119 Ky. 1 | Ky. Ct. App. | 1904
Lead Opinion
Opinion of the court by
Affirming.
By an act which became a law March 29, 1902 (Acts 1902, pp. 2S1-392, c. 128; section 4224, Ky. :St;; 1903), the Genei'al Assembly re-enacted and substantially amended the
This appeal, bringing in question the conviction on the above facts, presents the section of the statute quoted above for construction. It is conceded that the Legislature had 1he right to tax occupations, including that of selling oils, whether by retail or wholesale. Also that it had the power lo exact a license tax of peddlers. Appellant contends that under certain state of facts — as where it sells oil in small quantities from its itinerant wagons direct to consumers, not merchants, for their own use — it may be a peddler. Standard Oil Co. v. Commonwealth, 80 S. W., 1150, 26 Ky. Law Rep., 142. This, it argues, is selling by retail, and is the only selling of oil by retail covered by any statute; that, therefore, the act of 1902 must be held to repeal the peddler’s statute wherein they conflict — that is, in the matter of selling oils' — for it can not be presumed that the Legislature intended to tax twice the same occupation by the same person. It is true that this court has held that selling oil by retail by appellant’s wagons traveling from house to house or point to point, where the sale is not to a merchant for' resale, is peddling within the terms of the statute on the subject, which reads: “All itinerant persons vending lightning rods, patent rights, or territory for the sale, use or manufacture, of patent rights, goods, wares, merchandise, clocks, watches, jewelry, gold, silver or plated ware, spectacles, drugs, nostrums, perfumery, and any other thing not hereinafter specially exempt, shall be deemed peddlers.”
The license tax required of peddlers by this same, statute is $50 for one person with two horse wagon, ani for one
Appellant contends, however the argument just noticed may be 'disposed of, that it was not guilty under this statute, because the agreed facts show that the sales complained of were not retail, but were wholesale, transactions. Lexicographers are cited to the effect that retail means “to sell in small quantities or at second hand; to deal out or dispose of- in small ■ quantities;” while “wholesale” is defined as “sales of goods in large quantities to retailers; sale in the gross.” The definitions given are undoubtedly correct as applied to current transactions. Were we left to the mere words of the section, infringed, it might be difficult, if not impossible,- to give the word “retail” another meaning. But we have just seen .that that section is only one of a very com
The judgment of the circuit court in conformity herewith is aiffirmed.
Rehearing
Response to petition for rehearing by
Appellant thinks the opinion is not clear in its meaning. We decide that in sales by appellant and others doing 'similar business, where the oils are delivered from its wagons, and the sales are to retail dealers for resale, thle transaction comes under section 4224, Ky. St., 1903, involved in the appeal. For each wagon so engaged a license fee of $5 per annum must be paid, which is the license fee for the use of that wagon anywhere in the State. If the sales from the wagon are -to others than retail dealers for resale, the act is peddling (Standard Oil Co. v. Commonwealth, 80 S. W., 1150, 26 Ky. Law Rep., 142); and, to do that character of business, appellant must take out a peddler’s license, being $50 per year for one person with two horse wagon, $40 for one person with one horse wagon, and $20 additional for each additional person accompanying the wagon. Those fees are for the whole State. For the county, one-fourth as much as' is charged for the whole State.