Gleason v. Weber

• Decision Date: 22 October 1913
• Citation: 155 Ky. 731,155 Ky. 431,159 S.W. 976
• Parties: GLEASON, Justice of the Peace. v. WEBER.
• Court: Kentucky Court of Appeals

159 S.W. 976

155 Ky. 431, 155 Ky. 731

GLEASON, Justice of the Peace. v. WEBER.

Court of Appeals of Kentucky.

October 22, 1913

Appeal from Circuit Court, Campbell County.

Petition by Christian Weber for a writ of prohibition against P.J Gleason, Justice of the Peace. Judgment for petitioner, and defendant appeals. Reversed and remanded, with directions to dismiss.

Hubbard Schwartz, of Newport, for appellant.

Otto Wolff, of Newport, for appellee.

SETTLE J.

By an act of the General Assembly, approved February 15, 1888 (Session Acts 1887-88, c. 158) the district of Clifton, in Campbell county, was incorporated and given certain powers of self-government, vested in a board of trustees and their successors in office. Among these powers are the following "Said trustees appointed under the provisions of this act, and their successors in office, shall have power to enact all by-laws and ordinances necessary to the improvement, regulation, well-being and advancement of the interests of said district, provided, the same be not inconsistent with the Constitution or laws of the United States or of this state." Pursuant to the authority claimed under the above provisions of the act in question the board of trustees of the district of Clifton, by appropriate proceedings, passed an ordinance establishing a building code regulating the erection, repair, alteration, and addition to buildings and other structures in the district, as to their safety and sanitation as places of habitation, and for protection against fire. The ordinance also provided for the appointment of a building inspector of the district and defined his duties as such. The appellee, Christian Weber, after obtaining a permit from the board of trustees of Clifton, proceeded to erect a dwelling house in the district and, in so doing, seems to have violated some one or more of the regulations of the ordinance in question, because of which he was, on the information of the building inspector, arrested under a warrant, charging him with the offense, issued by the appellant, P.J. Gleason, a duly elected, qualified, and acting justice of the peace in the first magisterial district of Campbell county, in which is situated the district of Clifton. Appearing before appellant, appellee attacked the validity of the ordinance and denied the jurisdiction of appellant as a justice of the peace to try him for the offense charged in the warrant, but the trial was had and resulted in his conviction; the punishment inflicted being a fine of $10 and the costs of prosecution. As appellee persisted in his violation of the regulations of the ordinance, another warrant was issued by appellant as justice of the peace against him for the second offense; but, before he could be arrested or tried thereunder, appellee filed his petition in the Campbell circuit court for a writ of prohibition, the grounds alleged for the writ being that the ordinance, for violating the provisions of which appellee had been tried and convicted under the first warrant and was about to be tried under the second, was invalid because of the absence of power in the board of trustees to pass the ordinance, and furthermore that appellant, as justice of the peace, was without jurisdiction to try him. The appellant filed a demurrer to the petition and, at the same time, an answer, which traversed the averments of the petition. Following the submission of the case upon the demurrer, answer, and a copy of the ordinance, which was filed and made a part of the answer, the circuit court granted the writ of prohibition which prevented the collection of the fine and costs imposed against appellee under the first warrant and prevented appellant, as justice of the peace, from proceeding with the trial of appellee for the offense charged in the second warrant. This appeal is prosecuted from the judgment manifesting these rulings.

Two questions are presented for decision by the appeal: First, had the board of trustees of the district of Clifton power to adopt the building code ordinance and impose penalties for violations of its provisions; and, second, had appellant, as justice of the peace, jurisdiction to try an infraction of the ordinance?

The first question is not, in our opinion, difficult of solution. It will be observed that the ordinance is designed to advance the well-being of the municipality; its object being to require buildings and other structures to be erected in such a way as will contribute to the public safety and protect the public health. To this end the ordinance provides for an official inspection, by an inspector, of all buildings that are erected, which is of itself a guaranty of efficient construction and maintenance. The general powers conferred by the ordinance are such as are usually exercised under the police power by municipalities, and we discover nothing in its provisions that can be regarded as unreasonable, discriminatory, or oppressive; nor are any of its provisions inconsistent with the Constitution or laws of the United States or of this state.

As well stated in State v. Clarke, 54 Mo. 17, 14 Am.Rep. 471: "It is a naked assumption to say that any matter allowed by the Legislature is against public policy. The best indications of public policy are to be found in the enactments of our Legislature. To say that such a law is of immoral tendency is disrespectful to the Legislature, who no doubt designed to promote *** the morals and health of the citizens. Whether the ordinance in question is calculated to promote the object, is a question with which the courts have no concern" when the legislative will has been plainly expressed.

In L. & N. R. R. Co. v. Kentucky, 161 U.S. 677, 16 S.Ct. 714, 40 L.Ed. 849, we find this statement of the law on the subject under consideration: "Whatever is contrary to public policy or inimical to the public interest is subject to the police power of the state, and is within legislative control; and, in the exertion of such power the Legislature is vested with a large discretion, which, if exercised bona fide for the protection of the public, is beyond the reach of judicial inquiry."

In Silva v. City of Newport, 150 Ky. 781, 150 S.W. 1024, 42 L.R.A. (N. S.) 1060, in considering the power of the city council to pass an ordinance in pursuance of certain provisions of the city charter, practically the same as those of the act under which the board of trustees of the district of Clifton passed the ordinance here involved, we said "It is a well-recognized rule of law that, where the municipal legislature has the power to act, it must be governed, not by the discretion of the courts, but by its own discretion; for which reason the courts should not be hasty in convicting it of being unreasonable in the exercise of it." In the same case, in answer to the objection that the charter of the city of Newport was not sufficiently specific in its enumeration of the powers attempted to be conferred, we further said: "If subsection 25 of section 3058, Kentucky Statutes (under which authority was claimed for the passage of the ordinance complained of), were less explicit as to the subject and matters with respect to which cities of the second class may exercise the powers it confers, the closing sentence thereof, 'and any enumeration of subjects and matters herein to be regulated shall not be construed as a limitation upon this general power,' would justify us in saying that the power conferred upon municipalities (second class) is not confined to the subjects or matters therein enumerated, but may be exercised by it as to others of a like character not mentioned, which may come within the general scope of the police power of the state." Commonwealth v. Reinke C. M. Co., 117 Ky. 885, 79 S.W. 287, 25 Ky. Law Rep. 2027; C. & O. Ry. Co. v. City of Maysville, 69 S.W. 728, 24 Ky. Law Rep. 615; Crowley v. Christensen, 137 U.S. 86, 11 S.Ct. 13, 34 L.Ed. 620; South Covington Ry. Co. v. Berry, 93 Ky. 43, 18 S.W. 1026, 13 Ky. Law Rep. 943, 15 L.R.A. 604, 40...