138 S.W.2d 951 | Ky. Ct. App. | 1940
Affirming.
This and the case of Joseph Hartman et al. v. City of Louisville,
The Hartman case called in question the constitutionality of what is known as the "Wholesale Fruit and Vegetable Ordinance" adopted by the city of Louisville on March 23, 1937, but in this case, A. Netter and a number of other wholesale produce dealers, assuming the constitutionality of the ordinance, have by pleading and proof attempted to bring themselves within the classification of established dealers as defined therein *494 rather than as non-established dealers as claimed by the city. Under the ordinance, an established dealer is required to pay a license fee of $100 per annum and a non-established dealer is required to pay a license fee of $250 per annum. Appellants allege that they had tendered and offered to pay the $100 license fee and requested that a license be issued to them as established dealers but that the city authorities had refused to accept such sum or to issue the license as requested. They prayed for a writ of mandamus directing the city authorities to issue each of them a license as an established dealer within the meaning of the ordinance upon payment by them of the sum of $100.
On final hearing the motion for writ of mandamus was denied and it was adjudged that each of appellants is a non-established wholesale dealer in produce and that each be required to pay a license fee of $250 before engaging in business as such in the city of Louisville. This appeal followed.
The pertinent portion of the ordinance reads:
"1. An 'Established dealer is defined as one who occupies as owner or tenant, a regularly established building, store, or warehouse, for the purpose of wholesale merchandising, any or all of the aforementioned food products, which room or building is equipped with refrigeration facilities, or other equipment ordinarily used in the wholesale produce business, and,
"(a) who has been a bona fide resident of the City of Louisville, Kentucky, for more than one year next before the application for license, or,
"(b) who was regularly engaged in said business in the City of Louisville, prior to the first day of September preceding the application for license, and has been regularly assessed for City ad valorem taxes on stock of merchandise and other assets used in said business.
"II. All other wholesale produce dealers shall be classified as 'Non-established Dealers'."
Appellants are contending here, as they did below, that they come within the classification of established *495 dealers as defined in the quoted portion of the ordinance. Appellees, of course, hold to the contrary view.
By proof and stipulations it appears that each of appellants has been a bona fide resident of the city of Louisville for more than one year next before application for license and that they have regularly engaged in wholesale produce business in Louisville prior to the first day of September preceding the application for license. So the question remaining to be determined is whether they otherwise bring themselves in the class of established wholesale produce dealers as defined in the ordinance. The evidence shows that appellants rent or lease space in the Hay Market in Louisville. The Hay Market consists of several acres with concrete floors, driveways, and stalls or booths. It is covered by a metal roof supported by steel posts or columns and by steel girders or framework but is not enclosed by walls nor supplied with heating or refrigerating plants, although apparently there are some facilities for icing produce. It is argued by appellants that the leased stalls in the Hay Market where they store their produce and sell it are buildings within the meaning of the ordinance. They cite Concord v. Morgan,
From an examination of other authorities we find that the word building in a restrictive covenant intended to restrain obstruction of a view would include any structure having that effect. Curtis v. Schmidt,
The more restricted meaning of the word building as ordinarily used and understood is a structure enclosing space within walls and roof. Small v. Parkway Auto Supply,
When the purpose and intent of the ordinance is taken into consideration it is quite manifest that the word building was used in the quoted portion of the ordinance in its most restricted sense and was not intended to include stalls and open booths. It is our conclusion that the chancellor properly refused to extend or broaden its meaning so as to cover stalls in the Hay Market and appellants, for this and other reasons that might be assigned, failed to bring themselves within the classification entitling them to license as established dealers.
Judgment affirmed. *497