Town of Lagrange v. Overstreet

• Decision Date: 06 December 1910
• Citation: 141 Ky. 43
• Parties: Town of LaGrange v. Overstreet.
• Court: Kentucky Court of Appeals

141 Ky. 43

Town of LaGrange v. Overstreet.

Court of Appeals of Kentucky.

Decided December 6, 1910.

Appeal from Oldham Circuit Court.

JAMES S. MORRIS and CHARLES H. MORRIS for appellant.

A. T. LADD for appellee.

OPINION OF THE COURT BY JUDGE CARROLL — Reversing.

In 1909, the board of trustees of LaGrange, then a town of the sixth class, enacted an ordinance providing for the reconstruction of a sidewalk in front of the property owned by appellee Overstreet, and the removal of a locust tree owned by him that was standing in the sidewalk ordered to be reconstructed, the real purpose of the ordinance being to secure the removal of the tree. Thereupon appellee brought this action to enjoin the board of trustees from enforcing the ordinance upon the ground that the direction to remove the tree was an unreasonable and arbitrary exercise of power by the municipal authorities, and that the ordinance was invalid because the title was defective. The lower court granted the relief sought, and the board of trustees appeals.

We may say at the outset that the averment in the petition that the ordinance is invalid for defects in the title is not pressed or even mentioned by the counsel for appellee as a reason for declaring that it should not be enforced, and so we do not think it necessary to further allude to this feature of the case. Especially so as an inspection of the record satisfies us that there is no defect in the title of the ordinance.

The question then before us is, the right of the board of trustees to order the tree to be cut down and removed. The tree is located on the main street of the town, and the sidewalk where it stands is used more than any other in the town. At the place where the tree is located the concrete sidewalk is eight feet wide and the tree is about two feet and four inches in diameter. It stands on the line of the sidewalk and curbing, two feet of it being on the sidewalk and four inches projecting over the sidewalk into the gutter. It is about thirty years old, and several years ago the top and one-half of the body was killed by a fire in adjacent property, but the remaining half of the tree is alive, and we may assume from the evidence that it will live for many years. After the fire, the top was cut off, but a number of the branches put out, and in the summer time it furnishes for a part of each day some shade to the hotel property. There are in the record photographs of the tree, taken in the winter time, but they clearly show that it is an unsightly and unattractive tree, and not capable of furnishing much shade. Fronting on the sidewalk where the tree is located is a hotel owned by the appellee, and there is some evidence that this tree is valuable and useful to the hotel on account of the shade it affords. On this street and in the square in which this tree stands, there are many other shade trees, but none of them except the one in controversy are locust, and it is shown that for a number of years the citizens of the town have been gradually and voluntarily cutting down the locust trees and planting in place of them other trees that furnish better shade and are more attractive in appearance.

In brief, the evidence for the trustees is to the effect that this locust tree is unsightly, deformed and unattractive, as well as an exception to the variety of trees that have been set out on the street and square for shade and ornamental purposes, and that it furnishes little shade and is an unreasonable obstruction of the sidewalk. While the evidence for the appellee conduces to show that the tree furnishes good shade, is not bad looking, nor an unreasonable obstruction.

Section 3704 of the Kentucky Statutes, which is a part of the charter of sixth class towns, provides in part that the board of trustees of such towns shall have the power to "pass ordinances not in conflict with the Constitution or laws of this Commonwealth or of the United States" and to "do and perform any and all other acts and things necessary or proper to carry out the provisions of this chapter, and to enact and enforce within the limits of such town all other local, police, sanitary and other regulations as do not conflict with general laws." Section 3706 gives authority "* * * to order any work they deem necessary to be done upon the sidewalks, curbing, sewers, streets, avenues, highways and public places of the town." * * * And section 3709 confers power "* * * to cause to be removed any obstructions in the streets of the town." * * *

It was under the authority conferred by these statutory provisions that the ordinance directing the reconstruction of the sidewalk and the removal of the tree was enacted. It will be observed that the statute vests large powers in the board of trustees, giving them wide discretion in the enactment of ordinances controlling and regulating the affairs of the town as well as the condition and improvement of its sidewalks, streets and highways. But, extensive as this authority is, there is the limitation and restraint upon its exercise imposed by well established principles of law that it must not be used in an unreasonable, arbitrary, capricious or oppressive manner, or to gratify malice or ill-will. If it is, the court will protect the citizen or class of citizens affected by this unauthorized assumption of power, and prevent by its process the municipal boards from acting without the scope of their authority, or within the scope but in violation of the principle noted. But as the State has created these political subdivisions, and delegated to them a part of its sovereign power, to be exercised in the governmental affairs of the people composing the municipality, and has given the inhabitants the right to select from among their number, citizens to administer their municipal and public affairs, it needs no argument to show that the acts of these representatives of the municipality in the performance of their public functions should not be controlled or interferred with unless it plainly appears that they are acting in an arbitrary, unreasonable or oppressive manner or are influenced in their official conduct by improper motives, ill-will or caprice. And it is not to be lightly asserted that they have exceeded their authority or in other respects have acted in such a manner as to justify the courts in interposing to protect the citizen from oppression or injustice, whatever form it may take. In every case where there is doubt, it should be resolved in favor of the action of the authorities and the presumption be indulged that they have acted prudently, wisely and for the benefit of the municipality and its people. It is not probable or indeed possible that municipal boards in the conduct of the affairs of a municipality can please everybody or dispense equal or exact justice to all. It may and often does happen that ordinances enacted will operate harshly and unequally upon certain individuals and interests, imposing in some instances greater burdens upon some persons than upon others, and giving to others advantages and conveniences that are not enjoyed by all. This inequality of benefits and burdens finds frequent illustration in the imposition of license fees and taxes, in the number and location of street lights, water supplies, street improvements, police and fire protection, and other municipal aids intended for the safety, comfort and convenience of the people of the town, and is a necessary and unavoidable incident of all forms of government, whether State, national or municipal. And especially does the complicated and diversified nature of municipal affairs make it impracticable to devise any scheme of government that will be entirely free from the appearance or in fact the reality of favoritism on the one hand and discrimination upon the other. And it is largely in deference to these practical conditions that complaining individuals or classes must clearly show, before the courts will interfere that there has been an abuse of power. In this connection it would not be out of the way to say that among the duties imposed upon boards of trustees and city councils, excepting the question of taxation alone, there are none that so intimately concern the people or that give rise to so much dissatisfaction, criticism and litigation as those which affect the streets, sidewalks and other public ways of the town or city. These public places are under the especial care of the board of trustees, and they are and should be allowed the largest reasonable discretion, not only in constructing, improving and maintaining them in a suitable and proper condition for public travel, but in removing from them any objects or obstructions that are unsightly or objectionable, or that interfere with their full enjoyment by the public. One reason for allowing a wide latitude in respect to the control of these public places grows out of the fact that the law requires municipalities to keep the streets, sidewalks and public ways in a reasonably safe...