Dissenting Opinion by
Judge Hobson.After the building inspector refused to issue the permit in question the board of public safety, upon *41an appeal to them, granted it. A motion was made before them to reconsider the matter, and after a full hearing they declined to recall the permit. Under the permit thus issued by the board of public safety, aud thus sanctioned' by it, appellees worked upon the building, and were arrested for thus working upon it. This is the only charge made against them; and if there is no- la,w warranting their being fined for working upon this building, the police court was without jurisdiction to punish them, and the writ of prohibition was properly granted. The police court is of special jurisdiction; and where it proceeds without jurisdiction, as where there is no authority of law inflicting a penalty for the act charged, it may be proceeded against by prohibition in the circuit court, in the absence of any other remedy. "Were the rule otherwise, there would be no protection to personal security from the police courts. The following decisions by this court recognize this rule: Shinkle v. Covington, 83 Ky. 420, 7 Ky. Law Rep. 412; Owensboro v. Sparks, 99 Ky. 351, 18 Ky. Law Rep. 269, 36 S. 801, 76 S. W. 828, 25 Ky. Law Rep. 857; Bardstown v. Hurst, 121 Ky. 119, 89 S. W. 147, 724, 28 Ky. Law Rep. 603.
The circuit court granted the writ of prohibition; so the only question before this court is: Did the court grant it properly? If there is no provision in the ordinance for the punishment of the acts of the defendants complained of, its granting the writ of prohibition was proper, and no other question arises in this court; for the only question before this court is: Did the circuit court properly grant the writ of prohibition!? The answer to this question depends upon the question: Is there any provision of the ordinance for the punishment of laborers on the building in question *42after its erection was authorized by the permit issued by the board of public safety!
The ordinance is a very long one, covering 64 pages of the Biennial Compilation. It consists of 186 sections, and by the 184th section it is provided that: “Any person violating any provision of this ordinance, for which a penalty is not already prescribed, shall be fined in a sum not less than five nor more than fifty dollars for each violation.”
The ordinance covers a great many things. It regulates all manner of buildings. That part of it relating to theaters is contained in sections 82-100. Section 82 provides what shall be deemed public halls. Section 83 regulates the height; section 84, the stairways ; section 85, the material that may be used; section 86, the exits. Section 87, under which the prosecution was had, is as follows: “Every theater, opera house, or other similar place of amusement hereafter erected, with main auditorium floor, balcony and gallery, or auditorium floor , and balcony, shall have at least five separate and distinct exits from the main or auditorium floor, one in front, at least twelve feet in width in the clear, and two on either side at least five feet in width; front exit, if not immediately on the public street, shall lead to the street through corridor or passageway, which corridor or passageway shall be fireproof, no less in width than the exit, and not over thirty feet in length; and if balcony exits empty in said passageway, or into; auditorium and thence into passageway, it shall be widened ten feet. There shall be at least four distinct and separate exits from balcony floor, two in front, which may empty in passageway leading from main or auditorium floor, or may lead directly to the street, and one on either side of balcony at least sixty feet from front exits. *43These exits shall be at least five feet wide, and lead •directly to the ground by iron stairways not less than four feet in width. There shall be at least four separate and distinct exits- from the gallery, two in front leading directly to the street, and' one on either side of gallery, at least sixty feet distant from front exits, leading to the ground, both by iron stairways not less than four feet in width, exits to be each five feet wide. The main or auditorium floor of all theaters, opera houses, or other similar places of amusement, shall be flush with the sidewalk or pavement.” Section 88 regulates the thickness of the walls; section 89, the workshops and storage- rooms; section 90, the skylights; section 91, the fly galleries; section 92, the dressing rooms'; section 93, the stage exits; section 94, the seats-; section 95, the aisles; section 96, the balconies; section 97, the heating furnaces; section 98, the radiators-; section 99, repairs on theaters; section 100, lessees of theaters not now in use as such.
There- are a number of things in the ordinance to which- section 184 manifestly refers, as, for instance, the obstruction of sidewalks, working on a_ building -after it has- been- ordered stopped by an- inspector, the use of material condemned by him, and the like-. But it was manifestly not- intended that every laborer on a building could be fined if the theater had' not at least five separate and distinct exits, or if the main exit was 11 feet wide, instead of 12, or if the corridor was 31 feet long, and not 30, or if the exits from the balcony were four feet wide, instead of five, or there were three exits from the gallery instead of four, or they were within 60 feet- of the front exits. Whether a building not substantially complying with the statute could be used as' a theater without a violation of the ordinance by the owner or operator is a question *44not now before us.. The incomplete building, which the appellees have been fined for working upon, is not a theater, and will not be a theater, within the meaning of the ordinance, until it is completed and used for that purpose. The owner has until then at least to make such changes- in it as may be necessary to conform it to law. The purpose of these provisions is to secure the safety of persons attending the theater, and until the building is completed', and is used as a theater, there is no violation of any of these provisions. Buildings are often constructed for one purpose and used for another. This building may never be used for a theater, or, if it is, every objection now made to it may be removed before that time; and yet appellees have been fined for working on the building because the corridors as now projected are more than 30 feet long. To hold that the appellees are liable under these circumstances is entirely to ignore the provisions of the law that the action of the board of public safety in granting a permit shall be final (section 17 of the ordinance); the manifest meaning of this being that, when the board' of public safety issues a permit, no one shall question the right to construct the building, and that people may work on it without question.
To say that every laborer on a building must know that it complies with all the provisions contained in the 180-odd sections of this ordinance is to give no force to the provision of the ordinance that the action of the board of public safety shall be final. The erection of buildings is within the jurisdiction of the board of public safety. The use to which buildings may be put after they are erected may be controlled by the general council, under appropriate ordinances, for the protection of the public in the exercise of the police power. But the right of the council to protect the *45public from death-traps, from inadequate- exits at theaters, only exists when buildings are used as theaters. There is not a line in the ordinance indicating any intention to punish laborers on a building because, when completed, if used as a theater, it may not come up to some of the requirements of the ordinance. It is an elementary principle that crime is never created by implication; that to punish for crime there must bean express declaration of the law making the act penal. It is said that an ancient law-giver wrote Ms laws in small letters and hung them up very high, so the people could not read them, and the unwary would thus be caught. But this is a clumsy contrivance for catching the unwary in comparison with this ordinance, if it is construed to mean that laborers are to be punished under its provisions for working on buildings under a permit of the board of public safety, where the building does not come up to the requirements of the ordinance if used for a specified purpose.
No weight can be given the fact that the police judge suspended the judgment as to some of the defendants during good behavior. This order may be set aside at any time. He has no power to put the defendants under obligation to be of good behavior when they have committed no offense, and he does not possess the power to grant a pardon, reprieve, or respite.
I therefore dissent from the opinion of the court.
Judges Barker and Nunn concur in this dissent.