Hertz Drivurself Stations, Inc. v. City of Louisville

• Decision Date: 04 June 1943
• Citation: 294 Ky. 568,172 S.W.2d 207
• Parties: HERTZ DRIVURSELF STATIONS, Inc., v. CITY OF LOUISVILLE et al. DIXIE DRIV-IT-YOURSELF SYSTEM, LOUISVILLE CO., Inc., v. SAME. U-DRIVE-IT CO. OF OHIO, Inc., v. SAME.
• Court: Kentucky Court of Appeals

172 S.W.2d 207

294 Ky. 568

HERTZ DRIVURSELF STATIONS, Inc., v. CITY OF LOUISVILLE et al.

DIXIE DRIV-IT-YOURSELF SYSTEM, LOUISVILLE CO., Inc., v. SAME.

U-DRIVE-IT CO. OF OHIO, Inc., v. SAME.

Court of Appeals of Kentucky

June 4, 1943

Appeal from Circuit Court, Jefferson County, Chancery Branch, First Division; Churchill Humphrey, Judge.

Suits by Hertz Drivurself Stations, Inc., by Dixie Driv-It-Yourself System, Louisville Company, Inc., and by the U-Drive-It Company of Ohio, Inc., against the City of Louisville and others to enjoin the city from collecting from plaintiffs an annual license operating tax laid by city ordinance on trucks used on its streets. From judgments of dismissal, plaintiffs appeal.

Affirmed.

Mortimer Viser, Davis, Boehl, Viser & Marcus, and Greenberry Simmons all of Louisville, for appellants.

Lawrence S. Poston and Lewis C. Carroll, both of Louisville, for appellees.

SIMS Justice.

These three appeals have been heard together and all of them will be disposed of in this opinion. Each appellant, Hertz Drivurself Stations, Dixie Driv-It-Yourself System, and The U-Drive-It Company of Ohio, as plaintiff below, brought a suit to enjoin the City of Louisville from collecting from it an annual license operating tax laid by city ordinance on trucks used on its streets. The three actions were heard together by the chancellor who refused the injunction, upheld the ordinance, dismissed the petitions and plaintiffs appeal from his judgments.

The sole business of each plaintiff is leasing trucks owned by it to customers on a "drive-it-yourself" basis. The trucks thus rented are operated, controlled and driven by the customers on the streets of Louisville. Plaintiffs have no hand in the driving or operation of the trucks and their sole business is owning and leasing the trucks for hire to customers in need of them while transacting business in Louisville. Under ordinance No. 187 enacted by the city council in 1940 and called a Business Privilege License Ordinance, a revenue raising license tax was laid against the business of each plaintiff. In 1935 the city council passed ordinance No. 201, providing a license fee shall be paid annually "by every owner or operator of a motor truck" before operating same upon the streets of Louisville, which license fees range from $6 for a truck of not exceeding one ton capacity, to $24 for trucks of not more than three tons capacity.

Plaintiffs have paid the business license, or occupational, tax provided in ordinance No. 187, but each of them refused to pay the annual operating tax laid under ordinance No. 201 and have sought to enjoin its collection on the theory that their sole business is leasing their trucks under the "drive-it-yourself" plan for which they pay an occupational tax; that for the city to lay another tax against them for operating their trucks on the streets is laying a tax upon an integral or indispensable part of their business upon which they are already paying an occupational tax and amounts to double taxation, which is against the public policy of the State. It is further argued by plaintiffs that they do not operate their trucks on the streets but that is done by the lessees, hence if the tax is collectible, it must be enforced against the lessees of the trucks and not the owners.

Defendants contend that the tax laid under ordinance No. 187 is a revenue measure in the form of an occupational or business license tax, while that levied under ordinance No. 201 is a regulatory measure passed under authority of § 2739g-92, KS (now KRS 186.270), and that a revenue tax and a tax levied under the police power as a regulatory measure may be imposed upon the same business or property without offending our public policy against double taxation.

Plaintiffs put their chief reliance in City of Newport v Fitzer, 131 Ky. 544, 115 S.W. 742, 21 L.R.A., N.S., 279 wherein it was written that the city, after issuing Fitzer a license for which he paid $20 to carry on the business of a huckster or peddler from a one-horse wagon on the streets of the city, could not then require him to take out a vehicular license of $3 to drive his wagon on the streets. The court reasoned that driving the wagon on the streets was an integral or essential part of Fitzer's huckstering business and as he had paid one license to conduct such business another license could not be imposed upon him for driving his wagon on the streets, unless the ordinance by express words or necessary implication showed...