Town of Pikeville v. Huffman

112 Ky. 360 | Ky. Ct. App. | 1901

Opinion op the court by

JUDGE O’REAR —

Reveksinq.

Appellant is a town of the sixth class. Among its enumerated -powers are those found in section 3704, Kentucky 'Statutes. Subsection 1 is: “To pass ordinances not in conflict with the Constitution or laws of this Commonwealth or of the United States, and .to impose and collect license fees and taxes on stock used for breeding purposes, and all franchises, trades, occupations and professions.” Subsection 4 provides especially for the licensing of the sale of “spirituous, vinous or malt liquors.” Subsection-7: “To do and perform any and all other acts and things necessary or proper to carry out the provisions of this chapter, and to enact and enforce within the limits of said town all other local, police, sanitary and other regulations as do not conflict with general laws.” Appellees were a firm of retail grocers in the town, among.many other articles having cider for sale. The town passed an ordinance in April, 1890, imposing a license tax of $200 per annum on each person “engaged in the occupation of selling cider in the corporate limits of the town of Pikeville, Pike county, Kentucky.” At the'same time appellant passed an ordinance “that any person who. shall engage in the business, or sell, or offer to sell, cider in the corporate limits” of the town, before procuring the license and paying the tax provided by the former ordinance, should be fined, on conviction, not less than $20, nor more than $50. Appellees applied for and were granted a license for the “occupation of selling cider” for the year 1896, and paid the $200 tax. They again applied for and were granted similar license for the following year, and paid again the sum of $200 for the tax. At the expiration of that year, the board of trustees of the town passed an -ordinance prohibiting the sale of cider within the town. Appellees have sued the town to recover, and did recover, in this action the $400, paid as above stated, upon the ground that the ordinances fixing the license tax were unconstitutional, and that the tax had been paid under a mistake of law and fact. Whether the imposition of the license tax was within the powers of the town trustees is the question.

There are two grounds upon which the town’s right to pass the ordinances is rested: (1) That of licensing occupations, a power expressly conferred by the Legislature; (2) that of regulating under the head of police of the “general welfare” clause, contained in subsection 7 of section 3704.

It is not necessary to decide the more troublesome question involved in tlie first ground stated, for we have reached, the conclusion that under the second head the exercise of the power by the board of trustees is clearly sustained. To what extent government may regulate or prohibit useful, or even harmless, callings, as an invasion of the citizen’s liberty in the “pursuit of happiness,” is not here involved. It is generally conceded now, and certainly in this State is it established, that it is a proper exercise of the police power, inherently incidental to government, to regulate by license or otherwise, or even to prohibit, those callings hurtful to the morals, the health, or the peace of society. Embraced in such is the making, vending, and use of intoxicants. Those liquors' coming within the accepted definitions of “spirituous, vinous, and malt” are most generally treated of in such legislation. But the very fact that the Legislature exercises and delegates to municipalities power, under the head of “police regulations,” to regulate the manner of, and exact a license for, the sale of such, is a sufficient basis for a similar exercise of the same power in like regulation of the sale of other intoxicants, whether of greater or less intoxicating effect; for, after all, it is the fact that the prescribed article is hurtful to health or peace or morals, and not the extent of its hurtful capacity, that justifies the governmental interference. So, if the fact is that a given article in its nature is objectionable on any of the grounds named, it is properly within the police power of the State, and of the municipality when so delegated, to regulate its use by exacting a license therefor, or even to prohibit it. Cider is “a strong drink,” a beverage; in no sense a necessity more than is beer or wine. It is as distinctly a beverage as either beer or wine. True, it is not as intoxicating, but its classification as a beverage is as distinct as either of the others, and not the less certain. The ordinance being valid, the license was properly exacted.

Judgment reversed, with directions to dismiss the petition.