Whitaker v. Green River Coal Co. , 276 Ky. 43 ( 1938 )

I am unable to agree with so much of the opinion of the majority as determines that the act in question validly leaves its operation to the mere whim of an adjoining landowner. I do not conceive that the opinion of the majority denies the existence of the principles which seem to me to be controlling. The disagreement rests simply in the application of these principles to the question presented.

Section 2 of the Constitution of Kentucky provides: Absolute and arbitrary power over the lives, liberty and property of freemen exists nowhere in a republic, not even in the largest majority."

It has long been settled by decisions of this court that the Legislature cannot delegate the police power of the state to a citizen. Owensboro Nashville R. Co. v Todd, 91 Ky. 175,15 S.W. 56, 12 Ky. Law Rep. 726, 11 L.R.A. 285; McCown v. Gose,244 Ky. 402, 51 S.W.2d 251, and cases there cited. Indeed, the principle has been extended to the granting of arbitrary power to public boards or agencies. In Commonwealth v. House, 177 Ky. 829, 198 S.W. 2181 this court held invalid an order of the city of Richmond which required building permits to be obtained from the City Council, but which prescribed no standard for determining when a permit should or should not be granted. We said (page 830, 198 S.W. page 218):

"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, or 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."

The case of Tilford v. Belknap, 126 Ky. 244, 103 S.W. 289, 31 Ky. Law Rep. 662, 11 L.R.A., N.S., 708, is a leading one on the question here presented. In that ease, we held invalid an ordinance of the city of Louisville providing that no frame dwelling should be erected within the city unless the owners had obtained permission in writing from all persons owning brick or stone structures within sixty feet of the proposed building. We said (page 250, 103 S.W. page 290):

"The ordinance involved * * * is both unreasonable and discriminatory, for it attempts to confer upon a private citizen * * * power of the most arbitrary character over the property of his neighbors within a radius of 60 feet of his own house. * * *

"The ordinance is intended to confer and actually does confer, not a discretion to be exercised upon a consideration of the circumstances of each case, but a naked and mandatory power to give or withhold consent at the mere whim or according to, the caprice of the custodian of the power. In brief, it is purely an arbitrary power, which acknowledges neither guidance nor restraint, and the exercise of which might in every instance result in oppression and unjust discrimination. * * * For these reasons, we do not hesitate to condemn the ordinance as unconstitutional and, void."

It seems to me that the principles enunciated in these cases are sound and that the Act before us is invalid for the reason that it prescribes no standard for determining when an adjoining landowner or, indeed, the Chief of the Department of Mines and Minerals may properly grant or withhold consent to the operation. The power granted is purely arbitrary and is in the face of sec. 2 of our Constitution. It is possible under the Act for one mine owner to operate and another to be prohibited from operation although they are in exactly the same situation, if one has a tractable neighbor and the other has not. The decisions of the Supreme Court of the United States relied on in the majority opinion were not construing the Constitution of Kentucky. Neither was the opinion of the Supreme Court of Appeals of West Virginia, construing the Constitution of Kentucky when it held a similar statute of West Virginia to be valid in Mapel v. John, 42 W. Va. 30,24 S.E. 608, 32 L.R.A. 800, 57 Am. St. Rep. 839. We have ourselves construed and applied sec. 2 of our Constitution, and I am of the opinion that the decisions of this court and not those of some other court should control the matter before us.

I am authorized to state that Judge Perry concurs in this dissent.