Robinson v. Town of Paintsville

• Citation: 250 S.W. 972,199 Ky. 247
• Parties: ROBINSON v. TOWN OF PAINTSVILLE.
• Decision Date: 18 May 1923
• Court: Court of Appeals of Kentucky

250 S.W. 972

199 Ky. 247

ROBINSON v. TOWN OF PAINTSVILLE.

Court of Appeals of Kentucky.

May 18, 1923

Appeal from Circuit Court, Johnson County.

Suit for mandatory injunction by the Town of Paintsville against Enoch W. Robinson. Judgment for plaintiff, and defendant appeals. Reversed, with directions to sustain a demurrer to the petition.

W. H Vaughan & Son, of Paintsville, for appellant.

Z Wells, of Paintsville, for appellee.

THOMAS J.

In this equity action, filed in the Johnson circuit court by the appellee and plaintiff below, town of Paintsville, against appellant and defendant below, Enoch W. Robinson, plaintiff sought a mandatory injunction to enforce the observance by defendant of an ordinance of the town prescribing a fire limit and directing what character of buildings should be constructed therein, and forbidding the construction or maintenance of other buildings therein, except such as were described in the ordinance, which also forbade any of them to be constructed or maintained without a duly obtained permit from the city engineer. It was averred in the petition that defendant had violated the ordinance by constructing within the defined fire limits a building forbidden by it and without obtaining the required permit. One section of the ordinance prescribed a penalty for its violation and fixed a punishment of a fine of not less than $5 nor more than $25 for each offense, and provided that each day of such violation should constitute a separate offense. Another section prohibited construction of any character of building within the corporate limits of the town without a permit from the engineer, which section under this court's opinion in the case of City of Monticello v. Bates, 163 Ky. 38 173 S.W. 159, was and is void because of arbitrary power lodged with the engineer. But that section is not involved in this case, since the action is based altogether upon violations of the section creating the fire limits. The demurrer filed by the defendant to the petition was overruled, and in his answer he denied violating the fire limit section of the ordinance relied on by plaintiff, and further contended that it was also void for the same reason that rendered the other section referred to invalid.

But without determining that question, we will dispose of the case upon the theory that the fire limit section prescribes a sufficient standard for the guidance of the city engineer to render it valid and not subject to the objection of lodging arbitrary power with that officer. It was also averred as a defense that the city, through its engineer, had consented on a number of prior occasions to the construction of prohibited buildings within the fire limits of the ordinance, and that the withholding of a permit from defendant to construct his building would discriminate against him in favor of others, which objection was completely answered by us against defendant's contention in the case of Bates v. City of Monticello, 173 Ky. 244, 190 S.W. 1074. Considerable proof was taken, about 80 per cent. of which was wholly immaterial and irrelevant, and upon final submission the court granted the prayer of the petition and by a mandatory injunction required defendant to remove his building within a designated time, and if not done by him within that time the sheriff was directed to remove it, and from that judgment defendant has appealed.

It is conceded that defendant did not obtain the required permit to construct the building involved. and we assume the court found that it was such a one as the ordinance prohibited within the boundary of the fire limits, but which fact we need not and do not determine, since we are convinced that the court erred in overruling the demurrer to the petition, upon the ground hereinafter stated.

It...