McCown v. Gose

• Decision Date: 07 June 1932
• Citation: McCown v. Gose, 244 Ky. 402, 51 S.W.2d 251 (Ky. Ct. App. 1932)
• Parties: McCOWN v. GOSE et al.
• Court: Kentucky Court of Appeals

51 S.W.2d 251

244 Ky. 402

McCOWN v. GOSE et al.

Court of Appeals of Kentucky

June 7, 1932

Appeal from Circuit Court, Breathitt County.

Suit by C. C. Gose and others against S. C. McCown. From an adverse judgment, defendant appeals.

Judgment reversed, with directions.

W. L Kash, of Jackson, for appellant.

O. H Pollard, of Jackson, for appellees.

CREAL C.

This appeal is from a judgment of the Breathitt circuit court enjoining S. C. McCown, defendant below, from constructing and maintaining a filling station upon a lot which he owns in Jackson, Ky. a city of the fourth class. The lot in question is in a block formed by Main, Jail, College, and Jefferson streets, and extends the full width of the block about midway between Jail and Jefferson streets. That portion of Main street along and near this block is a portion of United States Highway No. 15, known as the Appalachian Highway extending from Chicago to Charleston, S. C. For something over one-third of the distance in front of this lot it is 19 feet in width from curb to curb, and for the remainder of the distance is 37 feet in width.

Undisputed facts show that the city council granted to appellant a permit to erect a stone or brick garage upon his lot, and while it was not so specified, it seems to have been the understanding that this permit included the right to erect and maintain a filling station in connection with the garage. According to plans of appellant, the garage building will be about 20 feet from Main street with the filling station in the intervening space.

In their petition seeking injunctive relief, appellee C. C. Gose and a number of other citizens and property owners, plaintiffs below, allege that appellant has not obtained the written consent of two-thirds or of any of the owners of the property located in the block to erect a filling station upon his lot, and that the erection thereof without such consent will be in direct violation of chapter 100, Acts of the General Assembly of Ky. 1930 (Ky. Statutes, § 2741r, Baldwin's 1931 Supplement).

As further grounds for the relief sought, it is alleged that the erection of the garage and filling station will necessarily obstruct and hinder traffic, and thereby become a menace and danger to the safety and lives of pedestrians and motorists and of property owners and residents whose property and homes are located on the block, and who have to pass appellant's lot in going to and from the post office, courthouse, and the business section of the city; that it will cause such continual congestion of traffic as will create and become a public nuisance. So much of the petition as sought to enjoin the erection of the garage was dismissed.

It is not revealed in the record nor in brief filed by counsel whether the lower court's judgment was based on the statute invoked by appellees or upon the general allegations and proof as to the conditions that would be created by the erection and maintenance of the filling station. However, we assume that the statute in question had a controlling effect in determining the court's judgment, since, in our opinion, the general allegations of the petition are not supported by sufficient or any evidence to warrant or support the judgment. Inferentially, we gather from brief for appellees that the decision of the lower court turned on the question of validity of the act since the brief is prefaced with the statement that "the sole question presented by the appeal is the validity of an act passed at the session 1930 of the Legislature, chapter 100, p. 359, Acts 1930." So much of that act (Ky. St. Supp. 1931, § 2741r) as is pertinent here reads: "That it shall be unlawful for any person, firm or corporation to erect a filling station in any city of the third, fourth or fifth class, in a block in which the majority of the property is held and occupied as residence property, without first obtaining the written consent of the owners of two-thirds of property in such block. The word 'block' as used herein shall be construed to include both sides of any street between intersecting streets. ***"

Coming directly to a discussion of the validity of the act, which is the sole question to be determined, it may be said at the outset that, if it is to be sustained, it must be under that inherent power of the state known and recognized in our system of jurisprudence and government as the "police power," since it cannot look elsewhere for justification. As had been pointed out by this court, "it is much easier to perceive and realize the existence and sources of this power than to mark its boundaries, or prescribe limits to its exercise." Commonwealth v. Payne Medicine Co., 138 Ky. 164, 127 S.W. 760, 761. And, while "no jurist has dared to state the limit in law of that quality in government which is exercised through what is termed the 'police power,"' Berea College v. Commonwealth, 123 Ky. 209, 94 S.W. 623, 624, 29 Ky. Law Rep. 284, 124 Am. St. Rep. 344, 13 Ann. Cas. 337; Id., 211 U.S. 45, 29 S.Ct. 33, 53 L.Ed. 81, broadly speaking, it embodies the right of protection and preservation of government and society, and may be invoked for the regulation or even the prohibition of such business enterprises as may endanger the life, health, safety, or morals of the community, but, even in attempting to effect those ends, it cannot reach beyond the bounds of urgent public necessity.

While in the exercise of the police power the Legislature is given a wide field and many subjects with which it may deal, yet the people of the state in adopting a Constitution fixed certain limitations upon that body, and in the first 26 sections thereof, known as the Bill of Rights, set out certain essential and fundamental principles of free government which shall remain inviolate and which may not be abridged.

In the second section, it is declared that "absolute and arbitrary power over the lives, liberty and property of freemen exists nowhere in a republic, not even in the largest majority," and the twenty-sixth section provides that "to guard against transgression of the high powers which we have delegated, we declare that everything in this Bill of Rights is excepted out of the general powers of government, and shall forever remain inviolate; and all laws contrary thereto, or contrary to this Constitution, shall be void."

In determining whether by this act the Legislature has gone beyond bounds fixed by the Constitution, we are not without precedent in this and other jurisdictions. In the case of City of Monticello v. Bates, 169 Ky. 258, 183 S.W. 555, 558, the court, in holding to be invalid an ordinance providing that no persons shall erect a building in a town without permission of the Board of Trustees thereof, said: "The rule is well established that municipal ordinances, placing restrictions upon lawful conduct or the lawful use of property, must, in order to be valid, specify the rules and conditions to be observed in such conduct or business; and must admit of the exercise of the privilege of all citizens alike who will comply with such rules and conditions; and must not admit of the exercise, or of an opportunity for the exercise, of any arbitrary discrimination by the municipal authorities between citizens who will so comply."

And in the case of Commonwealth v. House, 177 Ky. 829, 198 S.W. 218, the court, in discussing a similar ordinance, said "It gives no effect to the character of the building, and prescribes no standard with which the citizens must comply, or by which the discretion of a council is to be controlled. On the...