Vertner Smith Co. v. Town of Elsmere

• Citation: 214 S.W.2d 765,308 Ky. 442
• Parties: VERTNER SMITH CO. v. TOWN OF ELSMERE et al.
• Decision Date: 05 November 1948
• Court: Court of Appeals of Kentucky

214 S.W.2d 765

308 Ky. 442

VERTNER SMITH CO. v. TOWN OF ELSMERE et al.

Court of Appeals of Kentucky

November 5, 1948

Appeal from Circuit Court, Kenton County, Criminal, Common Law and Equity Division; Joseph P. Goodenough, Judge.

Action by the Vertner Smith Co., against Town of Elsmere and others to determine the validity of an ordinance. From an adverse judgment, plaintiff appeals.

Reversed with directions.

Dodd &amp Dodd, of Louisville, Ky. and James B. Milliken, of Cincinnati, Ohio, for appellant.

Ervin L. Bramlage, City Atty., of Cincinnati, Ohio, for appellees.

LATIMER Justice.

Appellant is here attacking the validity of an ordinance of the town of Elsmere, a city of the 6th class, situated in Kenton County. The ordinance has been in full force and effect since December 6, 1938, and has never been attacked until this present litigation.

Sections 2, 3, and 4, beig the parts of the ordinance pertinent to this action, read as follows:

'Section II.

'Every person, firm or corporation who drives a commercial motor driven truck weighing not over One-half (1/2) ton upon and over the streets of the Town of Elsmere shall pay an annual tax of Five ($5.00) Dollars for such privilege; and any person, firm or corporation operating a motor driven truck over the streets of Elsmere which truck weighs more than One-half (1/2) ton shall pay an annual tax of Ten ($10.00) Dollars.

'Section III.

'Any person, firm or corporation who operates a motor driven truck in connection with his business within the Town of Elsmere, and who pays an occupational tax to the Town of Elsmere for such business shall not be required to pay the tax imposed herein.

'Section IV.

'The revenue derived from the provisions of this Ordinance shall be paid into the street repair fund, and shall be used only for the purpose of repairing the streets of the Town of Elsmere.'

Judgment was rendered upholding the validity of the ordinance. Appellant prosecutes this appeal urging reversal and challenging the validity of the ordinance upon three principle grounds: (1) Lack of authority of the Board of Trustees of the town of Elsmere to tax appellant for the use of the city streets. (2) The failure of the Elsmere ordinance to discriminate between transients and those doing business in the city. (3) Because it discriminates between residents and non-residents.

Appellant is a wholesale liquor dealer with its chief office and place of business in Louisville. All the business is transacted in Louisville. The products are then delivered by trucks to the retailer in Elsmere.

Appellant takes the position that the town of Elsmere is attempting to exercise authority over the transportation and distribution of alcoholic beverages contrary to the provision of the Alcoholic Beverage Control Act. KRS 241.010 et seq. It is insisted that the Act is comprehensive and all inclusive and grants specifically the right to transport. We agree with appellant that the Alcoholic Beverage Control Act is comprehensive and has as its purpose such control of the traffic as would minimize the commonly attending evils, and were this an attempt to tax the business or an effort to control the transportation of the particular commodity, appellant would have to prevail in his argument, but the mere fact that the appellant is operacting under the control act, and has its permit so to do, in no way could limit a municipality in, or deprive a municipality of, the right of regulating the use of its streets.

Considerable argument is made concerning the provisions of the Act wherein the wholesaler is given the right to transport from the licensed premises, for himself only, any alcoholic beverages which his license authorized him to sell.

The statutory right to transport is relied on by appellant. KRS 243.200(1) provides: 'A distilled spirits and wine transporter's license shall authorize the licensee to transport distilled spirits and wine to or from the licensed premises of any licensee under KRS 243.020 to 243.670 if both the consignor and consignee in each case are authorized by the law of the states of their residence to sell, purchase, ship or receive the alcoholic beverages.'

And then further in subsection (4): 'Distilled spirits and wine may be transported by the holder of any license authorized by KRS 243.020 * * *.'

It will be noted that the above merely gives the right to transport. That right does not mean that a truck can be operated on the highway without a proper truck license, nor does it mean that a municipality cannot properly subject it to a street usage tax merely because the owner has a permit to transport liquor.

Appellant leans heavily upon the case of Commonwealth, for Use and Benefit of City of Hazard v. Day, 287 Ky. 176, 152 S.W.2d 597. The City of Hazard enacted an ordinance, the pertinent part of which provides: 'Provided: that where such wholesaler, jobber or distributor maintains a store, plant, warehouse or distribution point outside of the City of Hazard and delivers liquors to customers within the corporate limits of said city by means of his own trucks, having first obtained the license as such wholesaler, jobber or distributor required by the laws of the State of Kentucky, may be granted a license by the Clerk of the City of Hazard upon paying into the Treasury of said city the sum of $50.00 for each truck so used.'

We held that the ordinance of the City of Hazard was illegal and void. It is obvious why we so held, as this was an attempt to exact from the distributor, who maintained his store, plant or warehouse outside the city limits, a...