 Ky. 738, 117 S.W. 296, 21 L. R. A. (N. S.) 83; Hager v. Walker, 128 Ky. 1, 107 S.W. 254, 32 Ky. Law Rep. 748, 15 L. R. A. (N. S.) 195, 129 Am. St. Rep. 238; Henderson v. Lockett, 157 Ky. 366, 163 S.W. 199; Bradford v. Jones, 142 Ky. 820, 135 S.W. 290; Standard Oil Co. v. Commonwealth, 119 Ky. 75, 82 S.W. 1020, 26 Ky. Law Rep. 985; Commonwealth v. Fowler, 98 Ky. 648, 34 S.W. 21, 17 Ky. Law Rep. 1209; Kniper v. Louisville, 7 Bush, 599; Newport v. So. Covington, etc., St. R. Co., 89 Ky. 29, 11 S.W. 954, 11 Ky. Law Rep. 319; Cumberland T. & T. Co. v. Calhoun, 151 Ky. 241, 151 S.W. 659; Mt. Sterling v. King, 126 Ky. 526, 104 S.W. 322, 31 Ky. Law Rep. 919; Brown-Foreman Co. v. Commonwealth, 125 Ky. 402, 101 S.W. 321, 30 Ky. Law Rep. 793; Shugars v. Hamilton, 122 Ky. 606, 92 S.W. 564, 29 Ky. Law Rep. 127; Bitzer v. Thompson, 105 Ky. 514, 49 S.W. 199, 20 Ky. Law Rep. 1318, 44 L. R. A. 141; Simrall v. Covington, 90 Ky. 444, 14 S.W. 369, 12 Ky. Law Rep. 404, 9 L. R. A. 556, 29 Am. St. Rep. 398; Evers v. Mayfield, 120 Ky. 73, 85 S.W. 697, 27 Ky. Law Rep. 481; Mayfield v. Carter Hdw. Co., 192 Ky. 381, 233 S.W. 789; Craig v. Taylor, 192 Ky. 36, 232 S.W. 395; Hall v. Com., 101 Ky. 382, 41 S.W. 2, 19 Ky. Law Rep. 578; Adams Express Co. v. Owensboro, 85 Ky. 265, 3 S.W. 370, 8 Ky. Law Rep. 908; Otting v. Bellevue, 105 S.W. 375, 32 Ky. Law Rep. 186; Green v. Nat. Surety Co., 186 Ky. 353, 217 S.W. 117; Greene v. Kentenia Corp., 175 Ky. 661, 194 S.W. 820; Louisville v. Sagalowski, 136 Ky. 324, 124 S.W. 339, 136 Am. St. Rep. 258.

Bergman established by evidence that his net profits from the conduct of this business for one year was $32.18, and insists that to impose on that small return a license tax of $20 would be oppressive, and in support of his position he cites the case of Louisville v. Pooley, supra. In that case the license tax was $1,000 for loaning money on chattels, and a similar sum for loaning money on salaries. The average net earnings of Pooley from both these sources was $2,200, and to deduct from this $1,000 for each occupation, or $2,000 for the two, we held would be prohibitive, but there is a great difference between the imposition of a $1,000 license and one of $20. Great enough, in fact, to make this license tax valid whereas the other was invalid. The reasonableness and validity of this ordinance is measured, not by its effect upon Bergman, but by what would be its effect on others...