Galanty & Alper v. City of Maysville

• Decision Date: 22 June 1917
• Citation: 196 S.W. 169,176 Ky. 523
• Parties: GALANTY & ALPER ET AL. v. CITY OF MAYSVILLE.
• Court: Kentucky Court of Appeals

196 S.W. 169

176 Ky. 523

GALANTY & ALPER ET AL. v. CITY OF MAYSVILLE.

Court of Appeals of Kentucky.

June 22, 1917

Appeal from Circuit Court, Mason County.

Consolidated suits by the City of Maysville against Galanty & Alper and others, and by Galanty & Alper and others against the City of Maysville. From a judgment dismissing the suit of Galanty &amp Alper and others, and granting the relief sought in the city's suit, etc., Galanty and Alper and others appeal. Affirmed.

Frank P. O'Donnell and H. W. Cole, both of Maysville, for appellants.

John M Calhoun, of Maysville, and M. M. Logan, Atty. Gen., for appellee.

CARROLL J.

The controversy in this case grows out of a question as to the validity of certain ordinances and orders adopted by the city of Maysville, establishing fire limits and declaring a structure within the limits to be a nuisance and ordering its removal.

The charters of cities of the fourth class of which Maysville is one, provides in section 3490 of the Kentucky Statutes that:

The city "council shall have power to provide for the prevention and extinguishment of fires. * * * Also, to regulate and restrain the erection of wooden buildings, and to provide for the removal of same when built contrary to the ordinances of the city, and to provide for the condemnation and removal of unsafe walls, and to require that all new buildings shall be erected as to their safety, subject to the approval of the city engineer or other designated authority Provided, no building shall be erected except by permission of the board of council."

Pursuant to this statute the city council of Maysville, in 1910, enacted an ordinance which, after describing the fire limits of the city, provided that:

"No frame or wood, part frame, hollow concrete blocks, iron clad or veneered structure or tent shall be erected hereafter within the fire limits as above described. * * * Frame sheds not over ten feet high opened on at least one side with side and floor covered with noncombustible material may be built, but a fence shall not be used as a side or back thereof. Such sheds shall not cover an area exceeding 500 square feet."

It further provided that:

"Any person or corporation violating the provisions of this ordinance or refusing to comply with its requirements or any of the several features governed by it, shall for each and every such violation or noncompliance be guilty of a misdemeanor and upon conviction thereof shall be fined not less than five dollars nor more than twenty-five dollars, and each noncompliance of ten days it so continues shall be deemed a separate and distinct offense."

In 1913 the city council granted to Galanty & Alper permission to erect within the fire limits of the city of Maysville "a metal side frame building and metal roof, in rear of their brick building." Thereafter Galanty & Alper, or their tenant, Bartlett, erected a building at the place described in the permit, and within the fire limits, that was intended to be, and was, used as a garage or storing place for automobiles. This building, as the evidence shows, was composed of a wood frame; the exterior as well as the interior walls of the frame work being covered with corrugated iron sheeting, and the roof was made of a nonmetal roofing material that rested on wooden sheeting supported by wooden rafters. There is also evidence to show that the original roofing material was noncombustible, and probably as safe and as impervious to fire as a metal roof would have been; but a part of this roof, probably one-third of it, had been in some way destroyed, and its place was supplied by a roofing material that was not fire-proof or noninflammable.

After this in 1916, a number of citizens owning property in the vicinity of this structure petitioned the council to require Galanty, Alper, and Bartlett to remove the building Galanty & Alper had put up, because it was dangerous and a menace to the other property in the neighborhood and increased the rate of insurance. The chief of the fire department also informed the city council in writing that he had examined the structure and found it to be in violation of the ordinance of 1910; that it increased the fire hazard within the block where it was situated, as well as the insurance rate on adjoining property, and was dangerous to life and a menace to the adjoining property; and he recommended that it be declared a nuisance.

After this a committee of the council appointed for that purpose investigated the structure and surrounding premises, and made to the council a report substantially the same as the one made by the chief of the fire department, which report was adopted by the council and the structure was declared to be a nuisance. On July 8, 1916, the mayor notified Galanty, Alper, and Bartlett of the action of the board of council, and ordered them to remove the structure within 5 days from the execution of the notice. Galanty, Alper, and Bartlett not giving any attention to the notices, the city authorities were about to remove the building, when a suit was brought to restrain them from tearing it down or interfering with the use of it by the owners and tenant. In answer to this suit the city set up the reasons why the building should be removed, and asked for all proper relief. Thereafter, the city filed an independent suit against Galanty, Alper, Bartlett, and a Mrs. Holtz, on whose lot part of the building was put, seeking a mandatory injunction to compel them to remove the structure complained of. After demurrers, special and general, had been overruled to this petition of the city, issues were formed and the two suits consolidated, and when the evidence was taken, it was submitted, and a judgment rendered, dismissing the suit of Galanty, Alper, and Bartlett against the city, and granting the relief sought in the suit of the city against them, and adjudging that Galanty, Alper, Bartlett, and Mrs. Holtz should, within 60 days thereafter, remove the structure.

It is first insisted by council for the appellants that the court erred in not sustaining the special demurrer to the petition filed by the city, and we think this contention, which was based on the ground that the city council had not authorized the suit to be brought, was well founded. It appears that the mayor of the city directed the city attorney to bring this suit, but that the council was not consulted about it. It is provided in section 3499 of the Kentucky Statutes, which is a part of the charter of cities of the fourth class, that:

"The mayor or chief executive shall see that the laws and ordinances of the city are duly enforced and observed, and are faithfully executed"

--and it is argued on behalf of the city that this statute authorizes the mayor to bring a suit when in his judgment it is necessary in order to enforce an observance of the ordinances of the city. There can be no doubt that the mayor of the city may bring a suit when authorized by the council to do so, but the statute does not confer this authority on the mayor in the absence of direction by the council, unless an emergency should arise demanding prompt action on his part and it appeared that authorization from the council could not reasonably be obtained in time to permit him to take such steps as the exigencies of the case required. In City of Louisville v. Murphy, 86 Ky. 53, 5 S.W. 194, 9 Ky. Law Rep. 310, it was held that in cases of emergency the mayor, without the authority of the city council, might bring a suit to protect the interests of the city. But the court further said:

"We think the mayor has

...