Commonwealth v. Central Hotel Co.

Opinion by Judge Paynter

Affirming.

John J. O’Donnell, as Auditor's agent for Mason county, instituted this action in the name of the Commonwealth of Kentucky against the Central Hotel Company, a partnership, for two sums of $235 each, together with interest and a penalty of 20 per cent. The alleged right to recover is based upon the claim that the defendants owe the State a license tax, because the members of the firm kept a hotel and sold *848 by retail spirituous, vinous and malt liquors during the years of 1902 and 1903; therefore, under the provisions of Act March 29, 1902 (Acts 1902, page 281, c. 128), section 4224, Ky. Stats. 1903, being part of the act, renders the defendants liable for the sum sought to be recovered. It is provided in that section that, before engaging in any occupation or selling any article named in this sub-division of article 10 of this act, the persons desiring to do so shall procure a license and pay the tax thereon as follows: “To keep a tavern or hotel with privilege of selling by retail spirituous, vinous and malt liquors two hundred and thirty-five dollars.” The right to recover is based upon the claim that the defendants did not procure the license required by the statute to engage in the business of keeping the hotel and selling spirituous, vinous and malt liquors during the time mentioned. The action is sought to be maintained as in case of debt.

Taxes are levied and collected regardless of the will or consent of the taxpayer and for the purpose of raising a revenue. A license to sell liquor is for the purpose of regulating the traffic and incidentally to raise revenue. A tax is imposed as we have said,, regardless of the will or consent of the taxpayer. No one is required to procure a license to sell liquors,, but the State requires such a One to procure a license and pay the taxes before engaging in the business. No one is permitted to sell liquor without a license to do so. He assumes no liability for the license, unless he procures it from the authorities, authorized to grant it. He does not become obligated for the sum equivalent to the license tax provided by the statute, unless he voluntarily assumes it by applying for and receiving the license de *849 sired. It is said in Standard Oil Co. v. Commonwealth, 82 S. W., 1021 ,, 119 Ky., 75 , 26 Ky. Law Rep., 985 : “The popular understanding of the word ‘license’ undoubtedly is a permission to do some thing, which, without the license, would not be allowable. The object of the license is to confer a right that does not exist without the license.” It takes an order of the county court to grant a license and theq. to be issued by the county clerk. Unless this is done the party who sells liquor does so in violation of law and incurs the penalties denounced for such unlawful act. If the claim of appellant is correct a party could retail spirituous, vinous and malt liquors for several months in violation of the law, and could then procure a license to cover the period for which he was guilty of -the illegal acts, and thus protect himself from the punishment therefor. If the Commonwealth is entitled to recover the sums in question, it would seem that, upon payment of the money, the defendants should be immune against the imposition of fines for- the sale of liquors for the years of 1902 and 1903. If we were to lay down such a rule, the violators of the liquor laws in all counties in which the county court is authorized to grant a license to sell liquors could protect themselves against numerous indictments by simply paying the Commonwealth the sum equivalent to the license, had one been obtained. The appellees - are not indebted to the State for the license to keep a hotel with the privilege of selling liquors. They could not become so, unless they applied for and were granted a license for that purpose. The principle of the case of the City of Lexington v. Wilson, 118 Ky., 221 , 26 Ky. Law Rep., 81 , 80 S. W., 811 , does not apply to the facts of this case.

The judgment is affirmed.