City of Lebanon v. Humkey

• Citation: 170 S.W. 1172,161 Ky. 454
• Parties: CITY OF LEBANON v. HUMKEY ET AL.
• Decision Date: 08 December 1914
• Court: Court of Appeals of Kentucky

170 S.W. 1172

161 Ky. 454

CITY OF LEBANON v. HUMKEY ET AL.

Court of Appeals of Kentucky.

December 8, 1914

Appeal from Circuit Court, Marion County.

Action by W. A. Humkey and others against the City of Lebanon. From a judgment for plaintiffs, defendant appeals. Affirmed.

Hannah and Nunn, JJ., dissenting.

H. W Rives and C. C. Boldrick, both of Lebanon, for appellant.

W. W Spalding and P. K. McElroy, both of Lebanon, for appellees.

CARROLL J.

The identical question presented by this record was before us in the case of Spalding v. City of Lebanon, 156 Ky. 37 160 S.W. 751, 49 L. R. A. (N. S.) 387. In that case, as appears from the opinion, on April 5, 1910, the board of council of the city of Lebanon attempted to enact an ordinance imposing a license tax of $200 per annum on dealers in soft drinks. Under this ordinance, Spalding paid to the city the license tax enacted by the ordinance for the time he remained in business. After this he discovered that the ordinance was void, and thereupon brought suit to recover the license tax he had paid, and it was held that he was entitled to a judgment for the amount claimed. In the case we have the appellee, also a dealer in soft drinks, paid to the city under the same ordinance, $400, and, upon discovering that the ordinance was void, brought this suit to recover what he had paid, and from a judgment in his behalf the city appeals.

Under the authority of the Spalding Case, and adopting the views therein expressed as conclusive of the question arising on this record, we might well close the opinion by affirming the judgment. In deference, however, to the urgent insistence of counsel for the city that this record presents a question not involved in the Spalding Case sufficient to defeat the action brought by the appellees, we will briefly respond to the argument of counsel, which is based on the ground that the appellees are estopped to maintain the action.

It was averred in the answer of the city, to which a demurrer was sustained, that the ordinance in question was enacted at the request of appellees, who were present when it was adopted by the council, and, this being so, they are estopped to attack its validity, especially in view of the fact that they have enjoyed the benefits conferred by the ordinance and received the protection it afforded during the time they paid the license tax sought to be recovered.

The fundamental error in this argument is that the ordinance did not confer any benefits or privileges on the appellees, nor did it afford them any protection. At the time of the attempted enactment of the ordinance, the appellees were engaged in the sale of soft drinks in the city of Lebanon, and, until this ordinance, were not required to pay the city any license tax for conducting their business, so that, except for this ordinance, they could have continued to sell soft drinks without being subjected to any license tax during the time they paid the license tax under the ordinance. The city had no authority, except by virtue of a valid ordinance, to collect the tax appellees paid; but, notwithstanding this, it exacted and appellees paid, under a void ordinance, the tax. The ordinance, being void, did not confer upon them any benefit or privilege or afford them any protection. The fact that they requested the passage of the ordinance and were present when this ordinance was attempted to be adopted by the council does not amount to an estoppel, because they requested the adoption of a valid ordinance--an ordinance that would confer some benefit or privilege that could not be enjoyed in its absence, and that would afford protection to persons availing themselves of its advantages by paying the license tax imposed.

The enactment of the ordinance was wholly within the control and power of the city council, and, although it attempted to and doubtless believed that it had enacted a valid ordinance, it develops that they did nothing of the kind and in fact did not enact any ordinance. This being so, the situation is precisely the same as if the city authorities, without having attempted to enact an ordinance, had demanded and collected from appellees, without any authority, the license tax paid under this void ordinance.

In City of Covington v. Schlosser, 141 Ky. 838, 133 S.W. 987, the question arose as to whether property owners were estopped to question the validity of assessments. In answering this defense we said:

"The power to make these assessments is granted alone by the statute, and by its terms alone the validity of the amount that may be charged against the property is to be determined. No question of estoppel can be brought into a case like this. A property owner cannot be estopped by his acts or conduct from objecting to the collection of assessments that are made in excess of the authority to make them. The excess assessment is void from the beginning. Or, to put it in a better way, there could be no assessment for the excess, and so the property owner could not be estopped from contesting the validity of a void act. Thomas v. Woods, 128 Ky. 555 [108 S.W. 878, 32 Ky. Law Rep. 1405]; City of Lexington v. Walby, 109 S.W. 299 ."

In Elliott v. Burke, 113 Ky. 479, 68 S.W. 445, it was insisted that persons contesting an election were estopped by their participation from contesting it, but we said:

"Nor do we think that a party, by consenting or participating in a void election, deprives himself of his right to dispute the validity. A few men, or even the entire public, cannot make valid an election held in direct violation of a mandatory statute."

To the same effect is Doody v. Bowman, 142 Ky. 153, 134 S.W. 148.

We are referred by counsel for the city to the case of Town of Providence v. Shackelford, 106 Ky. 378, 50 S.W. 542, 20 Ky. Law Rep. 1921, as announcing a view of the doctrine of estoppel that would defeat the recovery of the license tax in this case. But in that case it was expressly held that by virtue of the act assailed, which was valid, the parties attacking it were protected in the conduct of their business. We are also referred to City of Lebanon v. Edmonds, 101 Ky. 216, 40 S.W. 573, 19 Ky. Law Rep. 297. In that case Edmonds brought suit to enjoin the collection of taxes levied upon land that previous to the passage of the act, extending the city boundaries so as to embrace this land, had not been subject to taxation. In holding that Edmonds was estopped to attack the validity of the act on the ground that he received no benefits or protection from the city government, the court said:

"By uniting, as he did, with others in petitioning the General Assembly to pass the act of 1890 extending the city boundary so as to include the lot in question, he is estopped to now allege that the proposed taxation is taking his property for public use without compensation."

It will thus be seen that in that case Edmonds was only held to be estopped from challenging a valid act, the passage of which he had aided in securing. A similar question was presented in Ferguson v. Landram, 5 Bush. 230, 96 Am. Dec. 350 in which the doctrine of estoppel was...