Boyd and Others v. Board of Council of the City of Frankfort

• Decision Date: 18 December 1903
• Citation: 117 Ky. 199
• Parties: Boyd and Others v. Board of Council of the City of Frankfort.
• Court: Kentucky Court of Appeals

117 Ky. 199

Boyd and Others v. Board of Council of the City of Frankfort.

Court of Appeals of Kentucky.

December 18, 1903.

APPEAL FROM FRANKLIN CIRCUIT COURT.

JUDGMENT FOR DEFENDANTS AND PLAINTIFFS APPEAL. REVERSED.

HAZELRIGG & CHENAULT, FOR APPELLANTS.

IRA JULIAN, ATTORNEY FOR APPELLEE.

OPINION OF THE COURT BY JUDGE SETTLE — REVERSING.

This action was instituted and an injunction obtained by the appellants for the purpose of preventing the enforcement by the appellees, city of Frankfort, its officers and agents, of an alleged void ordinance, and incidentally for the further purpose of restraining certain prosecutions then pending in the police court against the appellants, as well as others of a like kind with which they were threatened, all for alleged violations of the ordinance in question. It is, in substance averred in the petition: That the appellants are residents and citizens of the State of Kentucky and of the United States, and belong to the negro race. That they are trustees of the First (colored) Baptist Church in the city of Frankfort, which church is a voluntary association, composed of a congregation of the negro race, whose purpose has been and is to engage in the worship of Almighty God according to the dictates of their own consciences. That there are several hundred members of this church, all having a common interest with the appellants, for which reason, and because of its being impracticable to make them all parties, the action was instituted by the appellants for themselves and the other members of the church, and also as trustees of and for the church. That the appellants are owners, as trustees of the First Baptist Church, of a certain lot of ground in the city of Frankfort situated on the northeast corner of Clinton and High streets, of which lot they became the owners for the purpose of erecting a church thereon for the use of the First (colored) Baptist Church, which was and is to be of brick, with slate roof, and as nearly fireproof as practicable. That, after purchasing the necessary materials, and entering into the necessary contracts with certain persons for the erection of the church building, but before beginning its erection, the appellants, acting upon advice and according to custom, applied to the common council of the city of Frankfort for permission to erect their church building, but were arbitrarily and illegally refused the right to do so, and when appellants, through their contractors and employes, went upon the lot where the church building was to be erected, and were about to tear down an old building thereon preparatory to the erection of the church, and were engaged in the work of constructing the foundation therefor, the appellee city, through its mayor swore out a warrant of arrest for the appellants, its contractors and employes, which warrant, when issued by the police judge, was executed by a police officer of the appellee city by arresting the appellants and their workman, and taking them before the police judge, who tried them under the warrant upon the charge of violating an alleged ordinance of the city which required them and all others to obtain a building permit before erecting any building in the city of Frankfort. It is further averred that after the trial of appellants and their workmen by the police judge, he, without then rendering his decision, took the case under advisement, but subsequently rendered a judgment to the effect that it was not a valid or enforceable ordinance; consequently the appellants and other defendants in that prosecution were held not guilty, and were therefore discharged.

It also averred that during the time the police judge had the case mentioned under consideration, and before its decision by him, the following ordinance was enacted by the common council and approved by the mayor, viz.:

"An ordinance to provide for the punishment of persons erecting or maintaining nuisances, and for the removal of same.

"Be it enacted by the Common Council of the City of Frankfort:

"Section 1. That if any person or persons shall proceed to erect any structure or building, within the city limits, without the consent of the common council, and said structure or building (where used for the purpose for which it is designed and intended) would be greatly injurious to adjacent property, and destroy the comfort, convenience, peace and reasonable enjoyment of life of adjacent residents, the same shall be deemed to be and constitute a nuisance, and they shall be punished by a fine not less than $5.00, nor more than $20.00, and each day they may proceed with the erection of said structure or building, shall be deemed a separate offense, and upon conviction, it shall be the duty of the police officers to remove said structure, or any part thereof, at the expense of the owner.

"Section 2. This ordinance to take effect and be in force from and after its passage, and all ordinances or parts of ordinances in conflict herewith are hereby repealed."

The further averment is made in the petition that the appellants and their employes were, by the procurement of the appellees, again arrested under warrants issued by the same police judge, and served by the same police officers, upon the charge of violating the ordinance supra, because they were attempting to proceed with the work of erecting their church building, and upon being tried therefor they were fined $5 each, and each adjudged to pay $5.80 costs; that they are threatened with further prosecutions from the same source and for the same cause, and, as the maximum fine prescribed by the ordinance is $20, which is less than an amount from which an appeal is allowable under the law, their only remedy is the writ of injunction. It is also averred by the appellants that the ordinance complained of was adopted by the common council of the appellee city pending the decision of the police judge in the cases arising out of the warrant first issued, and that it was adopted for the express purpose of preventing the appellants from erecting their church building, and solely because the church membership is composed of negroes; that, by its enforcement the appellants and their fellow-church members are and will be deprived of the equal protection of the laws, and are being discriminated against in the enjoyment of their civil and religious rights under the Constitution of the State and United States, and that the ordinance, if upheld, will deprive them of their liberty and property and the use of the latter, without due process of law, and will deny them equal protection under the law, contrary to the fourteenth amendment of the Constitution of the United States, and especially to the Bill of Rights, section 2 of the Constitution of this State, wherein it is declared that "absolute and arbitrary power over the lives, liberty and property of freeman exist nowhere in a republic, not even in the largest majority." The additional averment is made in the petition that the ordinance in question is inadequate, uncertain of meaning, and ambiguous; that it is likewise oppressive, unreasonable, arbitrary, and void.

The appellee board of councilmen filed separate answer to the petition, in which they failed to deny the arrest and trial of the appellants set forth in the petition, or that they had been interfered with as alleged in the work of erecting their church building; nor do they deny that the ordinance complained of was adopted by them after the arrest and trial of appellants under the first warrant, and before the judgment of the police judge was rendered, acquitting them of the charge in that warrant. But the answer does deny all the averments of the petition in regard to the alleged purpose of the enactment of the ordinance, or that it is open to the constitutional or other objections urged against its validity by the appellants. It also denies that the refusal of the common council to grant appellants permission to erect the church was arbitrary, and aver that the refusal was made in the exercise of a sound discretion, and because appellants did not have the written consent of a majority, or, in fact, of any, of the citizens and property owners residing within 200 yards of the place of the proposed building to its erection, as required by an ordinance of the city; and, further, that the church proposed to be erected by the appellants will constitute a nuisance, because the mode of worship practiced by its members is and will be so boisterous, loud, and unseemly as to interfere with the peace and quietude of the citizens and property owners residing adjacent to the church. The answer also interposes the plea of res judicata, as it is therein averred that the same matters and issues involved in this action were litigated and tried in a previous suit between the same parties before a special judge, whose decision was adverred to the appellants, and the judgment in the alleged former action is pleaded in bar of this one. The appellees mayor, police judge, chief of police, and city marshal also filed an answer to the petition, in which they adopted the averments of the answer of the board of councilmen, and in addition set out the facts with reference to the second arrest and trial of the appellants.

Demurrers were filed by the appellants to the answers, and each paragraph thereof, which were overruled by the lower court. Thereupon the appellants filed reply controverting the material averments of the answers. By mutual consent of the parties the evidence was all taken in the form of affidavits, and, the cause having been submitted upon the pleadings and affidavits, judgment was rendered by the lower court dismissing the petition, and allowing the appellees their costs, the temporary restraining order having theretofore been dissolved by the court on appellee's motion.

The case being before this court on the appeal, we will consider first the objection urged to the constitutionality of the...