Mansbach Scrap Iron Co. v. City of Ashland

• Decision Date: 26 September 1930
• Citation: 235 Ky. 265
• Court: Supreme Court of Kentucky
• Parties: Mansbach Scrap Iron Company v. City of Ashland et al.

235 Ky. 265

Mansbach Scrap Iron Company v.City of Ashland et al.

Court of Appeals of Kentucky.

Decided June 17, 1930.

Rehearing Denied September 26, 1930.

1. Licenses. — Ordinance requiring junk dealer to consent to inspection and search of premises as prerequisite to license was not unconstitutional as exercise of arbitrary power over liberty and property (Constitution, secs. 2, 181; Ky. Stats., secs. 3038, 3058-2).

2.Searches and Seizures.— Ordinance requiring junk dealer to consent to inspection and search of premises as prerequisite to license was not unconstitutional as invading security against unreasonable search (Constitution, secs. 10,181;Ky. Stats., secs. 3038,3058-2).

3.Municipal Corporations.— City is political subdivision of state created as convenient agency for exercise of governmental powers intrusted to it.

4.Municipal Corporations.— Municipality within limits of sovereignty has wide discretion in determining policy and measures necessary for safety and good order.

5.Constitutional Law.— Constitutional limitations on use of police power are dependent on character of evil and degree of danger sought to be avoided.

6.Constitutional Law.— Legislation may not, under guise of exerting police power, arbitrarily impose unnecessary and unlawful restrictions on use of private property.

7.Constitutional Law.— Whether legislation has substantial relation to public health, safety, morals, or welfare is for determination of court.

8.Constitutional Law.— Public interest is to be preferred over property interest of individual, even to extent of its destruction, if necessary.

9.Criminal Law.— Ordinarily, consent or waiver to production of search warrant obtained through deceit or coercion is not voluntary, and evidence obtained thereunder is inadmissible.

Appeal from Boyd Circuit Court.

WOODS, STEWART, NICKELL & SMOOT for appellant.

JOHN T. DIEDERICH for appellees.

OPINION OF THE COURT BY COMMISSIONER STANLEY.

Affirming.

The appellant, Joseph Mansbach, doing business as Mansbach Scrap Iron Company, is questioning the constitutionality of provisions of an ordinance of the city of Ashland requiring, as a prerequisite to obtaining a license to do business as a dealer in junk, that he consent in writing to the inspection and search of his business premises by police officers of the city.

The objectionable portion of the ordinance is as follows:

"That all applicants for permits for the operation of junk shops, automobile wrecking shops and pawn shops in the city of Ashland, Ky., shall at the time of making application for said permits make and execute with the Clerk of the City of Ashland a permit signed by the applicant providing that the Police Department of the City of Ashland, Kentucky, by and through the Chief of the Department, or any member thereof, may inspect and search the said shop or place of business.This permit for inspection and search shall be filed with the Clerk and shall be attached to said application applied for and shall be considered a part of said application."

Pursuant to this ordinance there was prepared a form of application for license for conducting the three classes of business which called for the disclosure of certain facts and included this stipulation:

"I do solemnly swear that my business conducted at. . . . . . ., in the City of Ashland, Kentucky, shall be operated in a quiet, orderly and law abiding manner, and that the Chief of Police, or any member of the Police Department shall have permission to visit and inspect and search the place of business at any time."

The appellant struck out the consent provision in making his application, and upon refusal of the city clerk to issue the license, he brought this suit against the city and certain officials.He asked that the portion of the ordinance objected to be held invalid and for injunctive relief.

The grounds upon which the validity of the provision is assailed are that it contravenes sections 2and10 of the Constitution, the former because it is the exercise of an arbitrary power over the liberty and property of freemen, and the latter as invading the security against unreasonable searches.

In our approach to a consideration of the issue it is well to note that a city is a political subdivision of the state, created as a convenient agency for the exercise of such governmental powers as may be intrusted to it.The city of Ashland derives its authority in this instance from section 181 of the Constitutionandsections 3038and3058-2 of the Statutes, the latter section giving specific power to "license, tax and regulate" junk dealers and secondhand dealers, and also to "license, tax and suppress" pawnbrokers.

The police power is an attribute of sovereignty, and within the limits of its sovereignty a municipality has wide discretion in determining its own policy and what measures are necessary for the protection and promotion of the safety and good order of its people.Its use of the power to that end in regulating, restricting, and prohibiting commercial and personal activities is multifarious.The constitutional limitations on that use are, obviously, dependent upon the character of evil and degree of danger sought to be avoided.If there is any foundation for the regulation, or if the nature of the business or calling is such that a reason can be given for apprehending a public peril from its unrestricted pursuit, then the action of the legislative body is conclusive.But it has often been declared that legislation may not under the guise of exerting the police power arbitrarily, or after the manner of a despot, impose restrictions that are unnecessary and unlawful upon the use of private property or the pursuit of useful activities.This measure, exacting a consent to reasonable surveillance of the place of business, must therefore find its justification in bearing a substantial relation to public health, safety, morals, or welfare.Hoblitzel v. Jenkins, 204 Ky. 122, 263 S.W. 764.Whether or not it has that relationship is for the courts to determine.Burns Baking Co. v. Bryan, 264 U.S. 504, 44 S. Ct. 412, 68 L. Ed. 813, 32 A.L.R. 661.

There is a marked distinction between enterprises or commodities which are: (1) Dangerous or injurious per se, which may be prohibited; (2) those which are potentially so, which may only be regulated; and (3) those which are instrinsically harmless, which are not subject to the exercise of police power.These distinctions are noticed in Tolliver v. Blizzard, 143 Ky. 773, 137 S.W. 509, 34 L.R.A. (N.S.) 890, a case which related to an ordinance dealing with nonintoxicating soft drinks.

The Bill of Rights grants no privileges.It conserves them subject, however, to the dominant rights of the people as a whole.The Supreme Court has many times declared that where the public interest is involved it is to be preferred over the property interest of the individual, even to the extent of its destruction, if necessary.Miller v. Schoene, 276 U.S. 272, 48 S. Ct. 246, 72 L. Ed. 508.This bulwark of liberty is not stagnant or inelastic.The police power — though assuredly exercised in subordination or supplement to the principles of the Constitution — permits progress and makes of the Bill of Rights a growing and living instrument.It seeks to preserve a proper balance between the rights of all the people on the one hand and the rights of the individual on the other.Thus it is written in Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S. Ct. 114, 71 L. Ed. 303, 54 A.L. R. 1016:

"Regulations, the wisdom, necessity, and validity of which, as applied to existing conditions, are so apparent that they are now uniformly sustained, a century ago, or even half a century ago, probably would have been rejected as arbitrary and oppressive. . . .In this there is no inconsistency, for, while the meaning of constitutional guaranties never varies, the scope of their application must expand or contract to meet the new and different conditions which are constantly coming within the field of their operation.In a changing world it is impossible that it should be otherwise.But although a degree of elasticity is thus imparted, not to the meaning, but to the application of constitutional principles, statutes and ordinances, which, after giving due weight to the new conditions, are found clearly not to conform to the Constitution, of course, must fall."

Some of these expressions were adopted by this court in Fowler v. Obier, 224 Ky. 742, 7 S.W. (2d) 219.

The Constitution, dealing as it does in broad outlines and general formulae, through interpretation and a practical adaptation is made conformable to an existing sense of public right and necessity.

We are not unaware of the prevalence of crime, organized and unorganized, and the need for checking its operations in every legal way.The nature of the business of dealing in junk and secondhand goods makes it peculiarly the subject of strict regulation, for it affords a convenient and ready market for the disposition of stolen goods.It is, to be sure, a legitimate business, meeting a public demand, but it is the history of experience that it is sometimes conducted in a dubious fashion and becomes a place where thieves turn into cash their ill-gotten plunder.It is, perhaps more often, an innocent receiver of contraband goods.Hyman v. Boldrick, Judge, 153 Ky. 77, 154 S.W. 369, 44 L.R.A. (N.S.) 1039;Co-Operative Junk Co. v. Board of Police Commissioners, 38 Cal. App. 676, 177 P. 308.Moreover, such places garner inflammable material and gather disease-laden substances.It is therefore a business having a potential danger to public peace, to public safety, and to public health.10 R.C.L. 862.It is not surprising then that junk dealers and pawnbrokers have called forth regulations stricter and more extreme than most any other business short of annihilation or prohibition altogether.Since 1878 this state has had...