City of Mayfield v. Reed

• Decision Date: 18 April 1939
• Citation: 127 S.W.2d 847,278 Ky. 5
• Parties: CITY OF MAYFIELD et al. v. REED.
• Court: Kentucky Court of Appeals

127 S.W.2d 847

278 Ky. 5

CITY OF MAYFIELD et al. v. REED.

Court of Appeals of Kentucky

April 18, 1939

Appeal from Circuit Court, Graves County; L. L. Hindman, Judge.

Action by H. H. Reed against the City of Mayfield and others for a declaration of rights and an injunction against enforcement of a license tax ordinance as against plaintiff. From a judgment enjoining enforcement of the ordinance, defendants appeal.

Affirmed.

R. E Johnston, L. O. Fulcher, and Aubrey Hester, all of Mayfield for appellant.

McDonald & Boaz, of Mayfield, for appellee.

CREAL Commissioner.

This is an appeal from a judgment enjoining and restraining the police judge and other officials of the City of Mayfield from enforcing a license tax ordinance adopted by the city as against H. H. Reed and from trying and fining him on a warrant charging violation of such ordinance and from issuing other warrants or arresting and trying him thereunder for alleged violation of the ordinance.

There is no question made concerning the constitutionality or validity of the ordinance except as to its application to appellee in the particular circumstances shown by the record. Section 10 of the ordinance provides in part: "Each person, firm, company, or corporation carrying on, conducting or managing any business, calling, occupation or profession *** hereunder named shall pay the license fee hereinafter stated or set opposite the business, occupation, calling, or profession named hereinafter." The pertinent portion of section 12 of the ordinance reads: "Accountants certified, public, not pro rata, each $50.00."

The facts are: The Merit Clothing Company engaged in the manufacture of clothing in the City of Mayfield for some years had its books audited semi-annually. No particular firm has been regularly engaged to do the auditing but its board of directors by resolution provides for the employment of some accountant or firm of accountants to make each audit. By resolution of the board of directors and through correspondence it employed Peat, Marwick, Mitchell & Company, a firm of auditors whose office and place of business is in St. Louis, Missouri, to make an audit for the six months period ending April 30, 1938. Appellee and another employee of the auditing company were sent to Mayfield where they engaged for a number of days in going over the books and accounts of the clothing company, securing and preparing data and making up the audit. There is a long stipulation in the record in which it is agreed that appellee and his helper engaged in auditing the books and accounts of the clothing company at its place of business in Mayfield, otherwise, the foregoing statement of facts is sufficient for the purpose of this appeal without going into further detail concerning the stipulation. A warrant was issued against appellee charging violation of the ordinance by making an audit without first procuring a license so to do as therein provided. He brought this action for a declaration of rights and to enjoin the police judge and other officials from trying him under that warrant or from issuing and prosecuting him under other warrants.

Some question is made concerning the jurisdiction of the circuit court to hear and determine the injunction suit but like procedure had been followed in former cases of this character. City of Danville v. Quaker Maid Stores, Inc., 211 Ky. 677, 278 S.W. 98, 43 A. L. R. 590; Karnes v. City of Benton, 258 Ky. 425, 80 S.W.2d 558. See also Dowdy v. City of Covington, 237 Ky. 274, 35 S.W.2d 304; Civil Code of Practice, Section 639a--2.

It is conceded that the principal question for determination on this appeal is whether appellee was carrying on or engaged in his calling or profession in the City of Mayfield within the meaning of the ordinance. Appellee's employers did not maintain an office or place of business in Mayfield, and while they held themselves out as auditors they did not solicit business there and appellee was not a resident of nor did he maintain an office or place of business in Mayfield but went wheresoever he was sent by his employers to make audits, and, this particular audit was being made under a specific employment. The same auditing company had made one or two previous audits for the company under specific employment.

In Karnas v. City of Benton, supra, Karnes, a farmer who resided outside the corporate limits of the city was charged with selling meat within the city in quantities less than one quarter of a carcass without license so to do as provided by ordinance of the city. In a suit to enjoin the enforcement of the ordinance against him the lower court sustained a demurrer to and dismissed his petition....