Request By:
Mr. W. F. Mercer
Regional Supervisor
Unemployment Insurance
Department of Human Resources
Box 620
Whitesburg, Kentucky 41858
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of January 12 in which you raise the question as to whether or not a field auditor for the Department of Human Resources who is permanently assigned to your Corbin, Kentucky, office, and who pays a city automobile license fee to the city of Corbin in connection with the use of his automobile within the city, would be subject to a similar license fee by cities in surrounding counties where he occasionally visits in connection with his work.
You cite the following example:
". . . I will cite one town in particular that is insisting that he purchase a city sticker. I will list the partial days he worked in the city of Williamsburg during the year 1978. In January no days, February no days, March-2 days, April-1 day, May-1 day, June-1 day, July-2 days, August-1 day, September-1 day, October-2 days, November-no days, and in December-1 day. As I previously stated he did not work a full day in the city in any of these days."
Based on the facts presented and assuming they apply to the other cities as well, we do not believe that he would legally be required to purchase an automobile license sticker from said cities, except of course the city of Corbin.
It is well settled in this state that every city has the power to levy a license fee not only on resident automobiles but also nonresident automobiles where such are operated daily within the city. This authority is based upon the ground that the license is not a property tax but one imposed by virtue of the city's police power for the use of the city streets. See
Commonwealth v. Kelly, 229 Ky. 722, 17 S.W.2d 1017 (1929);
Johnson v. City of Paducah, 285 Ky. 294, 147 S.W.2d 721 (1941);
City of Mayfield v. Carter Hardware Co., 191 Ky. 364, 230 S.W. 298 (1921),
Watson v. City of Paducah 312 Ky. 680, 229 S.W.2d 453 (1950); and
City of Georgetown v. Morrison, Ky., 362 S.W.2d 289 (1962).
You will note that the right to levy a automobile license fee is based on the regular use of the streets by the individual doing business within the city.
Referring first to the case of
Johnson v. City of Paducah, 285 Ky. 294, 147 S.W.2d 721 (1941), we quote the following:
". . . A license tax may be imposed on trucks of a nonresident of a city regularly operating trucks in the city although his sole place of business is in another city.
Sistrunk & Co. v. City of Paris, 205 Ky. 835, 266 S.W. 656. The basis of the decision was that the nonresident was not merely an occasional user of the streets but was manifestly carrying on a business in the city by virtue of his making regular trips with his trucks within the city. (Emphasis added).
Next referring to the case of
Leet Furniture Company v. City of Richomond, Ky. 357 S.W.2d 329 (1962), the court declared that said company's trucks were not subject to such a license fee where it made deliveries only a few times each year. The court in so holding referred to the case of
City of Mayfield v. Reed, 278 Ky. 5, 127 S.W.2d 847 (1939), and we quote as follows:
". . . The Merit Clothing Company, a clothing manufacturer in the City of Mayfield, for some years had its books audited semiannually. The company engaged a firm of auditors whose place of business was in St. Louis, Missouri, to make an audit of a six-month period. Auditors were sent to Mayfield where they were engaged for a number of days in the work for which they were hired. The principal question on appeal was whether they were engaged in an occupation or profession in the city within the meaning of the ordinance. The court held that such an isolated transaction under specific employment was not carrying on or conducting business or calling within the scope and meaning of the ordinance.
"In
Karnes v. City of Benton, 258 Ky. 425, 80 S.W.2d 558, the question was raised as to whether a farmer who resided on a farm outside the corporate limits of Benton and who butchered hogs and sold meat occasionally in the city was subject to the terms of an ordinance which fixed a license tax for businesses, trades, occupations or professions, and defined a butcher shop or meat dealer as a business or indivicual which sold meats in smaller pieces than a quarter of a carcass. Karnes sold such smaller quantities. The court cited with approval the following language:
'As a general rule, the performance of a single act, or even a number of isolated acts, pertaining to a particular business, will not be considered as engaging in or carrying on such business within the meaning of a law imposing a license tax; but it may be so considered where an intent to engage in the business is clearly apparent.'"
As can be seen from the above cited case law, occasional or isolated visits to a city by an individual, such as your field auditor, who, in addition, is there on state business only, would not in our opinion subject him to a city license tax.