City of Louisville v. Weikel

• Decision Date: 22 April 1910
• Citation: 127 S.W. 147,137 Ky. 784
• Parties: CITY OF LOUISVILLE v. WEIKEL et al.
• Court: Kentucky Court of Appeals

127 S.W. 147

137 Ky. 784

CITY OF LOUISVILLE v. WEIKEL et al.

Court of Appeals of Kentucky.

April 22, 1910

Appeal from Circuit Court, Jefferson County, Chancery Branch, Second Division.

"To be officially reported."

Action by A. J. Weikel and others, against the City of Louisville. Decree for complainants, and defendant appeals. Reversed and remanded, with instructions.

Clayton Blakey and Elmer C. Underwood, for appellant.

Arthur B. Bensinger and J. B. Weaver, for appellees.

LASSING J.

This litigation grows out of an error on the part of certain members of the Dairymen's Protective Association, suing for themselves and all others similarly situated, to recover of the city of Louisville certain license fees, paid to the city under an ordinance approved April 23, 1898, and entitled "An ordinance licensing milk venders." Said ordinance is as follows:

"Be it ordained by the general council of the city of Louisville: That every person, firm or corporation selling or vending milk from house to house by wagon, cart or in any other vehicle in the city of Louisville shall pay a license in the sum of five dollars per annum, in advance, for each wagon, cart or other vehicle used in carrying on said business, to be paid into the sinking fund of the city of Louisville for the purposes of the sinking fund. ***

"Sec 2. Any person, firm or corporation violating the provisions of this ordinance shall be fined not less than five nor more than twenty-five dollars for each offense; each day said business is carried on without the license having been paid shall constitute a separate offense.

"Sec. 3. This ordinance shall take effect from and after its publication."

It was charged by the plaintiffs in their suit, that this ordinance was invalid and in violation of section 181 of the Constitution, and they sought to recover of the city the fees paid thereunder, and in addition thereto the further sum of $3 per annum on each wagon, which they alleged they had been required to pay as a license on their wagons used for the same purpose. It is agreed that plaintiffs and all others for whom they sued paid the $5 on each vehicle used in the business of vending milk annually, as provided for by the ordinance in question, and also the further sum of $3 as a license on each wagon so used, from the passage of the ordinance in 1898 up to and including January 1, 1909, about which time they first learned of the invalidity of the ordinance. Issue was joined upon the validity of the ordinance, and the city pleaded the five-year statute of limitation also. Plaintiffs sought to avoid the effect of this plea of limitation by setting up in their reply that they did not discover the invalidity of the ordinance until within five years next before the institution of their suit, and could not by the exercise of reasonable diligence have sooner discovered that the ordinance was invalid. Issue was joined upon the affirmative matter set out in the reply, and the case submitted for judgment on the pleadings, evidence, and agreed statement of facts. The chancellor found in favor of plaintiffs' contention, and allowed a recovery for all license fees so paid by plaintiffs during the 10 years next before the institution of the suit. The city appeals, and rests its right to reversal upon two grounds: First, that the ordinance is valid, and no recovery should have been allowed; and, second, if invalid, the plea of the five-year statute of limitation should have been upheld.

This is a revenue measure, pure and simple. All of the elements which would enter into its composition as a police regulation are lacking, and the passage by the city, shortly thereafter, of another ordinance, throwing certain restrictions and regulations around the sale of milk in Louisville, is the best evidence that the council considered it a revenue measure, and not a police regulation. This court has recently had occasion to consider two ordinances very similar to the one under consideration, passed by the board of council in cities of the second class, the first of which was an ordinance passed by the city of Covington, imposing a graded license fee upon vehicles used by grocers in their business the fees being $5 for a onehorse wagon, $7.50 for a two-horse wagon, and $10 for a three-horse wagon. No license fee was fixed for those grocers who used no wagon in connection with their business. The enforcement of the ordinance was resisted on the ground that it was void because it discriminated against those grocers using wagons in connection with their business in favor of such as used no wagon. The lower court held it to be inoperative and void because of this discrimination; and, in reviewing the case of City of Covington v. Dalheim, 126 Ky. 26, 102 S.W. 829, here, this court said: "It is competent for the city to select any of the enumerated classes as subjects for license taxes. But it is not competent for it to tax some members of a class set apart by the Legislature and not tax others of the same class. That would not be uniform taxation, and would be repugnant to the Constitution. The grant of power to the city is to tax by license certain specific trades or callings, which the Legislature has itself classified. If grocers are to be taxed, all grocers must be taxed. To be sure, the tax may be graded upon any natural and reasonable basis, as, for example, upon the amount of sales or character of stock of merchandise kept, or, for that matter, by the number of delivery wagons employed, so long as all are taxed upon the occupation of grocers. But this ordinance does not impose a license on all grocers. True, it says that it does; but, as no provision is made for collecting licenses from any grocers except those who employ delivery wagons, it follows that all who did not employ delivery wagons are not required to pay any license tax. This of itself is not uniform taxation. *** We agree, also, with the circuit court that the manifest purpose of the ordinance was not to tax grocers, but to tax delivery wagons used by grocers. In this the council was without power. The statute designates plainly what vehicles might be the subject of such tax; that is, such only as were used for hire. *** It being conceded that the grocery delivery wagons were not used for hire, the city would not impose a license tax upon them, either directly or indirectly. From a careful reading of the whole ordinance it is clear that its purpose was to tax vehicles used by grocers as delivery...