Fiscal Court of Owen County v. F. & A. Cox Co.

• Decision Date: 12 March 1909
• Citation: 117 S.W. 296
• Parties: FISCAL COURT OF OWEN COUNTY et al. v. F. & A. COX CO.
• Court: Kentucky Court of Appeals

117 S.W. 296

FISCAL COURT OF OWEN COUNTY et al. v. F. & A. COX CO.

Court of Appeals of Kentucky.

March 12, 1909

Appeal from Circuit Court, Owen County.

"To be officially reported."

Action by the F. & A. Cox Company against the Fiscal Court of Owen County and others. From the judgment, defendants appeal. Reversed in part, and affirmed in part.

J. G Vallandingham and J. W. Douglas, for appellants.

W. B Moody and H. G. Botts, for appellee.

CLAY C.

The plaintiff, F. & A. Cox Company, a corporation, instituted this action against the members of the fiscal court of Owen county and the county treasurer to enjoin the collection of a license tax of $200 imposed upon four-horse wagons hauling freight for hire, and to recover the sum of $400 claimed to have been paid under protest as license fees on two four-horse wagons. The chancellor granted the injunction and also gave judgment against Owen county, the members of the fiscal court, and the county treasurer for the $400. From that judgment Owen county, the members of the fiscal court and the county treasurer prosecute this appeal.

By section 181 of the Constitution, authority is given to the General Assembly by general laws to delegate the power to counties to impose and collect license fees on stock used for breeding purposes and on franchises, trades, occupations, and professions. Pursuant to the above authority, the General Assembly enacted section 4325a, Ky. St. (Russell's St. § 5471), which is as follows: "That in all counties having free turnpikes the fiscal court of such counties may place license on livery vehicles or any other vehicles that carry passengers or freight for pay." In the year 1906 the fiscal court of Owen county passed an order imposing license fees as follows:

For each one-horse livery rig or buggy .................................... $ 3

For each two-horse livery rig or buggy ...................................... 6

For each one-horse vehicle run or operated to carry passengers or baggage

for pay .................................................................. 10

For each two-horse vehicle run or operated to carry passengers or baggage

for pay .................................................................. 40

For each one-horse huckster wagon operated for pay ......................... 10

For each two-horse huckster wagon operated for pay ......................... 20

For each two-horse huckster wagon operated as a business for hauling

freight for pay .......................................................... 40

For each three-horse wagon operated as a business for hauling freight for

pay ...................................................................... 75

For each four-horse wagon operated as a business for hauling freight for

pay ..................................................................... 200

The order provided that the license fees so collected should go to and become a part of the road and bridge fund.

It appears from the record that plaintiff is engaged in transporting passengers and freight for hire between the city of Owenton and the town of Sparta, in Gallatin county, a station on the Louisville & Nashville Railroad. For this purpose it employs several four-horse wagons besides many other wagons used for the same purpose. The license order is assailed on the ground that it unjustly discriminates between one, two, and three horse wagons and four-horse wagons, and on the further ground that the license fee imposed on the four-horse wagons is oppressive and prohibitive. The law is well settled that an injunction will lie to restrain the collection of an illegal tax. Norman v. Boaz, 85 Ky. 557, 4 S.W. 316; Baldwin v. Shine, 84 Ky. 510, 2 S.W. 164; Gates v. Barrett, 79 Ky. 295. An ordinance, by-law, or order, imposing license fees, may be valid in part and invalid in part. Cooley on Constitutional Limitations, § 177; Levi v. City of Louisville, 97 Ky. 394, 30 S.W. 973, 28 L.R.A. 480; Whaley v. Commonwealth, 110 Ky. 154, 61 S.W. 35. From the proof in this case it would appear that the fiscal court imposed the license fee of $200 on four-horse vehicles on the idea that if free turnpikes were not maintained by the county the owners of such vehicles would be required to pay more than that amount by way of tolls. The defendants introduced proof to the effect that in the opinion of many citizens of Owen county the license fee imposed was altogether reasonable considering the wear and tear on the roads occasioned by the use of four-horse wagons. By the decided weight of the testimony of those who knew, it appears that the owner of a four-horse wagon, after paying the expense of running it and taking into consideration the depreciation in the value of the teams and the wagon itself, could make but little, if anything, more than the amount of the license tax imposed.

It may be conceded that ordinarily the reasonableness of a license fee imposed as a tax is a question for the taxing power, and the courts will not interfere with its discretion. Hall v. Commonwealth, 101 Ky. 382, 41 S.W. 2. This rule we think, however, is subject to the limitation that the tax imposed shall not amount to a prohibition of any useful or legitimate occupation. In re Quong Woo (C. C.) 13 F 229; Mankato v. Fowler, 32 Minn. 364, 20 N.W. 361; City of Ottumwa v. Zekind, 95 Iowa 622, 64 N.W. 646, 29 L.R.A. 734, 58 Am.St.Rep. 447; Van Sant v. Harlem Stage Co., 59 Md. 330; Brooks v. Mangan, 86 Mich. 576, 49 N.W. 633, 24 Am.St.Rep. 137; Caldwell v. City of Lincoln, 19 Neb. 569, 27 N.W. 647. While there are numerous authorities to the contrary, it will be found that the license fee involved in those cases was not prohibitive, and the courts simply declared the general rule that the reasonableness of the tax was a matter within the discretion of the taxing power. We can hardly believe that the same courts that announced that doctrine would hold to be valid an ordinance or statute imposing upon every physician and attorney at law an annual license tax of...