concurring.
In this case the court, after hearing oral arguments pursuant to a discretionary review, decided to vacate the grant of review because a majority of its members were satisfied to let the opinion of the Court of Appeals stand as the law. The subsequent filing of a dissenting opinion, however, occasions a further explanation of the majority view.
From beginning to end this controversy has been a battle of labels. What is the occupational tax? Is it an income tax or a license tax? If it is a local income tax, orthodoxy suggests that it is not permitted by Sec. 181 of the Constitution. If it is truly a license tax, in the classical sense, it cannot be applied to constitutional officers. If the tax is on the money it is really an income tax. If it is on the privilege of engaging in an occupation it is really a license tax. And so on. This type of reasoning can be carried on to the point of absurdity in just about any direction. See, *621for example, the classic fictional opinion of Regina v. Ojibway, reprinted by permission in Stevens v. City of Louisville, Ky., 511 S.W.2d 228, 280-231 (1974). See also Fuller, the Case of the Speluncean Explorers, 62 Harv.L.Rev. 616 (1948-49).
Fortunately, as Holmes put it, “The life of the law has not been logic: it has been experience.” Holmes, The Common Law (Boston: Little, Brown and Company, 1881), p. 1. This case presents a graphic illustration of that eternal truth. Judge Irving R. Kaufman, of the U.S. Court of Appeals for the Second Circuit, recently commented to the effect that judges should possess “capacity in both the analytic and synthetic modes of thought: analytic because much of our work involves the parsing of statutes, the sifting of records, and the reconciliation of case law; synthetic because the highest form of the judge’s craft involves the creation of an imaginative solution that sweeps away contradiction and ambiguity, advancing the law’s true purpose within the bounds of precedent and reason.” Irving R. Kaufman, “Charting a Judicial Pedigree,” The New York Times, Jan. 24, 1981. We think the opinion of the Court of Appeals achieves that purpose in this case.
About as close as we can come to the truth of the matter is that the occupational tax is a tax on income, and probably would be illegal except for the fact that this court in City of Louisville v. Sebree, 808 Ky. 420, 214 S.W.2d 248 (1948), saw fit to legalize it by the stratagem of calling it something else. Now, after more than 80 years in which the tax has become an indispensable mainstay not only to Louisville but to many other local governments, nobody in his right mind wants to overrule that case. Its purpose was to permit this kind of taxation on the general public, and it seems quite improbable that it ever occurred to the members of the court who joined in the Sebree opinion that the right to levy such a tax would apply to everyone but judges and other constitutional officers.
The majority of the members of the court today believe that the opinion of the Court of Appeals is fundamentally correct, though we do not feel it necessary to find an appropriate label for the tax in order to reach that conclusion. It is enough that whatever it may be called, it was declared valid in 1948, and, as the opinion of the Court of Appeals observed, it does not any more impinge upon the right or privilege of constitutional officers to carry out their functions than it does upon the privilege of anyone else to earn a living. We think it would be grossly unfair to the public in general for us to seize upon technical grounds and declare that we or any other public officers are exempt from it.
CLAYTON, STEPHENS and STEPHENSON, JJ., join in this concurring opinion.