Wiemer v. Comr's Sinking Fund of Louisville

• Decision Date: 22 January 1907
• Citation: 124 Ky. 377
• Parties: Wiemer v. Comr's Sinking Fund of Louisville
• Court: Kentucky Court of Appeals

124 Ky. 377

Wiemer v. Comr's Sinking Fund of Louisville

Court of Appeals of Kentucky.

January 22, 1907.

Appeal from Jefferson Circuit Court, Chancery Branch (Second Division).

SHACKELFORD MILLER, Judge.

Judgment for defendants. Plaintiff appeals. Affirmed.

LANE & HARRISON, CHANDLER & NORMAN and D. W. SANDERS, for appellant.

A. P. HUMPHREY and A. E. RICHARDS, attorneys for appellees.

OPINION OF THE COURT BY JUDGE BARKER — Affirming.

This is an action instituted by the appellant, Robert F. Wiemer (the plaintiff below), on behalf of himself and all others similarly situated, to recover of the Commissioners of the Sinking Fund of the City of Louisville certain license taxes paid on vehicles for the years 1904 and 1905, amounting in the aggregate to $75,000. The right of recovery is based on the theory that there was no authority in the charter of cities of the first class to support the ordinance under which the licenses were imposed and collected after the repeal of section 3011, Ky. Stat., 1903, by section 2 of the amending act adopted in 1904.

The first, and, from the view we have taken of it, the controlling, question in the case, is whether or not section 2 of the statute enacted by the General Assembly in 1904 is germane to its title. If the question must be answered in the negative, then the act is in contravention of section 51 of the Constitution, which, among other things, provides "that no law enacted by the General Assembly shall relate to more than one subject, and that shall be embraced in the title," and is therefore void, and the judgment of the chancellor dismissing the petition must be affirmed for that reason. The title of the act in question is "An Act to amend the revenue laws of cities of the first class so as to carry into effect the amendment of section 181 of the present Constitution." Acts 1904, p. 93, c. 33. As conducive to a clear understanding of the question about to be discussed, it is necessary to bear in mind that one of the most important principles of the Constitution as adopted in 1891 was the imperative requirement that the ad valorem system should be applied in all matters of taxation, whether State, county or municipal. In addition to the ad valorem system, revenue was permitted to be raised by licenses on occupations, incomes, etc. As to municipalities, the license system was especially provided for by section 181 of the Constitution. But the substitution of a license for the advalorem system was illegal under the Constitution. Levi v. City of Louisville, 97 Ky. 394, 16 Ky. Law Rep. 872, 30 S. W. 973, 20 L. R. A. 480. Under the Constitution as thus construed the city of Louisville adjusted its fiscal system to the property subject to taxation by it, applying the ad valorem system as was required by the fundamental law, and in addition it inaugurated and put in force a license system, by which to derive an income on various named callings, occupations, professions, and articles of property. Of necessity, such a system was most elaborate and extensive in its details, and we do not deem it necessary to more than generally allude to it, except in so far as it is absolutely necessary for a full comprehension of the question before us.

One of the departments of the fiscal system of Louisville is the "Commissioners of the Sinking Fund," a corporation established for the purpose of receiving and collecting certain specified revenue and applying it to the payment of the principal and interest of the bonded indebtedness of the city as it falls due. Among the resources of the sinking fund are all licenses on trades, occupations, and professions, imposed in addition to the ad valorem system. A general power to impose these is provided in sections 2980 and 3012 of the Kentucky Statutes of 1903 (charter of cities of the first class), and specifically by section 3011. This last section contains a large number of named subjects of license, and provides a maximum and minimum therefor. Between the maximum and minimum provided by the statute the general council is permitted to exercise its discretion in fixing the amount of the license. That nothing subject to be licensed should be overlooked or omitted in the grant of power to the council, section 3012 was enacted, which substantially provides that any subject of license not specifically provided for in section 3011 may have an annual license imposed upon it of not less than $5 and not more than $5,000. Under this grant of power the general council of the city of Louisville ordained ordinances imposing license taxes upon all of the subjects of such a system of taxation, and applying the revenue arising therefrom to the purposes of the sinking fund. Among the things upon which a license tax was imposed were vehicles.

No question is, or can be, made of the validity of the collection of a license tax on vehicles from 1893, when the charter was enacted, to 1904, when the act in question went into effect. From the date of the decision in Levi v. City of Louisville, the merchants and manufacturers of the city of Louisville began an agitation in favor of an amendment to the constitution permitting municipalities, if they so desired, to adopt a license system in lieu of ad valorem taxation in raising their local revenue. The final result of this was the adoption of an amendment to section 181 of the constitution which is as follows: "And the General Assembly may, by general laws only, authorize cities or towns of any class to provide for taxation for municipal purposes, on personal property, tangible and intangible, based on incomes, licenses or franchises, in lieu of an ad valorem tax thereon. * * *" It was to put this amendment in force that the statute of 1904, out of which grew this litigation, was enacted by the General Assembly. By the second section of the act of 1904, section 3011 of the Kentucky Statutes is repealed and re-enacted in all respects as before, except to omit the names of certain things and occupations theretofore required to be licensed. Among these are vehicles, and it is the sole contention of appellants that by this omission the general council lost the power to afterwards impose licenses on vehicles. Appellee, while not admitting that the omission deprives the city of the right to impose licenses on vehicles, insists that section 2 of the act of 1904 is unconstitutional, for the...