177 Ky. 216 | Ky. Ct. App. | 1917
Opinion op the Court by
— Reversing.
Edd R. Eales was fined for violation of the license ordinance of the city of Barhourville, and prosecutes this appeal for the purpose of testing the validity of the ordinance.
Section 1, of the ordinance in question, makes it unlawful for any person, firm or corporation, to engage in
According to the agreed facts, appellant was a resident and citizen of the state of Illinois, and at the time of his arrest, was engaged in distributing to the residents of Barbonrville, free sample packages of “Arm and Hammer Soda,” and printed matter referring thereto, which had been sent to him by his employer, Church & Dwight, a corporation organized under the laws of the state of Maine, with its principal place of business in the city of New York, from which place said packages of soda and printed matter were shipped to appellant at Barbour-ville, to be distributed by him under his employment for the purpose of furthering said corporation’s business of manufacturing, shipping, and selling soda in the city of Barbonrville.
We find no merit in the contention that the license fee in question is an unjust burden on interstate commerce. Appellant was not engaged in selling merchandise by sample and transmitting orders therefor to be filled by his employer. The interstate movements of the merchandise and printed matter ended upon their delivery to the appellant, and the mere fact that such articles were sent to him for the purpose of distribution and that their distribution might ultimately result in interstate business, is altogether too remote to sustain the position that he was then engaged in interstate commerce.
But the contention that the ordinance is discriminatory presents- a more serious question. The cases of City of Carlisle v. Hechinger, et al., 45 S. W. 358; Crosdale v. City of Cynthiana, 50 S. W. 977; West v. City of Mt. Sterling, 65 S. W. 120; and Flemingsburg v. Murz, 100 S. W. 333, do not sustain the validity of the ordinance. In the first mentioned case, it was held that a city of the fifth class had the power to impose and col
Nor does the case come within the rule announced in Louisville v. Sagalowski, 136 Ky. 324, 124 S. W. 339, 136 A. S. R. 258, where it was held that in imposing license taxes on persons engaged in merchandising, a municipality may place in one class those who pay taxes on regular assessments, and in another class those who, although in the same business, so conduct their affairs as to be out of business when the assessments are made.
While our constitution permits the classification of occupations and trades for the purpose of license taxation, it is well settled that there must be some reasonable basis for the classification, and classification based on
Judgment reversed and cause remanded for proceedings consistent with this oponion.