Arnett v. Cardwell, Police Judge

• Decision Date: 20 October 1909
• Citation: 135 Ky. 14
• Parties: Arnett v. Cardwell, Police Judge
• Court: Kentucky Court of Appeals

135 Ky. 14

Arnett v. Cardwell, Police Judge

Court of Appeals of Kentucky.

October 20, 1909.

Appeal from Breathitt Circuit Court.

J. P. ADAMS, Circuit Judge.

From an order denying relief, plaintiff appeals. — Reversed.

G. W. FLEENOR, attorney for appellant.

W. S. HOGG for appellees.

OPINION OF THE COURT BY WM. ROGERS CLAY, COMMISSIONER — Reversing.

The board of trustees of the town of Jackson, Ky., enacted the following ordinance: "Be it ordained by the board of trustees of the town of Jackson, Ky., as follows: That it shall be unlawful for any person to sell within the corporate limits of the town of Jackson, Ky., any drink known as Malt Meade or Beerine, and any person violating this ordinance shall, upon conviction, be fined not less than ten ($10.00) dollars for each offense, and each sale shall constitute a separate offense. This ordinance shall take effect from and after its publication. (Signed) R. T. Davis, Chairman. M. S. Crain, Clerk." Thereafter six warrants were issued against Joseph Arnett, charging him with violation of the above ordinance. He was tried before appellee, T. P. Cardwell, Jr., police judge of Jackson, and fined $10 and costs for each offense, the costs amounting to $6. Thereafter appellee replevied the fines and costs amounting to $98, all of which were put in a single replevin bond. Appellant instituted this action against appellee, T. P. Cardwell, Jr., police judge of Jackson, Ky., and the town of Jackson, to have the aforesaid ordinance adjudged invalid, and to enjoin the collection of the replevin bond. The lower court denied the relief prayed for; hence this appeal.

Appellee took the position below that appellant's application for injunction should have been made in the police court, as that court rendered the judgment. He also contended that even the police court had no jurisdiction, as the amount in controversy did not exceed $25. See secs. 284 and 285 of the Civil Code of Practice. The circuit court agreed with appellee. Our conclusion, however, is that sections 284 and 285 have no application to a case like this. Here the main purpose of the suit is to have declared invalid the ordinance in question. The injunction prayed for is incidental only to the relief asked. This distinction was made by this court in the case of Boyd et al. v. Board of Council of the City of Frankfort, 117 Ky. 199, 77 S. W. 669, 25 Ky. Law Rep. 1311, Moody v. City of Williamsburg, etc., 121 Ky. 92, 88 S. W. 1075, 28 Ky. Law Rep. 60, and Combs v. Sewell, etc., 59 S. W. 526, 22 Ky. Law Rep. 1026.

The next question is: Is the ordinance void? It will be observed that the ordinance provides a minimum penalty, but not a maximum penalty. In ordinances and by-laws the penalty must be certain. The old English rule was that the precise amount should be fixed. This rule was followed in New Jersey. State v. Zeigler, 32 N. J. Law, 262. North Carolina holds to the same doctrine....