Stevens v. City of Louisville

121 S.W. 977, 135 Ky. 24, 1909 Ky. LEXIS 262

• Court: Court of Appeals of Kentucky
• Decided: October 20, 1909
• Status: Published

Opinion

Opinion of the Court by

Judge Hobson-

— Affirming.

The license ordinance of the city of Lonisville among other things contains the following:

“Section 1. That hereafter the following licenses shall be paid into the sinking fnnd of the city of Lonisville for the purposes* of the sinking fnnd, for doing the business, following the callings, occupations and professions, or using or holding, or exhibiting the articles hereinafter named in the city of Louisville in addition to the ad valorem taxes heretofore levied cr hereafter to be levied on any species of property in the city of Lonisville.”

“Sec. 66. Every person, firm, or corporation whose business is to take or receive by way of pledge, pawn or exchange any goods, wares or merchandise, or any personal property whatever, as security for the payment of money lent thereon, other than banks or trust companies, shall be deemed a'pawn broker and shall pay a license of three hundred and fifty dollars per year. ’ ’

" “Sec. 72. Every person, firm or corporation who sells pistols at retail shall pay a license of one hundred dollars per year.”

“Sec. 106. Any person, firm or corporation violating any of the provisions of this ordinance, where a different fine has not been provided, shall be fined not less than five dollars nor more than one hundred dollars for each offense. Each day the violation is continued shall constitute a separate offense.”

Appellants are pawnbrokers in the city of Louisville, and took out license as such; but they did not take out license to sell pistols at retail. The city was threatening to institute prosecutions against them, and they thereupon brought this suit the purpose of which was to obtain an injunction or prohibition restraining the city from prosecuting them for selling pistols at retail without license. The-circuit court dismissed their petition, and they appeal.

The only question we deem it necessary to consider on the appeal is the validity of section 72, as to pawnbrokers. It is insisted for appellants that as they, have taken out license as pawnbrokers to require them to take out a license to sell pistols at retail will be to tax them twice on their business, and the case of Newport v. Fitzer (Ky.) 115 S. W. 742, is relied on. In that case there was a city ordinance which required the payment of $20 for a license for peddling when carried on with a wagon, and $10 if carried on on foot. There was also another ordinance requiring the payment of $3 by the owner of a vehicle for the right to use it upon the streets. It was held that, as the $20 was paid for the privilege of peddling with a wagon, this necessarily carried with it the right to use the wagon on the streets, as there could be no peddling with a wagon unless the wagon was run on the streets, and that, therefore, it must be presumed that the $3 tax was levied on vehicles not otherwise licensed. That is not this case. The business of a pawnbroker may be carried on without selling pistols at retail. Sections 66 and 72 are to be read together. The license under section 66 authorizes the pawnbroker to carry on the business, and to deal in all those things for which no special license is required But, if a pawnbroker wishes to deal in those things which can only be sold at retail under a special license, then, in order to sell at retail these things, he must take out the license required for that business. To hold otherwise would be to say that a pawnbroker who had taken out a license as such might carry on under this license the business of retailing other goods of any kind for the sale of which a special license is required by the ordinance of the city. Such a construction of the ordinance would defeat the manifest purpose of the council in requiring a special license'for the retailing of certain things, and it would enable a pawnbroker under one license to carry on any kind of retail business he pleased without the payment of a special license tax. To illustrate: If he may sell pistols without paying the special tax, he may upon the same principle sell playing cards, whisky, cigars, tobacco, soft drinks, and all other things for which a special license may be required.

Judgment affirmed.