169 Ky. 174 | Ky. Ct. App. | 1916
Opinion of the Court by
Reversing.
The appellant, City of Newport, which is a municipal corporation of the second class, in 1896 adopted an ordinance, which was amended in 1897, and which as amended was in force in 1910 and 1911. The ordinance referred to prohibited any person, corporation or company carrying on any trade, business or profession, within the city, without first having obtained a license
There was in force another ordinance of the* city, in 1910 and 1911, which imposed an annual license tax of ten dollars upon each person, corporation or company engaged in the business of vending milk, whether carried on with'a wagon or in a depot. The taxes so imposed were set apart and appropriated to the police fund of the city.
■ In 1912 the city adopted an ordinance, by the terms of which a license tax of ten dollars, per annum, was imposed upon any one vending milk from a store or depot, except a grocery store, and fifteen dollars, per annum, upon the business of vending milk from a wagon, and where more than one wagon was used in the business by .anyone holding a license, the additional wagon or wagons were required to pay a vehicle license tax. By the same ordinance a license tax of ten dollars, per annum, was imposed upon anyone doing business as a peddler, if the business was conducted upon foot, but if the business was carried on with a wagon, the tax imposed was twenty-five dollars, per annum, but a license only authorized the holder to use one wagon, to be accompanied by not exceeding two persons. These taxes were set apart by the ordinance to the payment of the expenses of the city government. All ordinances and parts of ordinances theretofore enacted, and which related to the subjects dealt with by this ordinance were repealed.
During the years 1910, 1911, 1912, and 1913, an ordinance was in force, the style of which was as follows:
Under all of the above named ordinances, the police officers were authorized to demand a production of the license by any person holding same.
Under these ordinances the appellee obtained the following licenses and paid the following license taxes:
1910.May 26, Milk vender’s license .................................$10.00
1910. May 26, butter business license .............................. 20.00
1911. May 12, Milk vender’s license.................................... 10.00
1911: Feb. —, Peddler’s license................................................ 20.00
1912. May 14, Milk vender’s license.................................... 15.00
1912. May 14, Peddler’s license................................................ 25.00
1913. May 14, Milk vender’s license.................................... 15.00
1913. May 13, Peddler’s license................................................ 25.00
1911.Feb. —, Two 2-horse vehicles.................................... 10.00
1911. Feb. —, Nine 1-horse vehicles................................... 27.00
1911. May 22, one 1-horse vehicle.......................................... 3.00
1912. Feb. 2, two 2-horse vehicles--------------------------- 10.00
1912. Feb. 2, Ten 1-horse vehicles........................................ 30.00
1912. June —•, one 2-horse vehicle ............. — ..................... 5.00 ■
1913. Feb. 6, Three 2-horse véhicles.................................... 15.00
.1913. Feb. 6, Ten 1-horse vehicles.......................................... 30.00
The appellee, alleging that it was a corporation, organized and existing under the laws of the State of Ohio, and engaged in producing, selling and delivering bakery goods, butter, eggs, milk, cream and ice cream, brought this suit, by which it sought to recover of appellant the
The appellant interposed a general demurrer to each paragraph of the petition, which was overruled, and the city failing to plead further, a' judgment was rendered in favor of appellee for the recovery of the amount of taxes paid by it, and perpetually enjoined the appellant and its officers from collecting the taxes from appellee or enforcing the provisions of the ordinances against it.
The appellant having, by its demurrer, confessed the truth of the averments of the petition, 'it becomes necessary to determine whether the petition, conceding all the allegations therein to be true, states a cause of action against the appellant.
Four different license taxes are complained of, viz:
First: A license for dealing in butter.
Second: A license for vending milk.
Third: A license for peddling.
Fourth: A license for using vehicles upon the streets.
For the sake of convenience each of these license taxes and the averments of the petition in regard to them will be considered in their order.
The butter business license was required and paid on the 26th day of May, 1910. At that time there was in force in Newport an ordinance entitled, “An ordinance requiring persons, corporations or companies carrying on occupations, business and practicing their professions, in the city of Newport, Kentucky, to take out a license tax therefor, and prescribing a penalty for the failure of such persons, corporations or companies so to do.” The first section of the ordinance provides that no person, corporation or company shall .carry on any trade, business or profession, as hereinafter mentioned, within the city of Newport, without having a license therefor, as therein provided. The petition, however, only sets out the two sections of the ordinance which impose a license tax upon the business of a huckster and the business of a peddler, which are sub-sections 44 and 45, of section 8, of the ordinance, respectively. It omits to include the first forty-three sub-sections of section 8, and it does not appear whether there are other sub-sections of section 8 or not, after sub-section 45. It is not alleged that there was not an ordinance or section of the quoted ordinance which imposed a license tax of $20.00 upon anyone engaged in dealing in butter within the appellant city. Cities of the class of appellant are authorized to impose a license tax upon franchises, trades, occupations and professions carried on within its limits. Sections 181, 181a, Constitution; section 3058, sub-section 2, Ky. Stat. It cannot be presumed that the butter business license complained of was exacted and collected, when its imposition and collection was not authorized
The milk vender’s licenses complained of were obtained by appellee and the tax paid on May 26th, 1910, $10.00; May 12th, 1911, $10.00; May 14th, 1912, $15.00; and May 14th, 1913, $15.00. A milk dealer is one of the occupations which, by section 3058, sub-section 2, Ky. Stat., the legislative department of a city of the second class is expressly authorized to impose such license tax upon. The tax upon a milk dealer, which appellee was required to pay for carrying on that occupation, in 1910 and 1911, was levied by virtue of an ordinance, which is as follows:
“That each and every persbn, 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 $10.00, when carried on with a wagon, and $10.00 when carried on in a depot.”
In the case of Weyman v. City of Newport, 153 Ky., 487, this ordinance was attacked upon the ground that it discriminated in favor of the persons who sold milk, other than from wagons or in depots, and was not uniform as required by the constitution, but this court upheld the ordinance as valid, and as imposing the license tax upon all venders of milk, and that the word depot embraced any place from which milk was sold.
The license tax paid by appellee for carrying on its business as a milk dealer, in 1912 and 1913, was imposed under another ordinance, which was enacted in 1912, and was an ordinance imposing a license tax upon the various occupations, trades and professions pursued by the different citizens in Newport, and the section of which relative to the business of milk dealers was as follows:
*182 “For venders of milk from a store or depot, except a grocery store, the snm of $10.00; from a wagon, the sum of $15.00, and when more than one wagon is used, the additional wagon or wagons shall pay vehicle license tax. ” ■
This ordinance is attacked upon the grounds that it is contrary to sections 3 and 171, of the constitution, in that it exempts the persons selling milk in groceries from paying the license tax, which is imposed upon other milk dealers, and for that reason it is not uniform, and enforces a discrimination in favor of the dealers of milk in grocery stores.
The portions of the ordinance copied into the petition purport to impose a license tax upon each occupation, trade or profession carried on within the city, but the sections fixing the tax upon the various occupations, with the exception of milk venders from stores and depots, except grocery stores, and from wagons, are not set out in the petition, and the petition fails to allege that a license tax upon vending milk from a grocery store is not imposed. It is true, that under authority given to municipal councils to impose license taxes upon trades, occupations and professions a class may be designated for taxation and other classes not taxed, but when a class is designated for taxation, as all the persons of a certain trade or occupation, then all the persons who follow such trade or occupation must be taxed, and to that extent the taxation must be uniform, but the persons of the occupation may be separated into classes, upon a reasonable and fair basis, and a different license fee imposed upon each class. Weyman v. City of Newport, 153 Ky., 490; Hager v. Walker, 128 Ky., 1; Schuster v. City of Louisville, 124 Ky., 189; City of Louisville v. Sagalowski, 136 Ky., 324; City of Covington v. Dalheim, 126 Ky., 26. License taxes have been held to be valid when the same license fee is exacted from each person engaged in a certain occupation. A uniform tax, in the nature of a license tax levied upon each person engaged in a certain occupation, in accordance with the amount of business done by' him, without any change in proportion to the increase-of the business has been hold to be valid. Again, the class designated for taxation has been divided into subclasses, according to the amount of business done, arid a' different tax levied upon eách of the sub-classes, and' this method of levying a license tax has been held to bo
The appellee obtained peddler’s licenses as follows: 1911, Feb. —, $20.00; 1912, May 14th, $25.00; 1913, May 13th, $25.00. The averments of the petition, as to the manner of its business in Newport, and the demurrer having admitted the truth of them, were that it sold and delivered its goods in one of three 'ways. Its wagons were sent into Newport to deliver goods which had been contracted for while the goods were still in its store houses in Cincinnati, by persons in Newport, who di-' reeled the goods to be brought to them, by telephone or
The requirement of license for engaging in peddling and the imposition of the license tax is an exercise of the police power of the state, and is not a restraint or burden or tax upon interstate commerce, unless there is some discrimination made against one, because of his being a citizen of another state or because of the foreign origin of his goods. Rash v. Farley, 91 Ky., 344; Rash v. Hollaway, 82 Ky., 574; Emert v. Mo., 156 U. S., 319. The only question here is, whether appellee was a peddler within the meaning of the laws of this state. In Com. v. Standard Oil Co., 129 Ky., 744, it was said:
“The offense of peddling without a license is committed where goods are hawked about and offered and sold to any one who will buy; but the statute is not*185 intended-' to obstruct" ordinary business,' of to' prevent the "delivery of goods to a regular customer under a general arrangement, sucb as is regularly made with milkmen and the like.”
When sales are made to a retail merchant for resale, they do not constitute peddling. Standard Oil Co. v. Com., 107 Ky., 606. In Hays v. Com., 107 Ky., 655, it was held, that in order to constitute a person a peddler, he must not only be an itinerant person, but a considerable part of his occupation must be the vending or selling of the article mentioned in the prohibitory statutes. This was quoted with approval in the case of Standard Oil Co. v. Com., 26 R., 142. In Brenner v. Com., 9 R., 289, it was held, that a person who makes weekly or semi-weekly visits to his customers to solicit orders and'delivers goods previously ordered is not a peddler within the meaning of the statute. Sales and deliveries of goods by the appellee’s wagon drivers, in Newport, to persons who had made no previous order for the goods, and with whom there was no general arrangement, in the nature of a standing order to receive a. certain quantity of the goods upon the regular visits of the wagons, was peddling, although the sales and deliveries may have been made at the same time the wagons made visits to deliver goods previously ordered. A sale of an article, once in a great while in the nature of the sale of- a sample, would not constitute one a peddler, where it was-not the purpose to sell the goods in that way as a material part of his business. Under the averments of the petition, however, the business, as conducted by appellee, lacked the essential elements of peddling, and he was not liable for the license tax required of peddlers.
The license tax imposed upon vehicles, and which appellee paid, was for the years 1911, 1912, and 1913. It insists that such tax was illegally imposed and collected, and that the ordinance which imposed it was void, because the wagons were all used by it in its own business and none of them were let for hire, and hence the tax was not upon a franchise, trade, occupation or profession, and the city, appellant, was .not authorized to levy or collect such a tax. While it might be very well said, that the'license fees upon vehicles usedby:the appellee in its business in Newport were really an occupation tax, and that the license fee required technically for carry?
It is insisted that all of the license taxes imposed by the ordinances upon appellee are illegal, and that no such taxes can be required of appellee by reason of such ordinances, because to do so would be to lay a restraint upon interstate commerce, as applied to the business of appellee. The butter business license and the,milk
Hence, the court below was in error in overruling the demurrer to the petition and adjudging a recovery of the sums paid for licenses upon the butter business, for the milk vender’s licenses, and for the vehicle licenses, and enjoining the enforcement of the ordinance as to these licenses.
The judgment is therefore reversed, and the cause remanded for proceedings consistent with this opinion.