American Railway Express Co. v. Commonwealth

Opinion of the Court by

Judge Clarke

Reversing.

The appellant was found guilty and fined in the Lawreneeburg police court upon each of five warrants charging it with “having committed the offense of engaging in an occupation for which a license is required without first procuring or paying for a license.” The five cases were by agreement heard together and without a jury, and while the defendant’s guilt and the imposition of a fine of $20.00 under each warrant is set out in separate paragraphs of a single judgment, but one recovery is adjudged thereon and that for $100.00, the aggregate of the five fines assessed, with costs in all five cases.

Upon a single appeal bond and supersedeas the defendant appealed to the circuit court, where however the five cases were separately docketed and upon' an agreed statement of facts, all were again submitted to the.court together and without a jury, resulting in another single judgment for $100.00 and costs in all five cases against defendant, following separate findings of guilt and the imposition of a fine of $20.00 in each of the five cases. Prom that judgment the company has prosecuted a single appeal to this -court.

That the parties with the consent of the trial court can not by combining several cases and having the aggregate amount of the several fines adjudged in one judgment, confer jurisdiction upon this court it does not possess as to any of the combined cases considered separately, was held and the reasons given therefor by this court in the recently decided case of Adams Express Co. v. Bradley, 179 Ky. 239. But by'section 3519 of the statutes, a part of the charter of cities of the fourth class to which Lawrenceburg belongs, it is provided the validity of an ordinance of such a city may be tested by appeal from the judgment of the police court to the circuit court, and thence to the Court of Appeals, “in cases where fines of twenty dollars or less are imposed or authorized,” a provision for testing the validity of an ordinance of a city of this class radically different from the method provided for testing the validity of ordinances of cities of the fifth and possibly other classes. Sevier v. City of Barbourville, 180 Ky. 553.

Since the fine imposed in each case was $20.00 and defendant’s only ^defense was the alleged invalidity of the city ordinance under which the warrants were issued and the fines imposed, it is. manifest that we have jurisdiction to review the judgment in each case, all five of which are here.

2. The ground upon which the invalidity of the ordinance is question is asserted, is that the defendant by reason of having paid to the city its franchise tax for the year 1918, is exempt from the imposition by the city for the same year of a license or occupational tax.

Appellant cites and reliesi upon the case of Cumberland Tel. & Tel. Co., &c. v. Hopkins, &c., 121 Ky. 850, where we held that the payment of a license fee could not be imposed by the city of Eminence upon either a railroad company or a telephone company, which had paid to the city for the same period a franchise tax under sections 4077-4091, inc., of Kentucky Statutes, although the city had express legislative authority so to do under section 3637 Kentucky Statutes, a part of the charter of cities of the fifth class, to which Eminence belonged.

This because the attempted license tax was a tax upon a privilege included in the property tax already imposed as a franchise tax, and therefore a tax upon the same property against the same owner for the same year, and double taxation in violation of the uniformity of taxation required by section 171 of the Constitution.

It was further held in that case that the power1 thus given “to impose and collect license fees upon all franchises is revenue provision” although coupled with other matters more properly coming under the head of police powers, and that the franchise tax paid by the corporations, although a property tax, was not distinct from the occupation tax the town under legislative authority was attempting to impose upon them.

The appellant here had paid to the city of Lawrenceburg exactly, the same kind of a franchise tax under sections 4077-4091, inc., of the statutes as the railroad company and telephones company had paid to the city of Eminence and the contested license tax was imposed under express and similar legislative authority in both instances, the authority being given to the cities, the one' of the fourth and the other of the fifth class, by sections 3490 and 3637, respectively, of the statutes.

There is therefore no point of difference in the two cases, if as a matter fact the privileges attempted to be licensed are the same. In the Eminence case the license was upon the railroad company’s- selling tickets and handling freight, and upon the telephone company’s maintaining an exchange in the city, and the doing of these things was essential to the exercise of the franchise within the city; but it is only the essential things a corporation musfido in order to exercise its franchise that are covered and taxed by the imposition of the franchise tax, as has been clearly pointed out by the court in Adams Express Co. v. Boldrick, 141 Ky. 111, and Cumberland Tel. & Tel. Co. v. Calhoun, 151 Ky. 241, in both of which the Eminence case, supra, was approved, but in each of which a license tax was held to be valid, although the complaining corporations had paid, as has appellant, a franchise tax under sections 4077-4091, inc., of the statutes, the distinction being, as explained in the Boldrick case, that although a city may not tax a corporation’s right to do business in the city after collecting from it a franchise tax, it may nevertheless impose a license fee upon such agencies or instrumentalities as are not essential or indispensable necessities in the conduct of its business, and which the company has elected to adopt as a means of facilitating or increasing its business.

It therefore becomes necessary to examine the ordinance involved here, to determine whether it imposes a license fee upon an essential agency or instrumentality employed by appellant in conducting its business in the city. If it does, this case is controlled by the Eminence case, supra, and the ordinance being evidently a revenue measure and not a police regulation, is invalid as to appellant.

It seems to be agreed by counsel, although there is nc copy of the ordinance in the record, and is indicated bj the warrants, that the ordinance imposes an annual license tax.that shall be paid by various persons and corporations for doing business in the city of Lawrenceburg and that the provision thereof applicable to appellant is as stated in brief for appellant:

“For each express company maintaining an office or agent in the city. $25.00.”

As the company could not conduct its business in the city without both an office and an agent, it is clear that both the agency and the instrumentality upon which the tax is imposed are essentials and indispensably necessary in conducting appellant’s business in the city, and this case comes squarely under the Eminence case as explained in the Boldrick case.

The Calhoun case, supra, is not applicable because it is conceded appellant was not required to procure a fran-' chise from the city under section 164 of the Constitution in order to entitle it to do business therein.

Wherefore, the judgment in each case is reversed and the cause remanded with directions to dismiss the warrants.