Jones, Chief Safety Inspector v. Russell

• Decision Date: 08 May 1928
• Parties: Jones, Chief Safety Inspector v. Russell.
• Court: United States State Supreme Court — District of Kentucky

224 Ky. 390

Jones, Chief Safety Inspector v. Russell.

Court of Appeals of Kentucky. Chancery Branch, Second Division.

Decided May 8, 1928.

1. Master and Servant. — Safety of workmen engaged in hazardous employment is a legitimate subject of legislation under the police

power of the state; essential predicate of police power being health, morals, safety, and general welfare of the people.

2. Constitutional Law. — Act 1926, c. 124, requiring proper scaffolding in construction work in cities of first and second classes, as defined by Ky. Stats., Supp. 1926, sec. 2740, held not in violation of Constitution, secs. 59, 60, as special or class legislation or a denial of equal protection of the law under Fourteenth Amendment of Federal Constitution; Constitution of Kentucky itself by section 156 recognizing difference for governmental purposes in cities, and dividing them for purposes of organization and government in six classes, based solely on population.

3. Constitutional Law. — Legislature is allowed great freedom of discretion, where right and responsibility of regulation is reposed in exercise of police power, and increase of population in limited localities increases problems of government, and thereby powers are correspondingly augmented.

4. Municipal Corporations. — Various municipalities of the state possess police power to the extent it may be delegated to them by the General Assembly.

5. Municipal Corporations. — General Assembly may enact directly for cities and towns any law that it could indirectly enact by delegating to them the power to pass it.

6. Constitutional Law. — Legislative power may be exercised to protect the public generally, or some particular class of persons if work subjects them to peculiar hazards, and whether general public or particular class is to be protected does not alter the reasonableness of classification of subject on which the law operates.

7. Constitutional Law. — Differences, as well as resemblances, must be considered in ascertaining the reasonableness of a classification, within meaning of Constitution, secs. 59, 60, and equal protection clause of United States Constitution.

8. Constitutional Law. — Classification based on variance in relations of men need not be constituted by an exact or scientific exclusion or inclusion of persons, places, or things, and degree of evil may be decisive on question of classification for regulations under the police power.

9. Constitutional Law. — As regards classification, so long as constitutional guaranties are observed, Legislature is unhampered in its discretion in dealing with practical exigencies, arising by reason of increased complexity of problems from constantly expanding power of government.

10. Constitutional Law. — If Legislature exerts a power within scope of its authority under Constitution, the courts have no right to pass on defects or excellence of the act, or the propriety or impropriety, wisdom or folly, of its enactment.

Appeal from Jefferson Circuit Court

FIELDS, BYERS & MOORE and GARDNER K. BYERS for appellant.

BECKHAM, HAMILTON & BECKHAM and WOODWARD, WARFIELD & HOBSON for appellee.

OPINION OF THE COURT BY JUDGE WILLIS.

Reversing.

The Legislature at its session in 1926 passed an act to require the proper construction, use, and maintenance of scaffolding, counterfloors, staging, rigging, etc., in all construction work in cities of the first and second classes, and to provide for the appointment and to prescribe the duties of a chief and deputy safety inspector of scaffolding and counterfloors in such cities. Acts 1926, c. 124, p. 610. Louisville is the only city of the first class in the state, but there are five cities of the second class: Lexington, Covington, Newport, Paducah, and Ashland. Section 2740, Ky. Stats., Supp. 1926.

The city of Louisville enacted an ordinance to effectuate the purposes of the act of 1926, and Oscar Jones was appointed and qualified as chief safety inspector of scaffolding and counterfloors. This action was filed in the Jefferson circuit court by J.F. Russell, a contractor engaged in the building business in the city of Louisville, to enjoin the inspector from performing his duties under the act, on the ground that the statute creating the office is unconstitutional. The chancellor sustained the contention of Russell and the inspector appeals.

It is apparent from the provisions of the statute that it was enacted under the police power of the state to promote the safety of workmen engaged in construction work which required them to make use of the structures described in the statute. It is not disputed that the safety of workmen engaged in hazardous employments is a legitimate subject of legislation under the police power of the state. The essential predicate of the police power is the health, morals, safety, and general welfare of the people. The courts do not undertake to define the limits, or mark the boundaries, of that power, but, by the process of inclusion and exclusion, await the impact of facts unforeseen, and develop the doctrine in the light of events and experience. It is the power of government to deal with any exigency, and the power is always equal to the emergency. Berea College v. Commonwealth, 123 Ky. 209, 94 S.W. 623, 29 Ky. Law Rep. 284, 124 Am. St. Rep. 344, 13 Ann. Cas. 337, affirmed by United States Supreme Court, 211 U.S. 45, 29 S. Ct. 33, 53 L. Ed. 81; Commonwealth v. Campbell, 133 Ky. 50, 117 S.W. 383, 24 L.R.A. (N.S.) 172, 19 Ann. Cas. 159; Commonwealth v. Smith, 163 Ky. 227, 173 S.W. 340, L. R.A. 1915D, 172; Rawles v. Jenkins, 212 Ky. 287, 279 S.W. 350; Commonwealth v. Reinecke Coal Min. Co., 117 Ky. 885, 79 S.W. 287, 25 Ky. Law Rep. 2027; Workmen's Compensation Board v. Abbott, 212 Ky. 123, 278 S.W. 533, 47 A.L.R. 789; Ky. Board of Pharmacy v. Cassidy, 115 Ky. 690, 74 S.W. 730, 25 Ky. Law Rep. 102; Lawton v. Steele, 152 U.S. 133, 14 S. Ct. 499, 38 L. Ed. 385; Holden v. Hardy, 169 U.S. 366, 18 S. Ct. 383, 42 L. Ed. 780; C.B. & Q.R.R. Co. v. McGuire, 219 U.S. 549, 31 S. Ct. 259, 55 L. Ed. 328; Erie R. Co. v. Williams, 233 U.S. 685, 34 S. Ct. 761, 58 L. Ed. 1155, 51 L.R.A. (N.S.) 1097; Muller v. Oregon, 208 U.S. 412, 28 S. Ct. 324, 52 L. Ed. 551, 13 Ann. Cas. 957; Riley v. Massachusetts, 232 U.S. 671, 34 S. Ct. 469, 58 L. Ed. 788; Hawley v. Walker. 232 U.S. 718, 34 S. Ct. 479, 58 L. Ed. 813; Miller v. Wilson, 236 U.S. 373, 35 S. Ct. 342, 59 L. Ed. 682, L. R.A. 1915F, 829; Ozan Lbr. Co. v. Union County Bank, 207 U.S. 251, 28 S. Ct. 89, 52 L. Ed. 195; Keokee Consol. Coke Co. v. Taylor, 234 U.S. 224, 34 S. Ct. 856, 58 L. Ed. 1288; L. & N.R. Co. v. Melton, 218 U.S. 36, 30 S. Ct. 676, 54 L. Ed. 921, 47 L.R.A. (N.S.) 84, affirming 127 Ky. 276, 105 S.W. 366, 32 Ky. Law Rep. 51, 110 S.W. 233, 33 Ky. Law Rep, 321, 112 S.W. 618, 33 Ky. Law Rep. 1042; Liberty Warehouse v. Burley Tobacco Growers' Co-op. Ass'n, 208 Ky. 643, 271 S.W. 695, affirmed by United States Supreme Court (48 S. Ct. 291, 72 L. Ed. ___) on February 20, 1928.

Conceding the power of the Legislature in the premises, the particular statute here involved is challenged on the ground that it is special or class legislation in violation of sections 59 and 60 of the Constitution of Kentucky and a denial of the equal protection of the laws guaranteed by the Fourteenth Amendment to the Constitution of the United States. The argument is rested on the restriction of operation of the act to cities of the first and second classes, and the exemption from its provisions of persons engaged in the same business in all parts of the state not included in such cities. The parties are in practical agreement that the Legislature in making police regulations has the right to make classifications based upon natural and reasonable distinctions, but is without right to exercise the power to classify arbitrarily and without any reasonable basis inherent in the objects of the classification. The disagreement arises on the reasonableness of the classification made by cities alone as was done in this instance. It is said that there is no substantial difference in the business regulated in cities of the first and second classes and the same business in the other cities and unincorporated territory of the commonwealth. The danger, it is urged, is coextensive with the state and the need of regulation of the particular business is not greater in the cities designated by the act.

The Constitution itself recognizes a difference for governmental purposes in cities with a population exceeding 20,000 inhabitants and those with a less number of people. The cities and towns of this commonwealth, for the purposes of their organization and government, are divided into six classes, based solely on population. Constitution, section 156. The same standard is selected for the limitation on indebtedness, rates of taxation, representation in the General Assembly, composition of courts, the administration of justice, and for the exercise of many of the functions of government. We know that the increase of population in limited localities increases the problems of government and the powers thereof are correspondingly augmented. Dangers must be dealt with where they are most prevalent, and it is reasonable to allow great freedom of discretion to the legislative power where the right and responsibility of regulation is reposed. Commonwealth v. Jarrett, 213 Ky. 618, 281 S. W. 805; Miller v. Wilson, 236 U.S. 373, 35 S. Ct. 342, 59 L. Ed. 628, L.R.A. 1915F, 829.

This court has upheld classification by cities as a reasonable basis for the creation of a unit in local option elections (Board of Trustees of New Castle v. Scott, 125 Ky. 568, 101 S.W. 951, 30 Ky. Law Rep. 894), remarking that "all matters of mere police regulation may properly be so classified." It has been held competent for the Legislature to regulate barbering in the first, second, and third class cities, omitting the remainder of the state. Commonwealth v. Ward, ...