CULLEN, Commissioner. We have before us the question of the validity of an ordinance of the City of Lexington, imposing an occupational license tax upon the privilege of engaging in a business or profession or carrying on an occupation within the city. With respect to a business or profession, the tax is one percent of the net profits from activities conducted within the city. With respect to occupations, the tax is one percent of the compensation earned for work done or services performed within the city.
The ordinance is substantially the same as the ordinance of the City of Louisville that was upheld in City of Louisville v. Sebree, 308 Ky. 420, 214 S.W.2d 248. However, a number of alleged grounds of invalidity are raised here that were not raised in the Louisville case, and it is contended that Lexington, being a second-class city, does not have the same powers as Louisville, which is a first-class city.
The action questioning the validity of the Lexington ordinance was commenced by the director of finance of the city, as plaintiff, against the city as defendant. The petition alleged that a controversy existed between the director of finance and other officials of the city as to whether:
1. The city had authority under the Constitution and statutes to pass the ordinance.
2. The ordinance was enacted with proper formalities.
3. The ordinance imposed double taxation, for the year 1952, upon persons who had paid an annual license tax for the year 1952 under a previous ordinance.
4. The revenues of the ordinance must be used as provided in KRS 91.200.
5. The ordinance is subject to referendum.
The city filed an answer, asserting the validity of the ordinance in all respects, denying the applicability of KRS 91.200, and alleging that the ordinance was not subject to referendum.
After the city's answer was filed, one Woodford Kohler, an employed barber, was permitted to intervene, in his own behalf and in behalf of any and all persons who would be subject to pay the tax. Kohler filed an intervening petition, setting forth numerous alleged grounds of invalidity of the ordinance, and also alleging that petitions for a referendum on the ordinance had been duly filed, but had been rejected by the city commissioners. He prayed either that the ordinance be declared invalid, or that the city commissioners be required to submit the ordinance to a referendum. The city filed an answer to the intervening petition, consisting of a general denial.
The case was decided in the lower court upon the pleadings, without taking proof, although Kohler expressed a desire, through various motions, to introduce proof. The judgment upheld the validity of the ordinance, and held that the ordinance was not subject to referendum. Kohler has appealed, asserting 20 grounds of error.
The first five grounds of error have to do with alleged premature submission and decision of the case, and the refusal of the court to require the taking of depositions and the production of documentary evidence. It appears that the court announced an oral opinion in the case before the case was placed on the trial docket. However, the case then was docketed and judgment was not entered until the statutory time had elapsed. KRS 451.040.
The appellant does not show any prejudice resulting from the alleged premature submission and decision of the case, except as it affected his efforts to require the introduction of evidence. If he was not entitled to introduce evidence, then all of the first five grounds of error must fail.
It is the general rule that courts will not consider evidence aliunde to show the invalidity of a statute. In fact, many courts have said that they cannot consider evidence on such a question. 11 Am.Jur., Constitutional Law, sec. 145, p. 825. The question of constitutionality of a statute ordinarily is considered to be a question of law, in passing upon which the ...