Clayton v. City of Henderson, Etc.

• Citation: 103 Ky. 228
• Parties: Clayton v. City of Henderson, Etc.
• Decision Date: 19 February 1898
• Court: Court of Appeals of Kentucky

103 Ky. 228

Clayton v. City of Henderson, Etc.

Court of Appeals of Kentucky.

February 19, 1898.

APPEAL FROM HENDERSON CIRCUIT COURT.

S. B. & R. D. VANCE AND MONTGOMERY MERRITT FOR APPELLANT.

CLAY & CLAY FOR APPELLEES EXCEPT ATKINSON AND BUCHOLZ.

DUDLEY & FITTS FOR APPELLEE BUCHOLZ.

JUDGE Du RELLE DELIVERED THE OPINION OF THE COURT.

By an act adopted in 1886, embodied in section 3909 Kentucky Statutes, it was provided:

"It shall not be lawful to locate or maintain any pest-house or other place intended for the treatment of eruptive diseases, or diseases which are contagious or infectious, within the corporate limits of any incorporated city or town, or within a distance of one mile of the boundary line thereof. Any officer of any city or town, or other person, who shall violate the provisions of this act, or in anywise aid or abet therein, shall be deemed guilty of a misdemeanor, and, upon conviction thereof in any court of competent jurisdiction, shall be fined not less than five hundred dollars nor more than one thousand dollars, and be liable in damages to any person injured thereby, and, if wilfully done, such person or his heirs or representatives may recover punitive damages."

Under this statute, which is set out in the petition, the appellant brought suit, making parties defendant the City of Henderson, the mayor thereof, the members of the common council, and the keeper of the pest-house and his surety; alleging that they had wilfully maintained, and aided and abetted in maintaining a pest-house within one-half mile of the limits of the city, near appellant's residence; that they had sent persons afflicted with smallpox to the pest-house; that, by that means, that disease was communicated to her, to her damage, and that they had taken no steps, and provided no means, to prevent the spreading of the disease and the communication thereof to other persons.

After various motions to require appellant to elect which of the defendants she would proceed against, and whether she would pursue a cause of action under the common law or under the statute, had been overruled, general demurrers to the petition were sustained.

On behalf of appellees it is claimed that the act of 1886 was repealed by implication by the act of June 14, 1893, for the government of cities of the third class, which provides (section 3290):

"The common council of each of said cities shall, within the limits of the Constitution of the State and this act, have power by ordinance . . . . To prevent the introduction of contagious diseases into the city, to make quarantine laws for the purpose and enforce the same within ten miles of the city. To establish and erect hospitals, almshouses, city prisons, workhouses, make regulations for the government thereof, and to acquire and hold land for the purpose either within or beyond the boundaries of the city."

The claim is that the act of 1886 is a limitation upon the power of the common council of cities of the third class, and, therefore, inconsistent with the grant of power in the charter, which recognizes no limitations except the Constitution and this act; and further, that the act of 1893 was intended to cover the whole subject of the rights, duties and liabilities of cities of the class named; and it is urged that, being so intended, it is a repeal of all prior legislation upon the subject, even if not in terms repugnant.

It was also urged that the intent of the Legislature to repeal the act of 1886 is further shown by the provisions of the acts in regard to the government of cities of the second and fourth classes — notably the latter, which provides (section 3490, Kentucky Statutes) that the boards of council of said cities shall have power "to make regulations to prevent the introduction or spreading of contagious or infectious diseases in the city, pass quarantine laws for that purpose and enforce the same within one mile of the city; to establish and regulate hospitals or pest-houses in or outside of the city; to make all regulations necessary to secure the general health of the inhabitants of the city, and to regulate and provide for the burial of the dead."

Undoubtedly, it needs no argument to show that the word "hospitals" includes pest-houses. But it does not follow because the city council is authorized to establish hospitals and other named institutions, most of which are proper and some of which are necessary to be situate within the city its and for such purpose is also authorized to acquire property within or without those limits, that, therefore, all may be established within the boundary. On the contrary, the preceding sub-section above quoted looks directly to the exclusion of contagious diseases from the city limits; and it would be a strained construction to hold that the adoption of an act which was manifestly intended to authorize the deportation of cases of contagious diseases from cities of the third class accomplished the repeal of an act which forbids the treatment of such cases within the limits, or in the vicinity of cities of all classes. It is true that the Constitution (section 156) provides that "All municipal corporations of the same class shall possess the same powers and be subject to the same restrictions;" and if the act of 1886 was applicable alone to cities of the third class, there might be force in the contention that the act for their government was intended as a complete code of laws on the subject, and, therefore repealed all antecedent laws in relation thereto not embraced in its provisions. But the act of 1886 is not restricted in its application to cities of the third class; it embraces all municipalities, is a proper exercise of the general police powers of the State government to take measures for the security of the health of its citizens, and we do not think it repealed by the act of 1893 any more than the common law of nuisances is thereby repealed as to nuisances established within the limits of cities of the third class. Whether the general act is repealed as to cities of the fourth class by the act for their government is not presented by this record, and need not be here considered.

It is further contended on behalf of the city of Henderson that, even if the act of 1886 was not repealed, the city can not be held liable, because the act does not make the corporation responsible, but only the officers who shall violate its provisions; and further, because the act complained of, being forbidden by statute, was beyond the scope of the powers of the municipality, was ultra vires, and therefore imposed no...