Fecheimer v. City of Louisville

• Decision Date: 02 October 1886
• Citation: 2 S.W. 65,84 Ky. 306
• Parties: FECHEIMER and others v. CITY OF LOUISVILLE.
• Court: Kentucky Court of Appeals

2 S.W. 65

84 Ky. 306

FECHEIMER and others v. CITY OF LOUISVILLE.

Court of Appeals of Kentucky.

October 2, 1886

Appeal from Louisville chancery court.

Chas H. Gibson and Brown & Davie, for appellants, Fecheimer Bros & Co. T. L. Burnett, for appellee, City of Louisville.

PRYOR C.J.

The general council of the city of Louisville passed an ordinance, approved February 8, 1879, entitled "An ordinance to license sample dealers."

Section 1 is as follows: "That any person whose principal place of business is not in this city, or who conducts his principal place of business without this city, and shall sell or offer to sell any goods, wares, or merchandise, by sample or representation, in this city, to any person other than persons living in or doing a license business in this city must first obtain an annual license therefor, and shall pay for such license $200.

Section 2: "Every person violating this ordinance shall be fined not less than twenty, nor more than fifty, dollars for each offense."

The appellants, who are wholesale merchants having their principal place of business in the state of Ohio, (city of Cincinnati,) were selling goods by sample, through their commercial agent, in the city of Louisville; and, being threatened with the penalties for violating the city ordinance with reference to such sales, paid to the city the license imposed by the ordinance, and are now seeking to recover back the money from the city, on the ground that the ordinance is invalid, because it discriminates against the non-residents of the state, as well as those residing within the state, engaged in the sale of merchandise, in favor of merchants residing within the city of Louisville. It is alleged that the money was paid under a mistaken belief as to the validity of the ordinance, and because they had no practicable mode, at the time of the demand, for resisting the payment.

The city charter of Louisville requires that every merchant doing business within the city shall first obtain a license, and the sum to be paid in the way of license is regulated by the amount of business done; the lowest class being fixed at $5, and the highest at $400. The plaintiffs (appellants) allege that their annual sales amount to not exceeding $20,000 within the city, and that their license, regulated by the ordinance with reference to merchants, would be only $25, whereas they are required to pay $200.

Section 2 of article 4 of the federal constitution provides that "the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states;" and if, as contended by appellants, the ordinance in question is in violation of the provisions of the constitution, it results that the city has obtained from the appellants a sum of money to which it was not entitled, under a mistaken view as to the validity of the ordinance, and they are entitled to recover. While the doctrine laid down by Mr. Cooley, that "the methods in which business shall be taxed are within legislative discretion," it must also be understood that when such legislation is forbidden by the state or federal constitution it is invalid, and will not be enforced. The ordinance under which this payment was exacted applies to the resident of the state as well as the non-resident, and no one having his place of business outside of the city limits is allowed to sell by sample unless he pays the license imposed; and the fact that its provisions apply to the resident of the state as well as the non-resident does not add to the validity of the act, or give strength to the argument in support of it.

The merchant residing in the city of Louisville, it being his principal place of business, can sell $20,000 worth of goods...