City of Carlisle v. Heckinger & Co.

103 Ky. 381 | Ky. Ct. App. | 1898

CHIEF JUSTICE LEWIS

delivered the opinion of the court.

By an ordinance of the common council of Carlisle, a city of the fifth class, license fees, required to be paid by peddlers or itinerant retailers of goods, wares and merchandise of any description, was fixed at $50 per year, or $5 per day. And by another ordinance it was provided that wherever any thing, calling or article, is required to-be licensed, a person who shall do such thing, pursue-such calling or employ such article without such license, shall be fined for each offense (each day being deemed a separate offense), not specially provided for, not less, than $5 nor more than $100

Appellee, David Heckinger and Daniel Kiefer Company, and William Trouts, Jr., a traveling salesman or agent of the firm, brought the present action against the city of Carlisle-for a writ of prohibition restraining appellant and its officers from “executing warrants under said ordinances or from any way interfering with or arresting or molesting the appellee or its agents for selling goods in said city.”

According to an agreed statement of facts., William Trouts is a residerit of the city of Maysville, and clerk and agent of David Heckinger & Co., owners and proprietors of a clothing' store in that city; that he came to the city of Carlisle, September 14,1896, bringing with him a lot of clothing, rented a room at the St. Cloud Hotel, in Car-lisle, displayed and offered his goods for sale and sold a portion of them without having procured a license from the city of Carlisle to pursue.such calling; that Heckinger & Co. are tona fide merchants of Maysville and residents of this State, and pay taxes on said goods and pay their proportion of the burden of supporting by taxation the county, city and State in which they a-re residents.

The lower court, upon final hearing, adjudged the ordinance fixing the fine mentioned invalid, and that consequently the common council of the city of Carlisle and all officers thereof be. prohibited punishing or attempting to punish by fine or otherwise, appellees Heckinger & Co., or their agent, for refusing to pay the license fee men- .. tioned in said ordinance.

There arises two questions to be considered on revision of the judgment appealed from. First, whether in exercise of the power conferred by section 181 of the Constitution upon the General Assembly to delegate authority to municipal corporations to impose and provide for collection of-taxes, the authority has been, in fact, given to cities of the fifth class, to which Carlisle belongs, to impose and collect the license fee in question.

Second, whether imposition by ordinance of the common council of Carlisle of the fine in question because less than that provided for the same offense by section 4201 Kentucky Statutes, being not less than $50 nor more than $1,000, is invalid because repugnant to section 168 of the Constitution as follows:

“No municipal ordinance shall fix a penalty for a violation thereof at less than that imposed by statute for the same offense. A conviction or acquittal under either shall constitute a bar to another prosecution for the same offense.”

Subsection 4, section 3637, Ky. Stats., empowers a city of the fifth class “to impose and collect license fees on stock used for breeding purposes, and on all franchises, trades, occupations and professions.”

Although authority is not thereby specifically conferred to impose and collect a license fee or tax upon peddlers or itinerant retailers of goods, wares or merchandise, still if the trade or occupation of such persons be exercised within the limits of a municipal corporation for profit, and in competition with resident tax payers, we do not see any reason why they should not, nor may not, in entire, harmony with the language used, be subject to payment of the license fee.

Under the former Constitution, a vicious practice was permitted, or might and was frequently resorted to by violators of common law offenses, or offenses forbidden by. statutes, general in character, of voluntarily surrendering and consenting to imposition of a fine by a municipal officer less in amount or degree than would have been imposed by State courts.

It was to remedy that evil that section 168 was made a part of the Constitution, not to interfere with or permit ■j\ municipal Legislature imposing fines at its discretion, for violation of an ordinance merely local in its operation. That imposition of such fine is not a bar to prosecution for peddling without license in violation of the General Statutes of the State, shows it was not intended to be within purview of or prohibited by the Constitution.

Wherefore the judgment is reversed for further proceedings consistent with this opinion.