I now feel like writing a dissenting opinion.
Sometimes, dissenting opinions make ineffectual yet brave recordations and thus serve to bear torches of truth that time itself may not extinguish. For example, Caleb and Joshua made their dissenting opinion relative to the "Promised Land." The majority report, concurred in by ten men, was, of course, the authentic opinion of the organized body, but the dissenting opinion of Caleb and Joshua was a torch of truth that time never did extinguish. My present desire is to hold up that which I personally believe to be a torch of truth in. this case.
When the subject was under our original consideration, I was not in full accord with the majority opinion. even though I recorded no contrary vote on that occasion.
The proponents of the validity of this ordinance say, in general substance, that it constitutes an occupational tax levied on the privilege of doing business, such tax being merely measured by the yardstick of income.
However, aside from the question of whether it is an income tax, it appears to me that it is not a valid occupational tax way down in the woven fabric of its fundamentals. It occurs to me that there must be a vast difference between "doing business" on the one hand, and just earning a living in the "sweat of the face," on the other hand. Now the Brown Hotel of Louisville is certainly doing business there in that city and it should rightfully pay an occupational tax on such privilege of following that business. But its bell boys and chamber maids are not doing business, even though they are associated with an enterprise that in itself is surely doing *Page 437 business. Those boys and maids are only following out the requirement of the Lord's mandate to Adam, namely, "In the sweat of thy face shall thou eat bread." To eat bread in the sweat of the face is much more of a necessity than a privilege. The time has come to distinguish between an occupational tax based on the theory of "doing business" and the activity of a person merely making a livelihood in the "sweat of the face." Even though an occupational business may be very humble, such as that of a one-chair barbershop or a one-horse dray, still it has an independent sovereignty that distinguishes it from the ordinary "sweat of the face" activity. The one is masterly though very humble. The other is servile though entirely honorable. There should be no privilege tax levied upon earning bread in a servile way, but such a tax should, I believe, be reserved exclusively for enterprises and professions and shops and individual activities performed in an unsupervised manner. A privilege of doing business is one thing. Earning a living is another. The first ordinarily encompasses the second. But the second need not encompass the first to any extent whatever.
And so, believing this ordinance and its broad burden of taxation to be illegal, I now dissent from the majority opinion.