City of Hazard v. Duff

CourtCourt of Appeals of Kentucky
Writing for the CourtVAN SANT, Commissioner.
Citation154 S.W.2d 28,287 Ky. 427
PartiesCITY OF HAZARD v. DUFF et al.
Decision Date10 June 1941

154 S.W.2d 28

287 Ky. 427

CITY OF HAZARD
v.
DUFF et al.

Court of Appeals of Kentucky

June 10, 1941


Rehearing Denied Oct. 7, 1941.

Appeal from Circuit Court, Perry County; J. E. Sanders, Special Judge.

Action by the City of Hazard against H. P. Duff, trustee and another for an injunction against further proceedings under an execution in defendant Duff's favor against plaintiff. Judgment for defendants, and plaintiff appeals.

Affirmed. [154 S.W.2d 29]

W. E. Faulkner, of Hazard, for appellant.

John E. Campbell, of Hazard, for appellees.

VAN SANT, Commissioner.

This action was instituted by the city of Hazard against H. P. Duff, a judgment creditor of said city, and Justus Begley, sheriff of Perry county, seeking to enjoin said defendants from proceeding further under an execution in favor of Duff against the plaintiff and which had been levied on a brick building of plaintiff situate on High Street in the city of Hazard.

It is claimed by appellant that said property was acquired by the city for governmental purposes; that same is in the process of being repaired and improved, and on completion will be occupied, for governmental purposes and therefore is not subject to execution. Defendants contend that the property is held by the city in its proprietary capacity and for that reason the city is not entitled to the immunity claimed.

A municipal corporation has a two-fold character, the one governmental and the other proprietary. In the establishment of a municipality, the state, acting through its Legislature, does not divest itself of its right to administer the public affairs of the state in its entirety; it merely constitutes the city its agent for the purpose of government within a limited territory. As such agency, the city executes the functions which would otherwise be performed by the state itself, and in such capacity it is imbued with all the rights and immunities of sovereignty.

In its private capacity it is clothed with an entirely different character.

It has long been recognized that the people of a local community, more or less compact in its development, require certain conveniences which are not necessary or feasible to persons in rural or less compact districts, and such conveniences as would be financially impossible of attainment in communities less densely populated. These conveniences are of time furnished by private corporations organized for profit. But since such conveniences often become necessities to be enjoyed and utilized by the entire population in circumscribed areas, it has sometimes been found more satisfactory to include the entire community in the undertaking or organization of the business furnishing them, and, where the boundaries of the community to be benefited by such conveniences are coincident with the boundaries of a municipal corporation created by the Legislature, it has been customary for the Legislature to grant to the municipality the right to exercise the franchise which might otherwise be granted to a private corporation. When a municipality elects to function under this authority it must do so as a private corporation and, in such capacity, it may not be clothed with the immunities, rights, and...

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13 practice notes
  • City of E. Liverpool v. Buckeye Water Dist., Nos. 11 CO 41
    • United States
    • United States Court of Appeals (Ohio)
    • June 21, 2012
    ...724 [ (1946) ]. In other states where this rule exists levy may be made on waterworks property. City of Hazard v. Duff, 287 Ky., 427, 154 S.W.2d 28 [ (1941) ]; see Fred Berlonti [ Berlanti ] & Son, Inc. v. Borough of Manheim Authority, 93 F.Supp. 437 [ (1950) ].” State ex rel. Baldine, supr......
  • Haselwood v. Bremerton Ice Arena, Inc., No. 33910-2-II.
    • United States
    • Court of Appeals of Washington
    • April 10, 2007
    ...Kerr v. New Orleans, 126 F. 920 (5th Cir.1903); City of Bradenton v. Fusillo, 134 Fla. 759, 184 So. 234 (1938); City of Hazard v. Duff, 287 Ky. 427, 154 S.W.2d 28 5. RCW 60.04.021 authorizes any person who furnishes labor, materials, professional services, or equipment for the improvement o......
  • Seltenreich v. Town of Fairbanks, No. 6926.
    • United States
    • United States District Courts. 9th Circuit. District of Alaska
    • March 4, 1952
    ...for private individuals or corporations and is clothed with same full measure of authority over its property." In City of Hazard v. Duff, 287 Ky. 427, 154 S.W.2d 28, at page 29(8), it is stated: "* * * but the courts in general, and those of this state in particular, are committed to the ru......
  • Estate of DeBow v. City of East St. Louis, Ill., No. 5-90-0727
    • United States
    • United States Appellate Court of Illinois
    • May 4, 1992
    ...ability to carry out its duties and there is no reason that execution should be precluded. See City of Hazard v. Duff (1941), 287 Ky. 427, 154 S.W.2d 28; Maryland Casualty Co. v. Leland (1938), 214 N.C. 235, 199 S.E. 7; Board of Councilmen v. White (1928), 224 Ky. 570, 6 S.W.2d 699; see als......
  • Request a trial to view additional results
13 cases
  • City of E. Liverpool v. Buckeye Water Dist., Nos. 11 CO 41
    • United States
    • United States Court of Appeals (Ohio)
    • June 21, 2012
    ...724 [ (1946) ]. In other states where this rule exists levy may be made on waterworks property. City of Hazard v. Duff, 287 Ky., 427, 154 S.W.2d 28 [ (1941) ]; see Fred Berlonti [ Berlanti ] & Son, Inc. v. Borough of Manheim Authority, 93 F.Supp. 437 [ (1950) ].” State ex rel. Baldine, supr......
  • Haselwood v. Bremerton Ice Arena, Inc., No. 33910-2-II.
    • United States
    • Court of Appeals of Washington
    • April 10, 2007
    ...Kerr v. New Orleans, 126 F. 920 (5th Cir.1903); City of Bradenton v. Fusillo, 134 Fla. 759, 184 So. 234 (1938); City of Hazard v. Duff, 287 Ky. 427, 154 S.W.2d 28 5. RCW 60.04.021 authorizes any person who furnishes labor, materials, professional services, or equipment for the improvement o......
  • Seltenreich v. Town of Fairbanks, No. 6926.
    • United States
    • United States District Courts. 9th Circuit. District of Alaska
    • March 4, 1952
    ...for private individuals or corporations and is clothed with same full measure of authority over its property." In City of Hazard v. Duff, 287 Ky. 427, 154 S.W.2d 28, at page 29(8), it is stated: "* * * but the courts in general, and those of this state in particular, are committed to the ru......
  • Estate of DeBow v. City of East St. Louis, Ill., No. 5-90-0727
    • United States
    • United States Appellate Court of Illinois
    • May 4, 1992
    ...ability to carry out its duties and there is no reason that execution should be precluded. See City of Hazard v. Duff (1941), 287 Ky. 427, 154 S.W.2d 28; Maryland Casualty Co. v. Leland (1938), 214 N.C. 235, 199 S.E. 7; Board of Councilmen v. White (1928), 224 Ky. 570, 6 S.W.2d 699; see als......
  • Request a trial to view additional results

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