198 S.W.2d 789 | Ky. Ct. App. | 1946
Affirming.
The Adam Hat Stores, and twenty-nine other corporations operating chain stores in this State, instituted this declaratory judgment action against the Commissioner of Revenue wherein they attacked the constitutionality of Chapter 174 of the Acts of 1940. Also, they *634 sought to recover the amounts in taxes collected from each of them under the Act, which each averred had been paid under protest. Issue was joined, some of the facts stipulated, proof was taken as to others, and upon submission of the case the chancellor in a direct and concisely written opinion held the Act was a revenue and not a police measure and declared it unconstitutional, and his judgment ordered the taxes collected thereunder to be returned.
A similar Act passed in 1934, as amended in 1936, was declared to be unconstitutional in Great Atlantic Pacific Tea Co. v. Kentucky Tax Commission,
We have thoroughly reconsidered our opinion in the A. P. Case,
The other question before us is whether the 1940 Act is a police regulation and can be declared constitutional upon that theory. A comparison of the 1940 Act with the one of 1934, as amended in 1936, reveals practically no difference between the two, except in their respective *635 titles and a slight variation in the rates of taxes imposed and the number of stores falling within the several rates. The title of the 1940 Act covers almost two closely typed pages containing 9 paragraphs which set out certain purported advantages a chain store has over a local merchant, and recites that the public policy of the State requires that such stores be regulated so as to prevent them from destroying or unfairly impeding the operations of independent merchants. But when the body of the Act is read, nowhere in it is found any regulation or control of chain stores, or of their methods of merchandising. While the title of the Act recites it is a police measure, the Act, itself, only lays a tax and is noticeably silent as to imposing any prohibition or restriction on chain stores.
Appellants insist that this court must accept as true the facts recited in the title of an act and cannot go behind the title and question the facts contained therein, citing Shaw v. Fox, County Judge,
While the title to the 1940 Act is short on stating facts and is long on stating arguments and conclusions, we are not questioning the verity of any statements it contains; nor are we concerned with the legislative wisdom or motives in passing the Act. But we are in accord with appellees that although the title of the Act recites it is a regulatory measure passed under the general police power yet the body of the Act does not contain one regulation, restriction or prohibition on chain stores or their method of doing business; therefore, it is not a police regulation, regardless of what may be stated in its title. In an elaborate opinion in City of Lexington *636
v. Thompson,
In the so-called title of this 1940 Act all of its nine paragraphs, with one exception, begin with the word "whereas," and it is more of a preamble than a title. It is true that the title of an act may be resorted to as an aid in construing the act, but a preamble is not generally considered as an essential part of a legislative act and cannot confer or enlarge its powers. 50 Am. Jur., "Statutes," sec. 309, p. 297; Jones v. City of Paducah,
We are further convinced that the Act is a revenue measure rather than a police measure because the revenue it raises is so greatly in excess of the cost to the State of issuing the license and of enforcing the statute. It is stipulated in the record that in the year 1940 the receipts from the Act were $177,188.65, while the costs of administration were $2,861.67; and we find that the receipts and costs for the years 1941 and 1942 compare favorably with the 1940 figures. The rule is thus stated *637
in City of Henderson v. Lockett,
"But, where a license fee is imposed under the police power, the fee exacted must not be so large as to charge the ordinance with the imputation of a revenue-producing purpose. The fee that may be imposed under the police power is one that is sufficient only to compensate the municipality for issuing the license and for exercising a supervision regulation over the subjects thereof. Anything in addition to this amounts to a tax for revenue, and cannot be upheld as a valid exercise of the police power."
The Lockett case has been followed in an unbroken line of decisions down to Daily v. City of Owensboro,
The constitutionality of the Act is attacked on several other grounds but we deem it unnecessary to consider or discuss them.
The judgment is affirmed.