City of Mayfield v. Carter Hardware Co.

• Decision Date: 03 May 1921
• Citation: 191 Ky. 364,230 S.W. 298
• Parties: CITY OF MAYFIELD v. CARTER HARDWARE CO.
• Court: Kentucky Court of Appeals

230 S.W. 298

191 Ky. 364

CITY OF MAYFIELD v. CARTER HARDWARE CO.

Court of Appeals of Kentucky.

May 3, 1921

Appeal from Circuit Court, Graves County.

J. C Carter and W. J. Webb, both of Mayfield, for appellant.

Robbins & Robbins, of Mayfield, for appellee.

CLAY J.

The Carter Hardware Company, a corporation doing business in the city of Mayfield, and owning and operating an automobile on the streets of the city, was fined in the police court for its failure to procure an automobile license, as required by ordinance. On appeal to the circuit court, the ordinance was held invalid. The city appeals.

The ordinance is as follows:

"An ordinance imposing a license tax upon all persons, firms and corporations owning and operating automobiles and motorcycles in the city of Mayfield, Ky.

Be it ordained by the board of council of the city of Mayfield, Ky.:

Section 1. That the following license tax is hereby fixed, established, levied and imposed upon all persons, firms or corporations, owning and operating automobiles and motorcycles in the city of Mayfield, Ky. that said license fees are hereby fixed, levied and imposed for the purpose of having all automobiles and motorcycles registered each year in said city, and for exercising a supervisory regulation over the subjects thereof, and that any person, firm or corporation owning and operating an automobile or motorcycle in the city of Mayfield, Ky. shall first procure a license so to do, and pay the license fee thereof as follows:

(1) For each automobile, owned and operated by any person, firm or corporation, residing in the city of Mayfield, Ky.; for each machine of 25 horse power or under, $6; for each machine of more than 25 horse power, $7; for each motorcycle, $6.

Sec. 2. The aforesaid license fee shall be paid on or before the 1st day of October, 1920, and each succeeding year thereafter, and all persons, firms or corporations violating section 1 of this ordinance shall, upon conviction in the Mayfield police court, be fined in any sum not less than $5 nor more than $20 for each offense, and each day said violations occur shall be a separate offense.

Sec. 3. All ordinances and parts of ordinances in conflict herewith are hereby repealed, and this ordinance shall be in full force and effect from and after its passage, publication and approval."

There are three other ordinances in force, regulating automobile traffic in the city, and it does not appear that the provisions of these ordinances are in conflict with the state statute on the subject. It also appears that the Carter Hardware Company has paid an ad valorem tax on its property, and also a license tax of $25 for the privilege of conducting a hardware business, in the prosecution of which it makes use of the automobile. It is the contention of the company that the ordinance cannot be sustained under the taxing power, because the Legislature is without authority under section 181 of the Constitution, to grant to a municipal corporation the power to impose license fees, except upon trades, occupations, and professions, and the automobile in question was not used for hire. It is further insisted that the ordinance cannot be sustained under the police power, because the fee imposed is unreasonable and excessive.

In view of the conclusions of the court, we deem it unnecessary to decide whether the ordinance may be sustained as a revenue measure.

In the case of Bowser & Co. v. Thompson, Judge, 103 Ky 331, 45 S.W. 73, 20 Ky. Law Rep. 31, the court had before it the validity of an...