Commonwealth v. House

177 Ky. 829 | Ky. Ct. App. | 1917

Opinion op the Court by

William Rogers Clay, Commissioner

— Affirming.

A. J. House was fined in the police court of the city of Richmond for a violation of an ordinance making it unlawful to alter any building without a permit from the board of council. On appeal to the circuit court, the ordinance was held invalid and the proceeding dismissed. The Commonwealth and the city of Richmond appeal.

The ordinance in question, which is section 20 of the published by-laws and ordinances of the city of Richmond, is as follows:

“(a) No person or persons, firm or corporations shall erect any building or construct or materially alter or repair any building or structure within the corporate limits of the city of Richmond without a permit from the Board of Council of said city, and no such permit shall be granted by the Board of Council of said city until the party desiring to erect said building or alter or repair same shall file with the City Clerk at least five days before the meeting of the council a written application for such permit, setting forth the proposed building or alteration, the purpose for which said building is to be used and the location thereof. (See Fire District — Streets and Sidewalks).

“ (b) The permit provided for herein shall be signed by the Mayor and Clerk of said Board of Council and in the interval between the meetings of said Board of Council, the Clerk is hereby authorized to issue and sign permits to all applications and so direct in writing to the building committee of the Board of Council. The Clerk shall keep a record of all permits issued.

“(c) Any person violating the ordinance shall be fined in any sum not exceeding one hundred dollars, and any building or structure erected or repaired in violation of this ordinance shall be subject to be removed by order of said Board of Council.”

In the recent case of city of Monticello v. Bates, 169 Ky. 258, 183 S. W. 555, the court announced the rule that it was essential to the validity of municipal ordinances placing restrictions upon the lawful use of property that they specify the rules and conditions to be observed in such business and admit of the exercise of the privilege by all citizens alike who comply with such rules and conditions, and that they do not admit of the exercise, of of an opportunity for the exercise, of any arbitrary discrimination by the municipal authorities between citizens who comply with such rules and conditions. Here the ordinance is almost identical with that held to be invalid in that case. 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 contrary, it gives to the council the arbitrary power to discriminate between the citizens of the city by granting a permit to one and refusing a permit to another, although the circumstances and conditions may be exactly the same. We, therefore, conclude that the ordinance in question is invalid.

Judgment affirmed.