Polsgrove v. Moss

• Decision Date: 17 June 1913
• Parties: POLSGROVE, Mayor, et al. v. MOSS.
• Court: Kentucky Court of Appeals

157 S.W. 1133

154 Ky. 408

POLSGROVE, Mayor, et al. v. MOSS.

Court of Appeals of Kentucky.

June 17, 1913

Appeal from Circuit Court, Franklin County.

Action by Dulin Moss against James H. Polsgrove, Mayor of the City of Frankfort, and others. From a judgment for plaintiff defendants appeal. Reversed and remanded.

James H. Polsgrove, of Frankfort, for appellants.

Scott &amp Hamilton, of Frankfort, for appellee.

HOBSON C.J.

The act for the government of cities of the third class including the city of Frankfort provides: "The common council of each of said cities shall, within the limitations of the Constitution of the state and this act, have power by ordinance: *** To make all police regulations to secure and protect the general health comfort, convenience, morals and safety of the public; and to define, declare, prevent suppress and remove nuisances either within the city or within one mile thereof. *** To impose penalties upon the owners, occupant or agent of any house, wall, sidewalk, or other structure which may be considered dangerous or detrimental to the public, unless after due notice, to be fixed by ordinance, same be removed or repaired; and to remove or repair same at owner's expense when suffered to remain contrary to ordinance." Section 3290, Ky. St. subsecs. 16, 26.

Under the power thus conferred the common council of the city of Frankfort enacted the following ordinance: "An ordinance to prohibit the maintaining, use, occupancy or letting of dwellings which are so unsanitary or out of repair as to be dangerous or unhealthy, and providing for the abatement thereof.

"Be it ordained by the common council of the city of Frankfort:

"Section 1. That no building, house or room, intended or designed for dwelling purposes, which is or may hereafter become, so unsanitary or out of repair as to render it unfit for habitation, or which is or may become unsafe for occupancy, or that may be considered dangerous or detrimental to the public, or injurious to the health or morals of the community, shall be rented, leased, let, hired out or permitted to be used, either with or without compensation.

"Sec. 2. That no building, house or room, intended or designed for dwelling purposes, which is or may become so unsanitary or out of repair as to render it unfit for habitation, or which is or may become unsafe for occupancy, or may be considered dangerous or detrimental to the public, or injurious to the health or morals of the community, shall be maintained or occupied.

"Sec. 3. Whenever any building, house or room, intended or designed for dwelling purposes, shall be unfit for habitation for any of the causes named in sections one and two of this ordinance, the occupant or occupants thereof shall vacate within ten days, and the owner or owners shall abate and remove the same within twenty days after receiving from the mayor notice or notices so to do which notice or notice shall set forth the grounds therefor.

"Sec. 4. Upon complaint in writing made to him by the health officer of the city, or by petition filed with him, signed by three or more persons, owners of real estate residing in the city he shall cause to be served, by the chief of police, in writing upon the occupants and owners of any such premises, the notice or notices provided for by section three, to be served by delivering or offering to deliver a copy to the person to whom it is directed, or if such person cannot be found, by delivering a copy to his agent, or by affixing such copy to the front door of the premises sought to be abated.

"Sec. 5. Upon the failure of the owner or owners to abate and remove any such building, house or room within the time required by section three, he or they shall be subject to a fine of not less than five nor more than twenty dollars, and ten dollars for each succeeding twenty-four hours it remains unabated, and it shall be the duty of the mayor, at the expiration of said twenty days, to cause a warrant or summons against such owner or owners to be issued by the police judge, charging a violation of this ordinance, and if upon a trial of the charge the party against whom the said warrant or summons was issued, shall be convicted, the judgment of conviction shall order the abatement and removal of the building, house or room designed in said warrant. Provided, that if the owner be a nonresident of the state or county of Franklin, he shall be proceeded against by warning order, as prescribed by the Civil Code of the state in proceedings against nonresidents, and the fine fixed by this section shall not be imposed and the judgment of the court shall only require the abatement and removal of the structure so designated.

"Sec. 6. Whenever there shall be a conviction under the preceding section, it shall be the duty of the mayor, in the name of the city, to contract with some suitable person or persons to abate and remove the structure designated in the warrant or summons upon which said conviction was had, at the cost of the owner or owners thereof, which cost, if not paid by the owner or owners, may be paid by the city, and the amount so expended shall be recovered by the city by suit in any court of competent jurisdiction.

"Sec. 7. Any tenant or occupant, not the owner of the premises, who shall violate section three shall be fined not less than two nor more than ten dollars, and each twentyfour hours after ten days notice, as required therein, shall constitue a separate offense.

"Sec. 8. All ordinances or parts of ordinances in conflict herewith are hereby repealed, and this ordinance shall take effect and be in force from and after its passage and approval by the mayor."

After the ordinance had taken effect, the health officer of the city made complaint in writing to the mayor that a certain house owned by Dulin Moss and intended for dwelling purposes was so unsanitary and out of repair as to render it unfit for habitation, unsafe for occupancy, and dangerous to the health and morals of the community. The mayor gave notice to Moss as provided in the ordinance notifying him within 20 days after receiving the notice to vacate, abate, or remove the building. Moss thereupon brought this suit against the mayor, the health officer, and common council of the city, alleging that the city was without authority to pass the ordinance; that it was void; that to enforce the ordinance would deprive him of his property without due process of law, and deny to him the equal protection of the laws; and that unless enjoined the defendants would at once proceed to enforce the ordinance, destroy his property without compensation therefor, and proceed to fine him in the police court, all of which would produce great and irreparable injury to him. On a hearing of the case before the circuit court a permanent injunction was granted restraining the defendants and each of them from in any way interfering with the property, or from proceeding by warrant or otherwise in the police court or in any other court against the plaintiff for violation of the ordinance referred to, to all of which the defendants excepted and prayed an appeal to this court which was granted.

It is insisted for the plaintiff that the ordinance gives the authorities of the city of Frankfort the power absolutely to destroy and tear down houses intended alone for dwelling purposes; that, whenever in the opinion of the proper authorities the house comes within section 1, it shall be the duty of the persons living in it to vacate within 10 days, and the owner of the house shall be required to abate or remove it within 20 days. It is earnestly insisted that nothing in the statute was intended to confer such power, and that such power cannot be conferred under the Constitution.

In determining the proper construction of the ordinance the court should read it in connection with the statute under which it was enacted; for the language of the ordinance is largely borrowed from the statute, and it is to be presumed that the city authorities were endeavoring simply to follow the statute. Under the act of the Legislature, the common council of the city is given power to make all police...