Jones v. Russell

• Decision Date: 08 May 1928
• Citation: 224 Ky. 390,6 S.W.2d 460
• Parties: JONES, Chief Safety Inspector, v. RUSSELL.
• Court: Kentucky Court of Appeals

6 S.W.2d 460

224 Ky. 390

JONES, Chief Safety Inspector, v. RUSSELL.

Court of Appeals of Kentucky

May 8, 1928

Appeal from Circuit Court, Jefferson County, Chancery Branch, Second Division.

Action by J. F. Russell against Oscar Jones, Chief Safety Inspector for the City of Louisville. Judgment for plaintiff, and defendant appeals. Reversed.

Fields Byers & Moore, and Gardner K. Byers, all of Louisville, for appellant.

Beckham Hamilton & Beckham and Woodward, Warfield & Hobson, all of Louisville, for appellee.

WILLIS J.

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. Stat. 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 a 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. 628, 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 Co. 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, § 156. The same standard is selected for the limitations 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, 136 Ky. 146, 123 S.W. 673. In the latter case the court said:

"When the Legislature comes to exercise authority under this power [police power], it may deal with the persons, trades, or occupations subject to the power doing business in one or more of the classes into which the cities are divided without extending its supervision to persons engaged in similar trades, occupations, or business in other classes or in other parts of the state. An act imposing limitations upon the individual in the pursuit of a business that comes within the police power will not be condemned as class or discriminatory legislation because it is limited to one or more classes of cities."

Like classification has been adopted and approved with reference to the regulation of the employment of newsboys ( Commonwealth v. Lipginski, 212 Ky. 366, 279 S.W. 339; Commonwealth v. Jarrett, 213 Ky. 618, 281 S.W. 805), and the business of plumbers (City of Louisville v. Coulter, 177 Ky. 242, 197 S.W. 819, L. R. A. 1918A, 811). Cf. Commonwealth v. Thomas' Adm'r, 140 Ky. 796, 131 S.W. 797.

Classification by locality is recognized and allowed in the racing laws of this state (State Racing Com. v. Latonia Agricultural Ass'n, 136 Ky. 173, 123 S.W. 681, 25 L. R. A. [N. S.] 905) and in those of other states (12 C.J.§ 858, p. 1133; Debardelaben v. State, 99 Tenn. 649, 42 S.W. 684).

It is clear from our decisions that the various municipalities of the state possess police power to the extent it may be delegated to them by the General Assembly. Wells v. Town of Mt. Olivet, 126 Ky. 131, 102 S.W. 1182, 31 Ky. Law Rep. 576, 11 L. R. A. (N. S.) 1080; City of Versailles v. Ky. Highland R. R. Co., 153 Ky. 83, 154 S.W. 388; Gleason v. Weber, 155 Ky. 431, 159 S.W. 976; Mullins v. Nordlow, 170 Ky. 169, 185 S.W. 825; United Fuel & Gas Co. v. Commonwealth, 159 Ky. 34, 166 S.W. 783; Town of La Grange v. Overstreet, 141 Ky. 43, 132 S.W. 169, 31 L. R. A. (N. S.) 951; City of Owensboro v. Evans, 172 Ky. 831, 189 S.W. 1153; Hyman v. Boldrick, 153 Ky. 77, 154 S.W. 369, 44 L. R. A. (N. S.) 1039; Tolliver v. Blizzard, 143 Ky. 773, 137 S.W. 509, 34 L. R. A. (N. S.) 890; Lampton, etc., v. Wood, 199 Ky. 250, 250 S.W. 980; Harris v. City of Louisville, 165 Ky. 559, 177 S.W. 472, Ann. Cas. 1917B, 149; Buchanan v. Warley, 245 U.S. 60, 38 S.Ct. 16, 62 L.Ed. 149, L. R. A. 1918C, 210, Ann. Cas. 1918A, 1201.

An examination of the various charters of the six classes of cities in this state will disclose a variety of...