City of Covington v. Herzog

Opinion op the court by CHIEF JUSTICE BURNAM Reversing. The appellant, the city of Covington, appeals from a judgment of the Kenton Circuit Court overruling its general demurrer to the petition of appellee, and the entry of a judgment prohibiting the city from prosecuting appellee for con-, ducting a real estate business without license as required by ordinance. The petition of appellee alleges “that he has for many years been employed as the agent of other persons in buying, selling, and renting real estate, and in buying and selling mortgage and other real estate lien notes;” that the city of Covington on the 25th of April, 1901, passed an ordinance relating to the licensing of various lines of business; that section á of the ordinance provides: “Real Estate. Each [729] and every person or firm, engaged in the capacity of or following tSie business of real estate agents shall pay a license annually of $25.00. By real estate agent for the purpose of this section is meant each and every person or firop, who buys or sells real estate, either at' auction or private sale, for a commission; or who loans money on real estate, rents houses and collects rents therefrom, or sells mortgage or lien notes for commission shall be considered as engaged in the real estate business, and as such must pay the license as herein prescribed.” That this ordinance and section 3058 of the Kentucky Statutes of 1899, which is a provision of charters of cities of the second class, were both unconstitutional and void in so far as they authorize the levy of a license tax on real estate agents, because they subdivide the' business into six distinct occupations, • namely, “real estate agents and brokers,” “financial agents and brokers,” “house rental agents,” “loan and brokerage companies;” that under the statute and ordinance the city had the right to levy a license tax on persons pursuing any. one of these various occupations, which were in reality the same business; and that the license tax of $25.00 was oppressive, unequal, unjust, and disproportionate to those borne by tradesmen and professional men generally within the city of Covington and disproportionate and unequal to the license or occupation taxes levied generally by the ordinance. Section 171 of the Constitution provides that “all property, whether owned by natural persons or corporations, shall be taxed in proportion to its value, unless exempted by, the Constitution; and all corporate property shall pay the same rate of taxation paid by individual property. Nothing in this Constitution shall be construed to prevent the General Assembly from providing for taxation based on income, license, or franchises.” Section 181 of the Constitution pro [730] vides that “the General Assembly may, by general laws only, provide for the payment of license fees on franchises, stock used for breeding purposes, the various trades, occupations, and professions, or a special or excise tax; and may, by genei'al laws, delegate the power to counties, towns, cities and other municipal corporations to impose and collect license fees on stock used for breeding purposes, on franchises, trades, occupations and professions.” In. pursuance to these provisions of the Constitution, the'General Assembly, in the charter of cities of the second class, provides that the general council of such a city shall have power by ordinance to tax and regulate every known kind of occupation and pursuit, including auctioneers, real estate agents and brokers, financial agents and brokers, rental agents, etc., and the ordinance in this case conforms substantially to the provisions of section 3058 of the Kentudky Statutes of 1899. While appellee alleges that the license tax of $25.00 is unequal, unjust, and disproportionate to that levied upon other similar occupations, no facts are cited to support the averment, and tiie allegation, as it stands, is nothing more than a conclusion of law. While there is a general similarity in each of the various occupations grouped in the ordinance under the head of dealers in real estate, and the same person might well engage in all of them at the same time, yet they are by no means identical, and either of them might furnish sufficient employment to occupy the entire time of a person, firm, or corporation. We see no ground for complaint on the part of appellee because the ordinance has grouped all of these separate occupations under a single head, and levied a single tax, as though they only constitute one occupation!. If the city had seen fit to separate each of these occupations into separate heads, and required the payment of a license tax for the prosecution of each one of them, appellant would have had better grounds for,complaint. We [731] have had similar contentions before us as to the constitutionality of this provision of appellant’s charter, which also appears in the charters of cities of the first, third, and fourth classes, in the cases of Commonwealth v. Laundry Companies, 105 Ky., 259, 20 R., 1172, 49 S. W., 26; City of Covington v. Woods, 98 Ky., 344, 17 R., 927, 33 S. W., 84; and Crosdale v. City of Cynthiana, 21 R., 36, 50 S. W., 977. In all of these cases the constitutionality of the statute and the ordinances pursuant thereto were upheld. The mere avernient of the petition that the tax is oppressive and unequal is not sufficient averment of facts to'support a cause of action. For reasons indicated, the judgment is reversed, and the cause remanded, with instructions to sustain the demurrer filed by the city, and for other proceedings consistent herewith. Petition £or rehearing by appellee overruled.