Weyman v. City of Newport

• Decision Date: 01 May 1913
• Citation: 153 Ky. 487,156 S.W. 109
• Parties: WEYMAN v. CITY OF NEWPORT et al.
• Court: Kentucky Court of Appeals

156 S.W. 109

153 Ky. 487

WEYMAN v. CITY OF NEWPORT et al.

Court of Appeals of Kentucky.

May 1, 1913

Appeal from Circuit Court, Campbell County.

Action by George Weyman against the City of Newport and others. From a judgment for defendants, plaintiff appeals. Affirmed.

Robert C. Simmons, of Covington, for appellant.

Otto Wolf, of Newport, for appellees.

CARROLL J.

In 1894 the general council of the city of Newport, a city of the second class, enacted a general license ordinance fixing the license fees that persons engaged in various trades occupations, and businesses should pay, and in one section of the ordinance provided "that each and every person corporation or company engaged in the business of vending milk in the city of Newport shall pay an annual license fee or tax of the sum of ten dollars when carried on with a wagon, and ten dollars when carried on in a depot." The appellant Weyman, a milk dealer residing in Campbell county and selling milk from a wagon in the city of Newport, brought this suit attacking the validity of this ordinance upon the ground that it was not uniform in its operation of application, in that it imposed a tax upon persons who sold milk from a wagon or "from a depot," and exempted a number of dealers in milk who did not sell from wagons or at milk depots, and upon the further ground that the unequal and discriminatory administration of the ordinance rendered it invalid when attempted to be enforced as to him. He averred in his petition that "'by depot' the framers of said ordinance undertook to describe and refer to a place where milk is sold exclusively or chiefly, said commodity being brought to such place where it is retailed to the public, who as a rule purchase same at said place and who do not require same to be delivered by wagon. The word 'depot,' as used in said ordinance, was then and is now a word of well-recognized meaning, and generally understood by dealers and the public generally as referring to or describing a place where milk is sold in the manner above indicated, and does not include and is not generally understood as including other places of business where milk is sold but not exclusively, and where other commodities and articles of merchandise are sold in greater quantities than milk. *** That in many stores in which other merchandise was sold during said period milk was also sold in large quantities, but said ordinance was not intended to and did not affect or reach milk dealers thus engaged who sold milk in connection with other commodities or articles of trade nor was same enforced or attempted to be enforced against said milk dealers at any time during the period covered thereby, and plaintiff says during all of said time said ordinance was interpreted, construed, and enforced as not affecting or including those numerous classes of milk dealers who did not use a wagon in said business, or carryied same on in a depot, but conducted and carried same on in conjunction with other lines of business." To this petition the city, after entering a general demurrer, filed an answer controverting the averments of so much of it as we have set out. Thereafter evidence was taken in behalf of both parties, and on hearing the petition of appellant was dismissed.

Witnesses introduced for appellant testified, in substance, that a large number of persons engaged in business in the city of Newport sold milk in connection with groceries, confections, and other articles of food, but were not required by the city authorities to pay a milk license. That only one person was engaged in the sale of milk exclusively at his place of business, while a number of persons sold milk from wagons, and the license fee was only collected from the single individual who sold milk exclusively at his place of business and from those who sold it from wagons.

The witnesses in behalf of the city, and who were officers of the city, testified that the purpose of the ordinance was to require all persons who sold milk from wagons or at their place of business, whether exclusively or in connection with other articles, to pay the license tax, and these officers, while admitting that persons who sold milk in connection with other articles were not required to pay the license, attributed this failure to the indifference or negligence of the officials charged with the duty of enforcing the ordinance.

That the city had the right to impose a license tax on all persons engaged in selling milk in the city either exclusively or in connection with other lines of business is not controverted, and indeed it could not be, as section 181 of the Constitution expressly directs that the General Assembly may authorize municipal corporations to impose and collect license fees on trades, occupations, and professions, and this authorization is broad enough to include any business or branch of business that any person may carry on in a city. Under this constitutional authority the General Assembly expressly conferred upon the general council of cities of the second class the power to license, tax, and regulate all persons engaged in business in the city, including "milk dealers." Hall v. Commonwealth, 101 Ky. 382, 41 S.W. 2, 19 Ky. Law Rep. 578.

The power of the city to impose a license tax on vendors of milk being admitted, we find it necessary to consider only two questions raised by counsel for appellant, and these are: (1) Is it necessary that an ordinance of this character should be uniform in its operation, and, if so, is the ordinance in question uniform; and (2) will the failure of the city officials, charged with the duty of collecting the tax, to require all persons subject to the provisions of the ordinance to pay it, exempt from the operation of the ordinance other persons who are undeniably subject to its provisions and who are required to pay the license, or, to state it differently, will the failure of city officials to enforce an ordinance against a large class of persons to whom it is applicable make the ordinance invalid when attempted to be applied to any of the class embraced by its provisions?

In reference to the question of uniformity, we have held in a number of cases that neither section 171 of the Constitution, providing in part that "taxes shall be uniform upon all property subject to taxation within the territorial limits of the authority levying the tax," nor section 181 of the Constitution authorizing the imposition of license fees, is applicable to license taxes imposed by municipal authority in the sense that all trades, occupations, and businesses must be taxed; the settled rule being that it is competent for the taxing authority to tax persons engaged in a designated trade, occupation, or business and exempt or not tax persons engaged in other trades, occupations, or businesses.

We have also held in many cases that persons engaged in the same trade, occupation, or business may be classified, if the classification is made upon a natural and reasonable basis and a different license fee...