126 Ky. 526 | Ky. Ct. App. | 1907
Opinion op the Court by
Reversing.
Previous to the 26th day of December, 1906, the license tax to sell spirituous, vinous, and malt liquors in quantities of less than a quart in the city of Mt. Sterling had been fixed by ordinance at the sum of $500 per annum. On this date a special meeting of the board of council was regularly held, having been called in the manner provided by Ky. St. section 3502; and at this meeting an ordinance was adopted fixing the license tax at $600, and repealing all ordinances in conflict therewith. After the passage of this ordinance, appellee applied for and was granted a license to retail spirituous, -vinous, and malt liquors upon condition that he pay the license tax of $600. To procure said license he paid the tax exacted, ,and thereafter brought this action to recover from the city $100, upon the ground that the ordinance raising the tax from $500 to $600 was void, and that the city authorities had no right to exact from him in payment of the license more than $500. The ordinance was assailed upon two grounds: First, because prior to December, 1906, the city council had by ordinance provided when regular meetings of the council should be held, and had furthermore enacted that no ordinance or by-law should be altered or amended except at a regular meeting of the council, and the ordinance in question having been adopted at a special meeting was invalid; second, because the ordinance failed to
If the city authorities required appellee to pay more for the license than they were authorized to demand, he had the right to maintain an action against the city to recover the excess. Board of Council of Harrodsburg v. Renfro, 58 S. W. 795, 22 Ky. Law Rep 806, 51 L. R. A. 897; Bruner v. Town of Stanton, 102 Ky. 459, 43 S. W. 411, 19 Ky. Law Rep. 1514. But, in our opinion, the ordinance fixing the license tax at $600 was valid. The second objection above stated to its validity is not well taken as has been expressly decided in Brown-Foreman Co. v. Com., 125 Ky. 402, 101 S. W. 321, 30 Ky. Law Rep. 793. Under section 3490, subsection 27, Ky. St. 1903, the council in cities of the fourth class had the power to fix the license tax for retailing liquors in any amount not less than $250, nor more than $1,000 So that the only question to be determined is: Did the council have the right to enact the ordinance fixing the tax at $600 at a special session?
Section 3502, Ky. St. 1903, authorizes the mayor to call special sessions of the board of council whenever in his judgment it may be necessary, and at special sessions the council has the right to enact any ordinance within the powers of the council. There is no provision in the act for the. government of cities of the fourth class prescribing the character of ordinances that may be enacted at special meetings of the council; and hence whatever the council may do at a regular session it may do at a special one. The question at issue, then, narrows down to the proposition whether or not the enactment by the council previous to December, 1906, that no ordinance or by-law should be amended except at a regular meet
The city council of Mt. Sterling under the provisions of the charter had the power to fix the license tax for retailing liquors at any sum not less than $250 nor more than $1,000, and when the license tax had been fixed by the council, the same council at a subsequent meeting, or its successor, might within the limits above named raise or lower the tax so as to bind persons applying for license after the change had been made. The ordinance fixing the tax at $600 repealed the ordinance fixing it at $500; and, as appellee applied for and obtained his license when the ordinance fixing the tax at $600 was in effect, he was rightfully required to pay the sum named.
Wherefore the judgment is reversed, with directions to dismiss appellee’s petition.