Henry v. Parrish

• Decision Date: 26 March 1948
• Citation: 211 S.W.2d 418,307 Ky. 559
• Parties: HENRY et al. v. PARRISH et al.
• Court: Kentucky Court of Appeals

211 S.W.2d 418

307 Ky. 559

HENRY et al. v. PARRISH et al.

Court of Appeals of Kentucky

March 26, 1948

As Modified on Rehearing May 28, 1948.

Appeal from Circuit Court, Chancery Branch, Second Division Jefferson County, W. Scott Miller, Judge.

Suit for a declaration of rights and injunctive relief by Herman A. Parrish and others against M. J. Henry and others to prevent imposition and collection of a permit fee by Louisville and Jefferson County Board of Health. From an adverse judgment permanently enjoining collection of such fee, defendants appeal.

Judgment affirmed.

Gilbert Burnett and Lawrence G. Duncan, both of Louisville, for appellants.

Earl C Frankenberger, of Louisville, for appellees.

CLAY Commissioner.

This suit was brought to obtain a declaration of rights and injunctive relief against the Louisville and Jefferson County Board of Health (hereinafter referred to as 'Board') and two of its officers. Plaintiff, appellee, is the owner of a retail restaurant business in Jefferson County. The object of the suit was to prevent the imposition and collection of a 'permit fee' prescribed by the rules and regulations of the Board. The Chancellor adjudged the Board was without right or power to fix this charge, and permanently enjoined it and its officers from collecting any fee from plaintiff and others similarly situated.

The Board was organized in 1942 under the provisions of Chapter 41, Acts of 1942, Sections 212.350 to 212.630, and 212.990 KRS. This act created the Board as a public corporation, and gave it 'exclusive control and operation'_____'of all matters relating to institutions safeguarding the public health' in Louisville and Jefferson County, 'and all other matters affecting public health,' including 'the adoption of remedial measures, and the enforcement of all laws and regulations affecting public health' therein. 212.370, KRS. The Board is given power to 'make appropriate rules and regulations and do all things reasonable or necessary effectively to carry out the work and properly to perform the duties intended or required' by Chapter 41. 212.350, KRS.

The act further provides 'it shall be the duty of the board created herein to make and enforce all reasonable regulations controlling or affecting the health of citizens and residents' of Louisville and Jefferson County, in conformity with the provisions of Chapter 41, 'the laws of the Commonwealth of Kentucky, the rules and regulations of the State Board of Health of Kentucky, and the ordinances of said municipalities now or hereafter in effect.' 212.600, KRS.

The Board is vested with the functions, obligations, powers, and duties of the county and city boards or departments of health. 212.350, KRS. Provision is made for the transfer to it of all property of the city and county used exclusively and directly in the maintainance of public health, including hospitals and clinics. 212.360, KRS. Since 1942 the Board has operated and maintained the Louisville General Hospital Waverly Hills Tuberculosis Sanatorium, clinics and health centers; and has generally carried out an extensive program in the care and protection of the public health.

The finances of the Board are provided by Section 212.470, KRS, which declares: 'In order that there may be a fund of not less than $1,000,000 annually to carry out the purposes' of the act, the fiscal court of the county is required to levy annually a tax which will produce a sum of not less than $250,000, and the city is required to levy annually a tax to produce a sum of not less than $750,000, which taxes shall be paid to the Board. The statute also permits the Board to receive and accept gifts, donations, contributions, or endowments. 212.490, KRS.

In 1942 the Board adopted rules and regulations governing all food handling establishments in Louisville and Jefferson County. These made provision for the periodic sanitary inspection of such establishments. Inspections were conducted until August 15, 1947, when it became evident that the funds of the Board were inadequate to continue this phase of health service. A plan was then devised and put into effect by Rule IX requiring food establishments to obtain permits authorizing the sale of food. Rule X, the one here in controversy, provided that every food establishment should pay to the Board an annual permit fee of not less than $12 nor more than $60, depending upon the number of persons employed in each place of business. It is specifically declared that 'These fees shall be used only for the execution of the provisions' of the Board's rules and regulations, and the 'base price of the permit fee' shall be fixed in conformity with the 'cost of inspection.'

Plaintiff does not complain of the requirement of Rule IX that a permit be obtained in order to conduct the business of food handling or dispensation. This rule is perhaps justified under Section 217.280, KRS, or the regulations of the State Board of Health, or the general provisions of Chapter 41; but we are not called upon to, and do not decide, that question. The only issue we have before us is whether or not the Board has authority to require of food establishments the payment of any fee to help defray the cost of administering its health regulations. The reasonableness of the fee is not in controversy, as the question is one of power and not the extent of its exercise.

The Board takes the position that: (1) It is specifically granted power to promulgate rules and regulations regarding the public health, (2) this authorizes the exercise of a police power, and (3) the exaction of fees to defray the cost of carrying out this particular inspection program is a necessary incident to the exercise of that power. The Board asserts that it has 'the same power to enact binding regulations relating to the public health that legislative bodies of municipal corporations proper have.'

At the outset it is apparently conceded that a charge of this sort is not a tax, and our question does not involve the taxing power. See Pure Milk Producers & Distributors Ass'ns et al. v. Morton et al., 276 Ky. 736, 125 S.W.2d 216; and Hartman et al. v. City of Louisville et al., 282 Ky. 487, 138 S.W.2d 948. We shall also accept the general proposition that a municipality has the implied right in the exercise of police power to impose reasonable charges to cover the cost of supervising businesses subject to regulation. See 38 Am.Jur., Municipal Corporations, Sections 347-352, and Boyd v. City of Louisville, 178 Ky. 354, 198 S.W. 927. As far as we have been able to determine, however, the particular question we have before us is quite novel.

There are two aspects of the problem: (1) Whether or not the imposition of a permit fee involves the exercise of legislative power which may not be constitutionally delegated to the Board, and (2) if the power could be delegated, whether or not it was in fact granted by Chapter 41.

1. It is fundamental that the right to fix these fees is an incident to the exercise of a police power. Such power is sovereign and legislative. It is an inherent and plenary authority vested in the Commonwealth, given expression by legislative enactment. It is the tap root of government, out of which grow internal regulations necessary to preserve the public order, health, safety, and morals. See Cooley's Constitutional Limitations, 8th ed. Vol. 2, Chapter XVI; 11 Am.Jur., Constitutional Law, Section 245, 247; Whitney et al. v. Newbold et al., 270 Ky. 209, 109 S.W.2d 406; Sweet v. Rechel, 159 U.S. 380, 16 S.Ct. 43, 40 L.Ed. 188.

It has long been recognized that certain police powers may be, and properly should be, delegated to municipalities in order that they may carry on local self government. See 37 Am.Jur., Municipal Corporations, Section 279; City of Hazard v. Duff et al., 287 Ky. 427, 154 S.W.2d 28; Nourse v. City of Russellville et al., 257 Ky. 525, 78 S.W.2d 761. In Barrow et al. v. Bradley, Mayor, et al., 190 Ky. 480, 227 S.W. 1016, the Court stated, at page 482 of 190 Ky. at page 1018 of 227 S.W.:

'When, therefore, the power to create municipalities is vested in the state Legislature, the power is implied if not expressed to confer and define local legislative power, and is practically unlimited in the absence of constitutional restrictions.'

Further the opinion states, at page 483 of 190 Ky. at page 1018 of 227 S.W.:

'It is apparent therefore that our state Legislature has express power to delegate to cities and towns all powers needful for local self-government.'

See also Baker, Mayor, et al. v. Combs, 194 Ky. 260, 239 S.W. 56, and City of Pineville v. Marshall et al., 222 Ky. 4, 299 S.W. 1072, recognizing the constitutional right of the state legislature to delegate legislative authority to a municipality; and Hahn v. City of Newport et al., 175 Ky. 185, 194 S.W. 114, wherein it was recognized that the preservation of the public health called for legislative functions in the exercise of police power.

On the other hand, Sections 27 and 28 of our Constitution forbid the delegation of legislative power to administrative boards or agencies, which are a part of the executive branch of state government. In Goodpaster, Director of Insurance, v. Southern Ins. Agency, Inc., 293 Ky. 420, at page 423, 169 S.W.2d 1, at page 3, we stated:

'Without doubt, the Legislature may authorize a board or administrative officer, such as appellee, in charge of some governmental affairs, to make police regulations, but it cannot abdicate its own police power on any subject and confer such power on an officer or a board to his or its uncontrolled discretion.'

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