142 Ky. 820 | Ky. Ct. App. | 1911
Opinion of the Court by
Affirming..
Jellico, a town of the sixth class, enacted an ordinance'providing that: ;
“Any person or persons, or firms, or corporations,, who shall engage in the business of selling soft drinks,, shall pay a license tax to the -town treasurer of the town, of Jellico of fifty dollars per annum, payable quarterly. ’ ’
The board of trustees also- enacted another ordinance, imposing a fine of five dollars on each person, firm or corporation guilty of a violation of this ordinance.
In pursuance of the authority conferred by these ordinances, the police judge of Jellico issued three warrants against the appellant, who was engaged in the business of selling “soft drinks” in connection with a restaurant conducted by him, charging him with its violation. Atedie these prosecutions were pending before-the police judge, and before there had been a trial, the appellant brought this suit in the circuit court against the police judge seeking to prohibit him from imposing the fine authorized by the ordinance, upon the ground that the business he was engaged in was useful and legitimate and that-the ordinance imposing the license fee ‘ was-
The words “soft drinks” are not defined by statute •or by the ordinance, but in recent years they have come to have a well-known and popular use in this State, and are commonly understood to mean non-intoxicating beverages that are sold in places where there was formerly sold intoxicating liquors, and may be said to have come into use with the abolition of the bar room and -other places where liquor was sold by licensed dealers. While including lemonade, soda water, mineral waters ■and other innocent and harmless beverages that are and -have been for years sold all over the country, they are .generally used in reference to “malt mead,” “near beer”' and' other .'.alcoholic-decoctions, invented to take the place of intoxicating drinks. “Soft’’drinks” that ■contain any per cent of alcohol are regarded as hurtful to the morals and health of the community, and their ■«ale might well come within the control and regulation of the police power. But such “soft drinks” as lemon•ade, soda water, and mineral waters that are pure and wholesome, and contain no alcohol, are not detrimental to the public good and their sale, does not need police regulation'or control. A municipality under its right of classification for revenue or police purposes might well impose one license fee for the sale of drinks that contain any per cent of alcohol, and a different- license fee fox11 the sale of those that contain no alcohol whatever. It might ■further classify by their names beverages that do or do not contain alcohol, and exact for the sale of each class a different fee. In short, the right of classification and 1 he cox-responding right to impose the saxne or a different tax may be exercised whenever the classification can be made upon a reasonable basis. To what extent this power might be carried, it is not necessary to a decision ■of the question before us to determine. It is sufficient to say that'the right of classification confers the authority to fix a higher license fee for one class of beverages than another and what would be a reasonable license tax for one class might be unreasonable for another. To illustrate, a license of fifty dollars, or one hundred dollars,
In Wells v. Town of Mt. Olivet, 126 Ky., 131, we said:
“When an ordinance is assailed upon the ground .that it is illegal, unfair, unreasonable or oppressive, the person complaining will ordinarily be required to point out specifically in. what respects the- ordinance is unreasonable, unequal or oppressive, as applied to the facts of the case relied on by him. An ordinance general in its scope my he adjudged reasonable as applied to one state of facts, and unreasonable when applied to circumstances of a different character. In recognition of these general rules, it is necessary that the plaintiff shall make out a clear case to authorize the court to interfere with the police powers of a municipal corporation when exercised in the enactment of ordinances. * * * When the aid of the court is invoked to declare a municipal ordinance void, it must clearly appear that it is- inherently violative of the law or some of the well-áettled principles that ere generally recognized as limitations upon the power of municipalities in the enactment of ordinances, or, if the ordinance is not inherently defective as coming within these inhibitions, then the person attacking it must affirmatively show -that as applied to him it is unreasonable, unfair, or oppressive.”
Wherefore the judgment dismissing the petition is affirmed.