
    CASE 80 — ACTION BY THE F. & A. COX COMPANY AGAINST THE FISCAL COURT OF OWEN COUNTY AND OTHERS TO ENJOIN THE COLLECTION OF A TAX.
    March 12, 1909.
    Fiscal Court Owen Co. &c. v. F. & A. Cox Co
    Appeal from Owen Circuit Court.
    J. W. Oammack, Judge.
    Prom the judgment defendants appeal
    Reversed in part and affirmed in part.
    1. Taxation — Remedies for Wrongful Enforcement — Injunction.— Injunction lies to restrain the collection of an illegal tax.
    2. Municipal Corporations — Ordinances—Partial Invalidity — Effect. —An ordinance, by-law, or order imposing license fees may be valid in part and invalid in part.
    3. Licenses — Fees — Reasonableness — Judicial Review. — The rule that the reasonableness of a license fee imposed as a tax is a question for the taxing power, and that the courts will not interfere with its discretion, is subject to the limitation that the tax shall not amount to a prohibition of any useful or legitimate occupation.
    4. Licenses — Fees—‘Reasonableness.—A license tax of $200 on each four-horse wagon operated as a business for hauling freight for pay was invalid as prohibitive; it appearing that the owner of such wagon, after paying the expense of running it, and taking into consideration the depreciation in the value of the teams and wagon, could make little, if anything, more than the amount of the tax.
    5. Licenses' — Fees—Discrimination.—A license tax requiring the ■owner of a four-horse wagon to pay nearly three times as much as the owner of a three-horse wagon was void for unjust discrimination.
    6. Taxation — Recovery of Tax Paid — 'Persons Liable. — No action can be maintained by a taxpayer against a county for taxes wrongfully collected, whether the taxes have been paid out by the county or not, though, where the taxes are in the hands of the collecting or disbursing officers, a direct action may be brought against them.
    7. Taxation — Recovery of Tax Paid — Actions—Judgment.—Where, in an action against the members of the fiscal court, and the county treasurer to recover a tax paid by plaintiff under pro-, ■test, it appeared that the money was in the hands of the county ■treasurer, a judgment against him was proper, though a judgment against the county and the members of the fiscal court was improper.
    J. G-. VALLINDINGHAM and J. W. DOUGLAS for appellant.
    The question in this case is: Whether or not a livers vehicle used in carrying passengers or freight for pay, is a common carrier and subject to a license fee under the orders of the Fiscal Court of the county in which it is used as such carrier. We submit:
    1. That it is a common carrier and hauls practically all the produce and merchandise between the towns of Owenton and Sparta.
    2. That said license fees are unreasonable, excessive, oppressive and prohibitive.
    3. That the hauling of such freight was essential to the public and necessary to the appellee.
    4. That appellee entered into contracts to haul said tobacco (3500) hogsheads, and to do so had to provide expensive wagons for which it invested large sums.
    5. That it was making a good profit on said1 business.
    • 6. That the license was not levied in good faith, but was the result of conspiracy and collusion.
    7. That if the collection of the license is ¡allowed it will greatly reduce the value of its. transfer property, and destroy the value of its franchise.
    8. That the American Tobacco Company had at Owenton a large purchase of tobacco which had to be hauled to the railroad at Sparta or to the Kentucky river.
    9. That section 4325-A Ky. Statutes, is in violation of the Constitution of Kentucky and' void.
    10. That the Fiscal Court did not make said order at a regular , session of the court.
    W. B. MOODY and H. G. BOTTS for appellee.
    POINTS AND AUTHORITIES CITED.
    1. Owen' county did not in fact have free turnpikes: nor its Fiscal Court authority to make said order. (Kentucky Statutes, secs. 4352-A-3748-B.)
    2. License fees a tax on occupation. The order discriminates between the persons on whom the tax is imposed, is partial, unjust, and void. (City of Lexington v. Wood, 09 Ky. 347; Wilson v. City, 105 Ky. 767; Evers v. City, 27 Ky. 483; Livingston v. City, &c., 80 Ky. 660; 1 Dillon’s Municipal Corporation, 322; Cooley on Taxation.)
    3. Municipal by-laws must- be reasonable. The taxes imposed by said order are unreasonable, exorbitant, oppressive, prohibitive, confiscatory, void. (Simrall & Co. v. City of Covington, 90 Ky. 449; Livingston v. City of Paducah-, 80 Ky. 661; Cooley on Constitutional Limitations, Secs. 200, 201, 501, 502; American and English Encyclopedia of Law, vol. 13, p. 532.)
    4. By-law may be valid in part and invalid in part. (Cooley on ■Constitutional Limitations, sec. 177; Levi v. City of Louisville, 97 Ky. 394; Whaley v. Commonwealth, 23 Ky. Law Rep. 1294.)
    5. The taxes paid by .appellee were collected over its protest, paid under compulsion, and were properly adjudged back to it. (L. & N. Railroad Co. v. Hopkins County, 87 Ky. 614; L. & N. Railroad Co. v. Anderson, &c., 79 Ky. 384; L. & N. Railroad Co. v. Marion County, 89 Ky. 539.)
    6. Injunction will lie to restrain the collection of an illegal tax. (Baldwin v. Shine, 84 Ky. 510; Norman, &c. v. Watson, &c., 85 Ky. ■557; Gates v. Barnett, 79 Ky. 295.)
   Opinion of the Court by

Wm Rogers Clay, Commissioner

Affirming.

The plaintiff F. & A. Fox Company, a corporation, instituted this action against the members of tbe fiscal court of Owen county and tbe county treasurer to enjoin the collection of a license tax, $200 imposed upon four-borse wagons hauling freight for hire, and to recover tbe sum of $400 claimed to have been paid under protest as license fees on two four-borse wagon®. Tbe chancellor granted tbe injunction and ■also gave judgment against Owen county, tbe members of the fiscal court, and tbe county treasurer for tbe $400. From that judgment Owen county, the members of tbe fiscal court, and tbe county treasurer prosecute this appeal.

By section 181 of the Constitution, authority is .given to tbe Gbneral Assembly by general laws to -delegate tbe power to counties to impose and collect license fees on stock used for breeding purposes and ■on franchises, trades, occupations, and professions. Pursuant to tbe above authority, the General Assembly enacted section 4325a, Ky. St. (Russell’s St. section 5471), which is as follows: “That in all ■counties having free turnpikes tbe fiscal court of such counties may place license on livery vehicles or any other vehicles' that carry passengers, or freight for pay.” In the year 1906 the fiscal court of Owen county passed; an order imposing license fees as follows :

For each one-horse livery rig or buggy......... $ 3

For each two-horse livery rig or buggy......... 6.

For each one-horse vehicle ran or operated to carry passengers or baggage for pay....... lb

For each two-horse vehicle run or operated to carry passengers or baggage for pay......... 40

For each one-horse huckster wagon operated for pay . ..................................... 10

For each two-horse huckster wagon operated-for pay.................................... 2b

For each two-horse huckster wagon operated as a business for hauling freight for pay......... 40

For each three-horse wagon operated as a business for hauling freight for pay............ 75

For each four-horse wagon operated as a business for hauling freight for pay............ 30

The order provided that the license fees so collected should go to and become a part of the road and bridge fund.

It appears from the record1 that plaintiff is engaged m transporting passengers and freight for hire between the city of Owenton and the town of Sparta, in Gallatin county, a station on the Louisville & Nashville Railroad. For this purpose its employs, several four-horse wagons besides many other wagons used for the samé purpose. The license order is assailed on the ground that it unjustly discriminates between one, two, and three horse wagons and four-horse wagons, and on the further ground that the license fee imposed on the four-horse wagons is oppressive and prohibitive. The law is well settled that an injunction will lie to restrain the collection of an illegal tax. Norman v. Boaz, 85 Ky. 557, 4 S. W. 316; Baldwin v. Shine, 84 Ky. 510, 2 S. W. 164; Gates v. Barrett, 79 Ky. 205. An ordinance, by law, or order, imposing license fees, may be valid in part and invalid in part. Cooley on Constitutional Limitations, section 177; Levi v. City of Louisville, 97 Ky. 304, 30 S. W. 793, 28 L. R. A. 480; Whaley v. Commonwealth, 110 Ky. 154, 61 S. W. 35. From the proof in this case it would appear that the fiscal court imposed the license fee of $200 on four-horse vehicles on the idea that if free turnpikes were not maintained by the county the owners of such vehicles would be required to pay more than that amount by way of tolls. The defendants introduced proof to the ■effect that in the opinion of many citizens of Owen county the license fee imposed was altogether reasonable considering the wear and tear on the roads ■occasioned by the use of four-horse wagons. By the •decided weight of the testimony of those who knew, it appears that the owner of a four-horse wagon, after paying the expense of running it and taking into ■consideration the depreciation in the value of the teams and the wagon itself, could make but little, if ■anything, more than the amount of the license tax imposed!.

It may be conceded that ordinarily the reasonableness of .a license fee imposed’ as a tax is a question for the taxing power, and the courts will not interfere with its discretion. Hall v. Commonwealth, 101 Ky. 382, 41 S. W. 2. This rule we think, however, is, subject to the limitation that the tax imposed shall, not amount to a prohibition of any useful or legitimate occupation. In re Quong Woo (C. C.) 13 Fed. 229; Mankato v. Fowler, 32 Minn. 364, 20 N. W. 361; City of Ottumwa v. Zekind, 95 Iowa, 622, 64 N. W., 646, 29 L. R. A. 734, 58 Am. St. Rep. 447; Van Slant v. Harlem Stage Co., 59 Md. 330; Brooks v. Morgan, 86 Mich. 576, 49 N. W. 633, 24 Am. St. Rep. 137; Caldwell v. City of Lincoln, 19 Neb. 569, 27 N. W. 647. While there are numerous authorities to the contrary,, it will be found that the license fee involved in time oases was not prohibitive, and the courts simply declared the general rule that the reasonableness of the-tax was a matter within the discretion of the taxing; power. We can hardly believe that the same courts, that announced that doctrine would hold to be valid an ordinance or statute imposing upon every physician and attorney at law an annual license tax of $10,000, or imposing upon every merchant a license-of 5,000, or upon every washer-woman a tax of $1,000' per year. If a prohibitive license tax could be imposed' upon the professions and occupations mentioned above, the same character of tax could be-imposed upon every profession and occupation. It may be answered that no legislative or municipal, body would ever do this.' The question, however, is not what it would do, but what it might do-. The-question is one of power. A powerful organization, of men engaged in different pursuits might prevent, the imposition of a prohibitive license tax upon their ' •respective callings or occupations, but what is to become of the man without political power, whose. means of livelihood are taken away by the imposition of a prohibitive tax? ' Shall we still say that the amount of the tax is within the discretion of the taxing power, or shall we say that among the inalienable and inherent rights guaranteed by our Constitution to every law-abiding citizen is the right to live and enjoy life and the right to acquire property, and that these rights necessarily carry with them the right to gain a livelihood and acqnire property by following any nsefnl or legitimate occupation, tbe pursuit of which is not injurious to the public weal? In our opinion there is hut one answer to this question: If yon deprive a man of the means of livelihood, yon necessarily deprive Mm of the right to live and enjoy his life. Great as is the taxing power, it can never rise superior to the inalienable rights guaranteed’ by onr Constitution. As the evidence in this case shows that the license tax in question is prohibitive, we bave no hesitancy in declaring it invalid. Hager, Auditor, v. Walker, 107 S. W. 254, 32 Ky. Law Rep. 748, 15 L. R. A. (N. S.) 195.

Furthermore, the order itself shows that the owner of a four-horse-wagon is required to pay three times as much tax as the man who operate® a three-horse wagon, when there is nothing in the character of the wagons to justify such inequality It may he conceded that a reasonable classification for the purpose of license taxes may always he made. Classification based1 upon the character of the vehicles and the number of horses used in connection with them may be proper (Smith v. City of Louisville, 9 Ky. Law Rep. 779), but the classification sought to be made in tMs case is manifestly unequal and uureasonable. It cannot be said- to be reasonable because it bears alike upon all owners of four-horse wagons. The class of persons whose occupations are taxed are those who run and operate vehicles for hire. The taxing power may subdivide this class, but it cannot unjustly discriminate between the subdivisions so made. As the order in question unjustly discriminates between the owners of three-horse vehicles and the owners of four-horse wagons, it follows that the license fee of $200, imposed upon four-horse wagons, is therefore void. Livingston v. City of Paducah, 80 Ky. 656; 1 Dillon’s Municipal Corporations, section 323; Simrall & Co. v. City of Covington, 90 Ky. 444, 14 S. W. 369, 9 L. R. A. 556, 29 Am. St. Rep. 398; Cooley on Taxation, section 127; Hager, Auditor, v. Walker, 107 S. W. 254, 32 Ky. Law Rep. 748, 15 L. R. A. (N. S.) 195.

It appears that judgment was given in favor of plaintiff against Owen county for the sum. of $400, being the amount which plaintiff paid as license tax on two four-horse wagons The law is well settled that no action can be maintained by a taxpayer against a county for taxes wrongfully collected, it matters not whether the taxes have been paid out by the county or not. First National Bank v. County of Christian, 106 S. W. 831, 32 Ky. Law Rep. 634; Commonwealth v. Boske, 124 Ky. 468, 99 S. W. 316, 30 K. L. R. 400. On the other hand, it has been held that, where taxes have been wrongfully collected by county officials, and are in the hands of the collecting or distributing officers, a direct action may be brought against the persons holding the tax. Whaley v. Commonwealth, 110 Ky. 154, 61 S. W. 35; Blair v. Carlisle & Jackson Turnpike Co., 4 Bush, 157; Commonwealth v. Stone, 114 Ky. 511, 71 S. W. 428, 24 K. L. R. 1297. It does not appear from the record in this case that the members of the fiscal court held the tax. It does appear, however, that the sum of $400, paid by plaintiff at the time of the institution of this suit, was in the hands of the county treasurer. We are of opinion therefore that: Judgment against Owen county and the members of the fiscal court was improper; judgment against the county treasurer was proper.

For the reasons given, that portion of the judgment enjoining the collection of the license tax is affirmed; that portion permitting plaintiff to recover the $400 of Owen county, the members of the fiscal court, and the county treasurer, is reversed as to Owen county and the members of the fiscal court., and affirmed as to the county treasurer.  