Adams Express Co. v. City of Lexington

JUDGE HOLT delivered the opinion of the court. The Legislature, by the act of March 2, 1860 (Myers’ Sup., page 228), required all foreign express-companies to obtain annually a license from the State Auditor, as a condition to their right to do business in' this State. By another of February 20, 1864, oil express companies doing business in Kentucky were required to-fl.nmnally report to the Auditor a statement of their-business, and pay into the treasury a tax of six per cent, upon the net profits arising from it. (Myers’ Sup., page 480.) On March 2, 1870, an act amendatory of the one last named was passed, by which foreign express companies were required to pay for the privilege of doing business in this State a tax of five hundred dollars, if the line was one hundred miles or less in length, and one thousand dollars if over; and it was-further provided, that “any such company which' [659] has taken, or may take out the license provided for in said act of March 2, 1860, and shall pay the annual tax provided for in this act, shall not be: required by any county, town, city or other corporation or local jurisdiction in this State to takeout or obtain any other or additional license, or to> pay any other or additional tax or sum of money for the' right or privilege of conducting its business-in or through such county, town, city, corporation, or other local jurisdiction.” (Acts of 1869-70, volume 1, page 33.) The charter of the city of Lexington, approved April 19, 18S2, provides: “Sec. 16. That the mayor and board of councilmen shall have the right to tax and license, and shall by ordinance provide for the licenses for ■ the-following businesses, professions and employments,, with adequate penalties for doing business without; the required license: * * * for each intelligence office, claim agent, commercial agent, street broker, pawnbroker, express company, * * * not less than ten dollars nor more than two hundred and fifty dollars.” (Acts of 1881-2, volume 2, page 617.) The only question to be considered is, whether the above charter provision, authorizing the city to require “each” express company to obtain a license, repeals the exemption from such taxation given by the act of March 2, 1870, supra, to foreign express companies as to the city of Lexington. Clearly it does not do so expressly. The one is not an amendment of the other, and can not be [660] held to annul the exemption save by implication. Such repeals are not favored. One statute will not be regarded as repealing another by construction, unless they are absolutely irreconcilable, or there is sufficient reason to conclude that the Legislature so intended; and such a construction will not be given to general words as to so operate as to a particular statute, unless the words can not otherwise have their proper operation.' The act of March 2, 1870, indicates a general policy upon the part of the State to exempt foreign express •companies from local taxation by the payment of the State tax; and it is unreasonable to suppose that the Legislature intended to reverse this policy as to and for the benefit of one particular local jurisdiction. If it had seen proper to say that all towns and cities should have the power by ordinance to tax •and license “each” express company, the legislative intent would have been plain. It is true that the word “each” denotes every one of the two or more comprising the whole; but in this instance it must be regarded as indicating that the license fee for each of the companies intended to be included in the provision of the charter, and which were not exempted from city taxation by the then existing law, should be so much. It includes the whole of the class which were not then exempt from such taxation. Such a construction leaves both provisions in force, and authorizes the city to tax and license all express companies, save foreign ones.'. If this be not the correct one, then it follows that the Legis [661] lature intended to reverse the policy announced by the act of March 2, 1870, in favor of one city, and. permit it to impose a tax upon the company equal to one-fourth of that paid to the State; and this,, too, without even a reference to the act, a portion of which it is claimed was repealed as to one municipality. In the case of the E. & P. R. R. Co. v. Trustees of Elizabethtown, 12 Bush, 233, the 28th section of the charter of- the railroad company provided : “Said Elizabethtown and Paducah Railroad Company shall be exempt from taxation till completed; and that it shall never be taxed at a valuation beyond the rate at which said (other) roads are now taxed by law.” (Acts 1867-'8, page 629.) The amended charter of Elizabethtown, approved February 17, 1871, authorized it to levy and collect “a tax on railroad companies for all property owned ' by said companies in the limits of Elizabethtown, except rolling stock, such as freight and passenger cars, to be levied at the same rate on the value as may be assessed upon the property of private individuals.” This language apparently included all the railroads in the town, and authorized it to at once proceed to levy the tax. It was, however, held by this court that the charter provision did not repeal the exemption in favor of the E. & P. Railroad, and the opin-, ion says: “If by fair and legitimate interpretation two acts of the Legislature that are seemingly incompatible or contradictory may be enforced, they will both be [662] upheld, and the one will not be regarded as repealing the other by construction, unless there, is reason to conclude that the Legislature intended that the subsequent act should control the former. In this, case the fair inference is that in amending the charter of Elizabethtown the Legislature did not have the special express exemption from taxation for a limited period of time enjoyed by the appellant in view at all; and it is impossible to suppose that the intention was to override that exemption for the benefit of the municipal government.” The inference is irresistible that the Legislature did not, by the charter provision now in question, intend to repeal, as to a single municipality, the exemption in favor of foreign express companies then existing generally as to the towns and cities of this Commonwealth, and that when it enacted the charter provision under consideration it did not have in view the act of March 2, 1870. Judgment reversed, with directions to overrule the demurrer to the petition, and for further proceedings in conformity to this opinion.