Opinion
November 21, 1952.
Appeal from the Circuit Court, Franklin County, William B. Ardery, J.
Frank M. Dailey, Frankfort, for appellant.
William A. Young, Frankfort, for appellee.
The City council of Frankfort has enacted an ordinance, Section 1 of which provides:
"That all restaurants, soft drink stands and like places of business dealing in soft drinks and bottle goods, exclusive of gasoline filling stations, lying outside the business district of the City, as herein defined, shall be required to close such business establishments between the hours of 12:00 o'clock midnight and 5:00 o'clock A. M."
The appellees, who operate a restaurant outside the business district, question the constitutionality of the ordinance. The lower court held that it "Contains an unreasonable and unwarranted discrimination against the plaintiffs and all other persons similarly situated by reason of the exclusion from the operation and effect of said ordinance of gasoline filling stations * * *, and that the same constitutes a denial to the plaintiffs of the equal protection of the laws guaranteed to them by Section 1 of the 14th Amendment to the Constitution of the United States of America." We agree.
It is common knowledge that many filling stations sell soft drinks, and many of them sell some form of food. Under this ordinance a restaurant owner who operates a filling station in connection with his restaurant would be permitted to remain open until 2 o'clock, while his competitor across the street, who has no filling station, would be required to close at 12. Manifestly, the ordinance is discriminatory.
For a discussion of ordinances of a similar nature which have been condemned, see Tolliver v. Blizzard, 143 Ky. 773, 137 S.W. 509, 34 L.R.A., N.S., 890; City of Louisville Y. Kuhn, 284 Ky. 684, 145 S.W.2d 851; City of Harlan v. Scott, 290 Ky. 585, 162 S.W.2d 8; City of Jackson v. Murray-Reed-Slone Co., 297 Ky. 1, 178 S.W.2d 847.
Other questions relating to the constitutionality of the ordinance are reserved.
The judgment is affirmed.