City of Harlan v. Scott
| Decision Date | 08 May 1942 |
| Citation | 290 Ky. 585,162 S.W.2d 8 |
| Parties | CITY OF HARLAN v. SCOTT et al. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Harlan County; J. S. Forester, Judge.
Action by L. B. Scott and others, against the City of Harlan to enjoin enforcement of an ordinance prohibiting operation of a moving picture show on Sunday. From a judgment holding the ordinance invalid, the city appeals.
Affirmed.
Gus Bruner, City Atty., of Harlan, for appellant.
R. Kent Sampson and D. B. Smith, both of Harlan, for appellee.
The City of Harlan on February 6, 1939, passed an ordinance which, in effect, made it unlawful to operate a picture show on Sunday after six o'clock P.M. and provided a fine of not less than $5 nor more than $15 for each violation.
The appellee, L. B. Scott, General Manager of the appellee Phoenix-Harlan Theater Company, was arrested and fined for violation of the ordinance and thereupon, in conjunction with the theater company, instituted this action, alleging invalidity of the ordinance and seeking injunctive relief on account of threatened multiplicity of prosecutions under the ordinance.
The appellant's demurrer to the petition was overruled and upon its declining to plead further, judgment was rendered enjoining it from enforcing this ordinance as against appellees. This appeal is prosecuted from that judgment and the only question raised is as to the correctness of the trial court's judgment holding the ordinance invalid.
There can be no doubt as to the constitutionality of laws prohibiting work and labor and the following of trades and occupations on Sunday and particularly is this true as to laws prohibiting the operation of picture shows. Capital Theater Co. v. Com., 178 Ky. 780, 199 S.W. 1076; Strand Amusement Co. v. Com., 241 Ky. 48, 43 S.W.2d 321. In these two cases it was held that the operation of a picture show on Sunday was a violation of Kentucky Statutes section 1321, prohibiting any person from being found at his own trade or calling and from employing other persons in labor or other business. However, those cases were decided prior to the 1934 amendment to section 1321. By that amendment it was provided that the operation of a moving picture show should not be construed a work, labor, trade, business or calling within the meaning of the section.
Thus we have a plain legislative declaration of policy regarding the operation of picture shows on Sunday, declaring that they shall not be construed as work or labor within the meaning of the Sunday closing law. This being true, it follows that a municipal ordinance prohibiting Sunday operation of picture shows is invalid since all municipal authority comes from the Legislature and municipal ordinances must be in harmony with the general laws of the State. An ordinance may cover an authorized field of local laws not occupied by general laws but cannot forbid what a statute expressly permits and may not...
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