City of Bowling Green v. Milliken
| Decision Date | 21 December 1934 |
| Citation | 77 S.W.2d 777,257 Ky. 245 |
| Parties | CITY OF BOWLING GREEN v. MILLIKEN, Police Judge. |
| Court | Kentucky Court of Appeals |
Rehearing Denied Feb. 1, 1935.
Original petition by the City of Bowling Green for a writ of prohibition against G. D. Milliken, Jr., Police Judge.
Writ denied, and petition dismissed.
Laurence B. Finn and J. Frank Denton, both of Bowling Green, for petitioner.
Stout & Herdman and G. D. Milliken, Jr., all of Bowling Green, for respondent.
The board of councilmen of the city of Bowling Green, a city of the third class with a population of approximately fifteen thousand, adopted an ordinance on November 8, 1933, requiring all owners and occupants of buildings situated upon lots abutting upon any street or alley in which there is established a sewer line, which is a part of the sanitary sewer system of the city, to connect therewith all sewage drainpipes of such buildings and failure to do so was declared to be unlawful and to be a nuisance. Section 3 of the ordinance makes it unlawful for any person to maintain a privy, vault, cesspool, or similar contrivance for the reception of human excrement or other sewage when the premises abut upon a street or alley in which a public sewer is located, and all such contrivances are declared to be nuisances. Section 7 of the ordinance provides that any person violating any of the provisions of the ordinance or failing or refusing to comply with same shall be fined not less than $2 nor more than $5 for each offense, and each day such person fails or refuses to make sewer connection from any property or building owned or occupied by him, and each day such contrivance into which sewage is cast, or permitted to be disposed, is kept or maintained in violation of the ordinance, is made a separate offense.
The city constructed a sanitary sewer system at a cost of approximately $600,000 on the revenue bond system, the rentals received from the owners or occupants of property abutting upon streets or alleys along which sewer laterals were constructed to be used to create a sinking fund to retire the bonds and pay the interest thereon. The sewer system was completed in the spring of 1934, and the citizens of Bowling Green were notified to make connection therewith. About 3,400 lots abut upon streets and alleys along which sewer laterals have been constructed, but the owners or occupants of less than 2,000 of these lots had made connection with the system when a number of warrants were issued in August, 1934, charging certain owners of property with violations of the ordinance of November 8, 1933. One John Meredith was first tried, and Hon. G. D. Milliken, Jr. judge of the police court of the city of Bowling Green sustained a demurrer to the warrant on the theory that the ordinance of November 8, 1933, was invalid, and he indicated his purpose to dismiss the warrants against all defendants where a common-law nuisance was not specifically alleged. It was his view that under the police power of the city the board of councilmen was not authorized to declare the maintenance of a surface toilet, vault, cesspool, or similar contrivance for the disposal of human excrement a public nuisance. Thereupon the city filed in this court a pleading styled "Petition for Writ of Prohibition," in which G. D. Milliken, Jr., judge of the Bowling Green police court, is named respondent.
The petition sets out at length the steps taken preliminary to the construction of the sanitary sewer system by the city, and the ordinance authorizing the construction of the system and the issuance of bonds is fully set out as is the ordinance of November 8, 1933, the validity of which is in question and the enforcement of which is necessary to enable the city to collect sufficient revenue in the form of rentals to retire the bonds with the proceeds of which the sewer system was constructed. It is alleged that unless the city can by ordinance compel the property owners of the city to make connection with the sanitary sewer system a large percentage of the citizens will not connect with same, thereby jeopardizing the health of the residents of the city, and that by the provisions of section 3290-16, Kentucky Statutes, the city has the right to protect the health of its citizens and to that end to declare and define public nuisances. It is further alleged that the respondent has jurisdiction to try the persons against whom warrants have been issued, but that the fine imposed for failure to comply with the ordinance is from two to five dollars and, while such fines are sufficient to enforce the law if the ordinance is held constitutional, the amount is not sufficient for the city to appeal from the judgment of the police court to any higher court, and it is, therefore, without any adequate remedy at law by appeal or otherwise to establish its rights or to require the use of the sanitary sewer system which was established to preserve the health of its citizens. The petitioner asks this court to issue a writ directing the judge of the police court of the city of Bowling Green to hold the ordinance of November 8, 1933, valid and to adjudge that the petitioner has the right to pass such an ordinance and to declare and define all sewage disposals made contrary to the provisions contained in such ordinance as constituting a public nuisance.
We are met at the outset with a preliminary question of procedure. It is earnestly insisted by the respondent that the petitioner has an adequate remedy at law and that, therefore an original action in this court cannot be maintained, and in this view we concur. The Court of Appeals has only such jurisdiction as section 110 of the Constitution confers upon it. That section reads: An examination of the numerous cases in which section 110 of the Constitution has been construed discloses that the Court of Appeals is reluctant to assume jurisdiction in an original proceeding in that court and will do so only where it...
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