Elliott v. City of Louisville

| Ky. Ct. App. | May 8, 1897

JUDGE Du RELLE

delivered ti-ie opinion of the court.

The appellant, wbo for some fifty years has been a practicing attorney in the courts of this Commonwealth, was summoned before the Police Court of the city of Louisville to show cause why he should not be fined for unlawfully engaging in the practice of his profession as a business for fee and reward in said city without having a license so to do. The proceeding was instituted under an ordinance concerning certain licenses in the city of Louisville, approved April 11, 1894, by which a license of $10 was required to be paid into tbe Sinking Fund of the city of Louisville for sinking fund purposes by each practicing physician, surgeon, dentist, and attorney at la.w in Louisville, Kentucky^ with a provision that for any yiolation of the ordinance the party on conviction shall be fined not less than $5 nor more than $80 for each offense. Appellant, by a judgment of the Police Court, was fined $10 and costs, and thereupon, under authority of section 2922 Kentucky. Statutes (section 163 of the charter of cities of the first class, approved July 1,1893,) instituted in the Common Pleas Division of the Jefferson Circuit Court a proceeding for a writ of prohibition. A temporary writ was granted upon the statements of the petition and amended petition, but upon final hearing the writ of prohibition was denied, and an appeal was taken to this court.

The ordinance under which appellant was fined was adopt» ed pursuant to section 3011 of the Kentucky Statutes (in the charter of cities of the first class), which provides: “The general council, may by ordinance, provide for the following. licenses, to be paid into the sinking fund, with adequate penalties, for doing business for following the calling, occupation, profession, or using or holding or exhibiting the articles herein named without the required license * * * For each attorney and counsellor at law, physician, surgeon, dentist or architect not less than $10 nor more than $100 per annum. Should any of the foregoing be associated in a firm, each member of the firm shall pay a separate license tax.”

Appellant urges the following objections to the validity of the proceeding' against him:- First, that the ordinance is retrospective, and if enforced against him would unlawfully deprive him of a franchise and right vested in him by the laws of Kentucky. This we regard as no longer an open question. “The usual provisions of the constitutions of the different States do not prohibit the Legislatures from imposing or authorizing municipal authorities to impose taxes upon trades, special professions and occupations. Authority to tax all persons exercising any profession may be executed by taxing each member of a firm separately.” (Dillon on Municipal Corporations, section 793.)

In Woodruff v. The City of Louisville, ms. opinion, April 19, 1872, this court held: “The exaction of the license fee complained of in this case must, in our opinion, be regarded as merely the imposition of a tax upon the particular vocation or business of an attorney at law, as like taxes are imposed on other lucrative pursuits for revenue purposes; and as the burden thus imposed on the appellant is not shown to have been disproportionate or unequal to those borne by tradesmen and professional men generally for the same purpose, we can not regard it as an unauthorized taking of private property for public use; but we concur with the court below that it was a legal and proper exercise of the taxing power. Wherefore the judgment is affirmed.” And in 8 R., 870, in the case of Bullitt v. the city of Paducah, Chief Justice Pryor delivering the opinion, this court held that “A tax in the form of a license fee may be imposed under a legislative authority upon any trade, profession or balling; and while such a tax must be levied on all alike in the same profession, it is not essential to its validity that every calling within the particular locality shall be required to pay the tax.” In that case the city had obtained an amendment to its charter empowering it to impose a license upon certain occupations and business pursuits, including attorneys, to aid in discharging the city’s indebtedness. The city council proceeded by ordinance to impose a license upon nearly every business pursuit, including lawyers, merchants, physicians,'etc., and appellant refusing to pay, the ordinance was enforced against him and was held to be valid. (See A. & E. Enc., 13, page 538, note 1.) And in Levi v. City of Louisville, 97 Ky., 394" court="Ky. Ct. App." date_filed="1895-05-05" href="https://app.midpage.ai/document/levi-v-city-of-louisville-7133163?utm_source=webapp" opinion_id="7133163">97 Ky., 394, it was held that a license tax within the meaning of the constitution is not a burden on property, but on that which results from its em joyment, or the conduct of the business or calling. It is unnecessary, therefore, to consider in detail the numerous authorities cited upon this question for appellant.

The second objection is that the ordinance has not been passed by both or either board of the general council as required by law, and is, therefore, illegal a.nd void. This is based upon the fact that the journals of the two boards fail to expressly state that the ordinance was read in full, section 15 of the act for the government of cities of the first ■class providing that “No ordinance shall be passed until it shall be read in full in each board.” The' journals show that the ordinance was separately read and passed, and further show the names of the aldermen and councilmen voting for and against its passage. From this we think the presumption arises that the ordinance was read in full as required by the charter. In this connection may be considered the objection urged to the title of the ordinance. We think the title expresses with sufficient clearness the subject embraced in the ordinance and therein legislated upon. If it were required that the title should enumerate every variety of trade or occupation embraced in the ordinance, the title would be almost as long as the ordinance. It is-sufficient if it call attention to the subject concerning which the legislation was adopted.

Another objection is that the Board of Sinking Fund Commissioners of the city of Louisville is a corporation; that section 190 of the present constitution provides that “No corporation in existence at the time of the adoption of this constitution shall have the benefit of future legislation without first filing in the office of the Secretary of State an acceptance of the provisions of this constitution,” and that the Board of Sinking Fund Commissioners was in existence prior to the adoption of the constitution and by the .act for the government of cities of the first class was “continued as now established by law.” It is therefore urged that the failure of the board to accept the provisions of the constitution renders the ordinance for its benefit unenforceable and void. Without stopping to consider whether this section of the constitution was intended a-t all to apply to-municipal corporations, to which class the Board of Sinking Fund Commissioners of the city of Louisville may, with some reason, be assumed to belong, or whether the act for the government of cities of the first class did not re-enact the statute creating the Board of Sinking Fund Commissioners and thereby constitute it a new corporation created since the adoption of the present constitution, — it is sufficient to say that there is no evidence in the record to show that the board has not adopted the provisions of the new constitulion. The brief of counsel furnishes the only information ' upon this subject.

For the reasons indicated the judgment is affirmed.