ment. The circuit court sustained a general demurrer to his petition, and he declining to plead further, dismissed it. He appeals.

The circuit court in a written opinion held the ordinarce void as an unreasonable invasion of the citizen's right of personal liberty. We concur in the conclusion that it is not a reasonable ordinance, and that the circuit court properly so held. (Commonwealth v. Campbell, 133 Ky. 50.) The ordinance is so broad as to prohibit one from smoking a cigarette in his own home or on any private premises in the city. To prohibit the smoking of cigarettes in the citizen's own home or on other private premises is an invasion of his right to control his own personal indulgencies. The city council is authorized by statute to enact and enforce all such local, police, sanitary and other regulations as do not conflict with general laws. (Ky. St. Sec. 3637, Sub. 7.) But under this power it may not unreasonably interfere with the right of the citizen to determine for himself such personal matters. If the council may prohibit cigarette smoking in the city, it may prohibit pipe smoking or cigar smoking, or any other use of tobacco. The Legislature did not contemplate conferring such power upon the council. If the ordinance had provided a penalty for smoking cigarettes on the streets of the city, a different question would be presented, but whether such an ordinance would be valid is a question not now presented or decided.

It is insisted for appellant that as the ordinance is void, his arrest was unwarranted, and the city is liable to him therefor. In support of this conclusion his counsel cites the case of McGraw v. Town of Marion, 98 Ky. 673, in which it was held that a recovery might be had against the municipality in a case like this. But that case was in effect overruled in Board of Park Commissioners v. Prinz, 127 Ky. 460, and as there shown, it is contrary to both the previous and subsequent decisions of the court. In Taylor v. City of Owensboro, 98 Ky. 271, a city ordinance provided a different penalty for an offense from that prescribed by the statute, and was for that reason held void. Taylor, who had been fined and imprisoned under the ordinance, sued the city for damages. The court held that Taylor had committed a public offense, and that this being shown by the warrant he had not been illegally imprisoned. The court then added:

"Had there been no statute imposing a fine etc., for a breach of the peace, then the question as to the effect

of such judgment would be a different question from the one presented in this case. However that would not affect the question as to the liability of the city. Municipal governments are auxiliaries of the State government. They are created principally to aid in securing a proper government of the people within the boundaries of such municipalities, and to make more effectual the maintenance of public order."

In Bean v. Middlesboro, 22 R. 415, Bean was arrested under a city ordinance for selling watermelons without license. In disposing of the case, the court said:

"Though his arrest was unlawful, the city was not. responsible for the tort of the police."

See also to same effect Pollock v. Louisville, 13 Bush, 221. In Maydwell v. Louisville, 116 Ky., 885, Twyman v. Frankfort, 117 Ky., 518, Park Commissioners v. Prinz, 127 Ky., 470; Kippes v. Louisville, 140 Ky., 423; it was held that the city is not responsible in damages for the acts of any of its officers in the exercise of its governmental functions.

The city is a branch of the State government created by the legislature for local purposes. Legislative authority is conferred upon the city council in certain matters. Where the council acts in its legislative capacity for governmental purposes, the municipality is no more liable than the State would be for similar action taken by the Legislature. The ordinance in question was passed in the attempted exercise of the police power. Cigarette smoking being regarded by the council as injurious, especially to the young, it pased the ordinance in the attempted exercise of its governmental functions, and not in the line of its corporate business or its corporate affairs. The city is only liable for what the council does in the line of its corporate business or corporate affairs not relating to matters of a governmental nature. That a city is not liable in damages to a person arrested under a void ordinance passed in the exercise of its governmental functions, see McFadden v. San Antonio, 54 S. W. 48; Trammell v. Russellville, 34 Ark., 105, Caldwell v. Prunnelle, 57 Kan., 511; Bartlett vs. Columbus, 44 L. R. A., 795; Harrison vs. Columbus, 44 Texas, 418; Easterly v. Irwin, 99 Iowa, 694; Simpson v. Whatcom, 99 Am. St. Rep., 591; Masters v. Bowling Green, 101 Fed., 101; Chicago v. Turner, 80 Ill., 420; Grumbine v. Washington, 29 Am. Rep., 626; Bond v. Royston, 18 L. R. S., N. S., 409.

Appellant was not without remedy. He could have tested the validity of the ordinance by an action in court, if not by appeal; but he cannot ignore the judgment of the police court, and sue the city. The case of McGraw v. Town of Marion is overruled.

Judgment affirmed.

1.

Foreman v. L. & N. R. R. Co.

(Decided February 3, 1911.)

Appeal from Ohio Circuit Court.

Master and Servant.-The master is not liable to a servant, who in the ordinary course of his employment receives injuries as a result of his failure to exercise ordinary care for his own safety. To authorize a recovery there must be a breach of duty on the part of the master.

2. Rule 33 of the Court.-The attention of attorneys is called to rule 33 of the Court, providing that "whenever a case cited or referred to by counsel in brief or argument has been published in the Kentucky Reports, which is the only official publication of the decisions of this Court, attorneys must cite, refer to and use the Kentucky Reports and no other publication." Its observance is requested, and will be appreciated by the Court.

W. H. BARNES for appellant.

CHAS. H. MOORMAN, GLENN & SIMMERMAN, BENJAMIN WARFIELD and FRED P. CALDWELL for appellee.

OPINION OF THE COURT BY JUDGE CARROLL-Affirming.

A demurrer was sustained to the petition and amended petition of appellant, in which he attempted to set up a cause of action entitling him to recover damages. from the appellee company on account of personal injuries received by him while in its employment as a carpenter. The only question before us is whether or not the petition as amended stated facts sufficient to constitute a cause of action.

It is averred in the petition that while appellant was at work for appellee as a carpenter, and acting in the scope of his employment, and using due care for his own safety, he was by the gross negligence and carelessness of his superior officer, ordered and directed to labor and perform work in a dangerous and unsafe place, and in a

dangerous and unsafe manner, and that such superior officer was then and there personally directing him in the place of his work and in the way and manner he should perform the same, and he was acting in obedience to the orders and under the personal supervision and direction of his superior when he was injured. He further averred that to perform the work at said place and in such way and manner was more than ordinarily dangerous, but that he did not then appreciate the dangers or risks to which he was subjected, and did not know that the work was dangerous or unsafe; but that these facts were known to his superior or could have been known by him in the exercise of ordinary care. averred that while so laboring he lost his balance and fell from a steep roof where he was at work under the direction of his superior, thereby receiving serious injuries.

He

The court required appellant to make the petition more specific and certain, and thereupon he filed an amended petition in which he set up that at the time he was injured he was attempting to and carrying across and over a toe board, which was then and there insufficient and unsafe and which was placed on the roof of a pump house, a ventilator to be placed in the gable or end of said house, when because of its dimensions, size and weight, he first discovered his danger and peril and in attempting to lay it down, for the purpose of relieving himself of it and avoiding the danger, when because of its dimensions, size and weight, the end of it striking against the building or roof, unbalanced and knocked or caused his feet to slip from the toe board, which was not sufficient to support them or to hold him, and to fall from said roof. That he was at the time acting, under the direct orders and personal supervision of an agent and superior servant to him, in the employment of defendant; that said dangers and perils in the performance of said work were more than ordinarily dangerous but that this was unknown to plaintiff but known to the defendant, or might have been discovered by it by the use of ordinary care; that to pass to and fro over said toe board, on said roof, without tools or material was not more than ordinarily dangerous, but to pass over the same with the material above stated was more than ordinarily dangerous, and this was then and there unknown to plaintiff but known to defendant; that plaintiff and others had theretofore passed over the same in safety, without tools or material, but to carry material

* * *

of the size, dimensions and weight of said ventilator was more than ordinarily dangerous and hazardous but not so dangerous and hazardous that a man of ordinary prudence would not undertake it, in the way and manner in which plaintiff was directed by said superior servant to perform it and performing it and but for which direction and orders he would not have so performed it."

We gather from these pleadings that appellant, a carpenter in the employ of the appellee company, was carrying up the inclined roof of a building a ventilator for the purpose of putting it in the end of the building, and that while walking on a plank nailed to the roof, with cleats across it to make the walking less dangerous, some part of the ventilator that he was carying struck against the roof of the building, thereby causing him to lose his balance, and slip from the toe board, whereupon he fell from the roof to the ground. There was no defect in the construction of the roof or the ventilator or the toe board, and appellee was perfectly familiar with the construction of the building and the labor he was performing. There was nothing new or novel about it. The accident that befell him was caused by the fact that the ventilator he was carying struck the roof of the building. He had used the toe board in walking on the roof before the accident, and admits that it was sufficiently safe if he had not been carrying the ventilator. The only thing that made his work at all dangerous was the fact that he was carrying the ventilator. He was an experienced mechanic and had right before his eyes everything connected with his work. There was nothing hidden or concealed about it. He knew as much of the danger, if any, in carrying the ventilator as his superior did. If the toe board was not suitable he knew it as he had been using it for sometime. It is true that he was directed to carry the ventilator by his superior, but this was not a peremptory order, it was merely a direction given in the usual course of the employment and in the usual manner in which directions and orders are given to laborers. There was no hurry, no emergency and no assurance of safety. Under these circumstances an experienced laborer of ordinary intelligence, as appellant was, cannot shut his eyes to the danger attending the particular work he is engaged in, or hold his employer liable for an injury that may happen to him. In every employment accidents and resulting injury happen, but it is not in every case that a recovery will be allowed. The employe to maintain a cause of

vol. 142-3