District of Clifton in Campbell County v. Cummins

• Decision Date: 18 June 1915
• Citation: 165 Ky. 526,177 S.W. 432
• Parties: DISTRICT OF CLIFTON IN CAMPBELL COUNTY v. CUMMINS.
• Court: Kentucky Court of Appeals

177 S.W. 432

165 Ky. 526

DISTRICT OF CLIFTON IN CAMPBELL COUNTY v. CUMMINS.

Court of Appeals of Kentucky.

June 18, 1915

Appeal from Circuit Court, Campbell County.

Suit by J. L. Cummins against the District of Clifton in Campbell County to enjoin the district from prosecuting complainant for failing to comply with an ordinance. From a judgment for complainant, defendant appeals. Affirmed.

Howard M. Benton, of Newport, and Elmer C. Schwertman, of Clifton P. O., Newport, for appellant.

Barbour & Bassmann, of Newport, for appellee.

NUNN J.

The district of Clifton in Campbell county is a municipality, but not a city or town as designated by chapter 89 of the Kentucky Statutes. This municipality, by an act approved February 15, 1888, was incorporated and given certain powers of self-government vested in a board of trustees. The autonomy of the district as a municipality was recognized by this court in the case of Gleason v. Weber, 155 Ky 431, 159 S.W. 976.

Section 6 of the act creating the municipality gave to the board of trustees the power to levy and collect an ad valorem tax, a license tax on the gross receipts of any business conducted within the corporation, and the "power to license each tavern, hotel, coffee house, or any other establishment wherein malt, fermented, vinous, or spirituous liquors are retailed." The board of trustees of the district of Clifton by an ordinance approved June 17, 1914, imposed a license tax of from $3 to $5 on the several kinds of vehicles designated therein which were used upon the streets of said district.

The appellee, a painting contractor, resident of the district, is the owner of a horse and wagon which plies the streets of the district, and under the ordinance he is subject to the tax of $3 per annum for the use of said horse and wagon upon the streets of the corporation. In response to appellee's petition the circuit court enjoined the officers of the district from arresting and prosecuting appellee for failing to comply with the ordinance, from which judgment this appeal is prosecuted.

The appellant insists that, under the general welfare clause of its charter, and in the exercise of its police power, it has the right, in the absence of specific authority so to do, to impose a reasonable license tax on vehicles; that a license fee of $3 is too small to be deemed a revenue measure, and that the wisdom of the board of trustees in providing a system of registering vehicles for which a fee is charged should not be questioned by this court.

The measure of power conferred upon municipal corporations is subject to legislative discretion, and it is the settled rule in this jurisdiction that, in the absence of an express delegation, or a necessary inference from some express power, the municipality cannot lawfully act. The district of Clifton was granted the power to impose certain license taxes which are enumerated in the act of the Legislature delegating the power, but the right to levy a tax on vehicles is not included within the delegation to the district. This right cannot be implied from the grant neither is it an incident to the power granted to the municipality. In the case of Bowser & Co. v. Thompson Judge, 103 Ky. 331, 45 S.W. 73, 20 Ky. Law Rep. 31, this court held that an ordinance of the city of Louisville imposing a tax on certain vehicles was valid because the Legislature had, by section 3011 of the Kentucky...