City of Monticello v. Bates

• Decision Date: 21 March 1916
• Citation: 183 S.W. 555,169 Ky. 258
• Parties: CITY OF MONTICELLO v. BATES.
• Court: Kentucky Court of Appeals

183 S.W. 555

169 Ky. 258

CITY OF MONTICELLO v. BATES.

Court of Appeals of Kentucky.

March 21, 1916

Appeal from Circuit Court, Wayne County.

Injunction suit by the City of Monticello against Harrison Bates. From a judgment sustaining demurrer to the petition, plaintiff appeals. Reversed and remanded.

Garnett & Van Winkle, of Louisville, and O. B. Bertram, of Monticello, for appellant.

E. T Wesley, of Somerset, and Harrison & Harrison, Duncan & Bell and F. R. Harrison, all of Monticello, for appellee.

MILLER C.J.

This is the second appearance of this case in this court. The opinion upon the former appeal may be read in 163 Ky. 38, 173 S.W 159. In 1905, the city of Monticello, by ordinance, fixed a fire district within its limits, providing that no permit should be granted to any one to erect or repair any building within the fire district, except of brick or stone. Claiming that a permit had been issued to Bates, in April, 1914, to build a brick-veneered garage building within the fire district, and that instead of complying with the ordinance and the permit, he had erected a frame building within the fire district, the city filed this injunction suit, praying that Bates be either compelled to complete his building according to the terms of the permit, or that he be required to remove the building outside of the fire district; and that he be enjoined from using or occupying it until one of said things was done. A special demurrer to the petition challenging the jurisdiction of the circuit court to grant relief by way of injunction, was sustained, and the first appeal was taken from that order. This court, however, reversed the judgment of the circuit court sustaining the special demurrer, with instructions to overrule it, holding that the circuit court had power to grant the relief prayed, because the relief by prosecution in the police court was not adequate. Upon a return of the case to the circuit court, the special demurrer to the petition was overruled. A general demurrer to the petition was likewise overruled. Defendant answered, traversing the allegations of the petition, and, in a second paragraph, he alleged that the ordinance fixing the fire district had been repeatedly and continuously violated, for many years, by other persons building frame houses within the fire district, and for that reason he should be permitted to do likewise. A demurrer to the second paragraph of the answer was carried back to the petition and sustained to that pleading, and from that ruling the city again appeals.

The opinion upon the first appeal was confined entirely to the question of the jurisdiction of the circuit court to prevent the violation of the ordinance by way of injunction, and concluded that the circuit court had jurisdiction to so proceed, because the remedy provided by the police court was inadequate. Appellee now insists, however: (1) that the general council of the city of Monticello, a city of the fifth class, had no power or authority to enact the ordinance prescribing a fire zone, or to regulate or restrain the erection of wooden buildings therein, or to provide for their removal; and (2) that if it be determined that the council had the right to pass the ordinances in question, they are invalid because they fix no standard by which the action of the city council in granting or refusing its consent is to be controlled, and places with the council the arbitrary and absolute power to grant or withhold permits, at its pleasure; and for this reason the ordinance violates both the state and federal constitutions. In order to properly consider these questions, a careful reading of the text of the ordinances is necessary. The ordinance of 1904 reads as follows:

"Ordinance No. 16.

The board of trustees of the town of Monticello, Ky. do ordain as follows:

That no person shall erect any building or structure of any kind, or materially alter or repair any building or structure already within the town of Monticello, without the permission of the board of trustees of said town, to erect said building or to make said repairs. Any person violating the provisions of Sect. No. one of this ordinance, shall, upon conviction, be fined in any sum not exceeding one hundred dollars.

Sec. 2. No permit shall be granted by the trustees for the erection of a building or structure or for materially altering or repairing the same until the party desiring to erect said building or structure or to repair the same, shall file with the town clerk an application for such permit and together therewith the plans and specifications of the proposed building or structure, and any building or structure erected without the permission of the said trustees so to do, shall be subject to removal by order of the trustees at any time within 12 months after the erection of such building or structure at the expense of the owner thereof.

Sec. 3. No person shall recover any building or structure now erected in the town of Monticello with anything except tin, slate, iron or other noncombustible material, except by permission of the board of trustees. Any person violating the provisions of this section shall upon conviction be fined in any sum not exceeding one hundred dollars.

Sec. 4. The town clerk shall receive a fee of twenty-five cents for each permit granted."

The second ordinance (No. 34), adopted in 1905, creating the fire district in question, reads as follows:

"An ordinance creating a fire district in the town of Monticello, Ky.

The board of trustees of the town of Monticello, Ky. do ordain as follows:

That a fire district be and the same is hereby established within the town of Monticello, Ky. to include the following boundary: Beginning at the southwest corner of the residence lot of W. C. Rogers on North Main street to Michigan avenue; thence to include both sides of Michigan avenue to the mouth of the alley leading to Short street between the property of the Jones heirs' and J. A. Brown; thence with said alley to Short street; thence to include both sides of Short street, its entire length; thence with the public square, including all property adjacent to it to the beginning of South Main street; thence including both sides of South Main street to the mouth of the alley leading west between the warehouse of G. M. Hedrick and the residence of W. R. Cress; thence with said alley its entire length to Columbia street; thence with the alley leading north to the livery stable of S. Ragan & Son; thence with and including both sides of the street leading east to North Main street; thence with and including the west side of North Main street north to a point opposite the place of beginning.

Sec. 2. The board of trustees of said town shall not grant a permit to any person or persons or corporation to erect or repair any building, except of brick or stone to be covered with a metal or slate roof within the boundary described in section one of this ordinance."

In support of appellee's first objection, it is insisted that, the municipality being purely a creature of the state, it possesses no powers or rights other than those that are conferred by the state. After providing in subsection 1 of section 3637 of the Kentucky statutes that the city councils of cities of the fifth class shall have power to pass ordinances not in conflict with the Constitution or laws of this state or of the United States, subsection 7 of said section grants the further power:

"To do and perform any and all acts and things necessary and proper to carry out the provisions of this chapter, and to exact and enforce, within the limits of such city, all other local, police, sanitary and other regulations as do not conflict with general laws."

It will be observed that the statute confers upon cities of the fifth class a broad power to enact and enforce all local, police, sanitary and other regulations as do not conflict with the general laws. It is true that the charter does not expressly empower the city to pass an ordinance prescribing a fire zone; but, if that power be implied, or incident to the primary power to enact all local, police, or sanitary regulations not in conflict with the general laws, then the power exists.

In Simrall v. City of Covington, 90 Ky. 448, 14 S.W. 370, 12 Ky. Law Rep. 404, 9 L.R.A. 556, 29 Am.St.Rep. 398, this court said:

"Municipal corporations may exercise: First, those powers which are expressly granted; and, second, those necessarily implied, or incident to those expressly granted, and which are indispensable to a proper execution of the objects of the corporation. Their authority is not to be so strictly construed as to defeat the legislative intention; but if there be a fair and reasonable doubt of the existence of the power, it should be resolved by a court against the municipality."

This principle was recognized in the late case of the District of Clifton v. Cummins, 165 Ky. 527, 177 S.W. 432. And in O'Bryan v. Highland Apartment Co., 128 Ky. 282, 108 S.W. 257, 33 Ky. Law Rep. 349, 15 L.R.A. (N. S.) 419, the court expressly held that municipalities have the right, either expressed, implied, or as an incident to the power granted, to make such regulations as will prevent the spread of fire. In that case, the court said:

"Courts of last resort generally recognize the right of municipalities to pass all reasonable rules and regulations that may be necessary to protect the health and morals of the city, and to make such regulations as may be necessary to prevent the spreading of fires, and protect property within the corporate limits. The exercise of these functions on the part of the municipality is under the police power, and the only restriction and limitation thrown around the act of the municipality in passing

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