City of Louisville v. Wehmhoff, &C.

• Citation: 116 Ky. 812
• Parties: City of Louisville v. Wehmhoff &c. Same v. Alvey &c. Same v. Pirtle. Same v. Smith.
• Decision Date: 18 November 1903
• Court: Court of Appeals of Kentucky

Page 812

116 Ky. 812

City of Louisville v. Wehmhoff &c.

Same v. Alvey &c.

Same v. Pirtle.

Same v. Smith.

Court of Appeals of Kentucky.

November 18, 1903.

APPEAL FROM JEFFERSON CIRCUIT COURT, CRIMINAL DIVISION.

FROM AN ORDER DISMISSING THE CITY'S APPEAL TO THE CIRCUIT COURT FROM JUDGMENTS SUSTAINING DEMURRERS TO THE WARRANTS, THE CITY APPEALS. REVERSED.

COPYRIGHT MATERIAL OMITTED

HENRY L. STONE, CITY ATTORNEY, FOR APPELLANT.

COPYRIGHT MATERIAL OMITTED

KOHN, BAIRD & SPINDLE, FRED FORCHT AND RICHARDS & RONALD, FOR APPELLEES.

GEO. H. FEARONS, OF COUNSEL.

RICHARDS & RONALD, ATTORNEYS FOR APPELLEE, THE WESTERN UNION TELEGRAPH COMPANY.

GEO. H. FEARONS, OF COUNSEL.

REPLY OF HENRY L. STONE, CITY ATTORNEY, FOR APPELLANT, TO APPELLEE'S PETITIONS FOR REHEARING.

OPINION OF THE COURT BY JUDGE O'REAR — REVERSING.

These actions originated in the police court of Louisville on four summonses or warrants taken out in the name of the appellant, city of Louisville, against the appellees, respectively, for the violation of an ordinance entitled "An ordinance to prevent the operation of poolrooms in the city of Louisville." The appellees in that court demurred to the warrants against them, respectively. The demurrers being each sustained, the city prosecuted an appeal to the Jefferson Circuit Court, Criminal Division. That court, on motion of the appellees, dismissed the appeals on the ground that the statute attempting to confer jurisdiction on it was unconstitutional. From the judgments of dismissal, appeals were prosecuted to this court. Here the appeals were dismissed because it appeared that the cases in which the judgments appealed from had been rendered were styled in the circuit court, "Commonwealth of Kentucky, Appellant, v. Henry Wehmhoff, &c., Appellees." It was said that, for aught the record showed, the prosecutions begun in the police court, styled, "City of Louisville, Plaintiff," were yet pending on the appeals in the circuit court. See City of Louisville v. Wehmhoff, &c., 24 R., 438, 68 S. W., 650. In the course of the majority opinion on that appeal, it was said: "If a clerical misprision in regard to the prosecutions of the appellant against appellees has occurred in the city court, the appellant has a right to have such misprisions corrected, upon proper proceedings, and the dismissal of this appeal in no wise affects that right. There is nothing in this judgment or the record, as now before us for consideration, which would preclude the appellant from obtaining a trial of the appeals which it took from the police court to the circuit court; and we expressly hold that this judgment of dismissal is no bar to the right of appellant to have a trial of the appeals prosecuted by it as aforesaid, or from obtaining a correction of the records of the Jefferson circuit court, if it is otherwise entitled to such correction." Upon the filing of the mandate in the circuit court, appellant city took appropriate steps to correct the clerical misprision indicated, and it was corrected by a judgment of that court as follows (after reciting the fact of the misprision and its nature): "It is now further adjudged by the court that said errors and misprisions of the clerk be, and the same are hereby, corrected by the entry of the foregoing orders and judgments in the above-styled appeals in the name of the city of Louisville as appellant, instead of the Commonwealth as appellant, as of the dates aforesaid, including the final judgment therein on November 25, 1901, nunc pro tunc." Among the orders referred to in the foregoing quotation was this one (correctly styled): "This day the court, being advised, sustained the motion to dismiss the four above-styled appeals. Therefore ordered by the court that the four above-styled appeals be, and the same are, dismissed, to which the plaintiff objects and excepts, and prays an appeal to the Court of Appeals of Kentucky, which is granted." Thereupon this appeal was perfected by filing in the clerk's office of this court the transcript of the record.

The first question made by appellees is that there is no appeal pending, because they say that the appeal being prosecuted is the one heretofore actually dismissed, and that none other has ever been granted either by the clerk of this court, or by the trial court. We regard the judgment as entered in October, 1902, on the return of this case from this court, as the only judgment in this case in that court. Until it was entered as corrected, there could be no appeal from it by the appellant, city of Louisville. That is the precise point decided on the former appeal. The appeal therein granted could not be exhausted till it was taken, or until it was barred by limitation. It could not be legally prosecuted before a final judgment was rendered in the proceedings. Such judgment, under the rulings of the former opinion, was not entered in the old record, and hence was not entered till the correction of the clerk's misprision. The motion to dismiss the appeals must be overruled.

The very careful preparation of the case presents a number of other questions, the importance of which is earnestly pressed in the argument. We have given them all close consideration, and will dispose of them in their proper order.

2. It is claimed by appellees that the Jefferson Circuit Court had not the jurisdiction of the appeals from the police court. If this be so, the decision of that question terminates our authority to pass upon the merits, and other questions in these cases. The city of Louisville, in Jefferson county, is a city of the first class, and the only city of that class, or that has ever been in that class, in this State, under the classification required by the present Constitution. In the act providing for the organization and government of cities of the first class, among its other governmental agencies, it was provided with a police court and a general council. The power of the council to pass ordinances, and the jurisdiction of the courts to construe and enforce them, were necessarily provided for. In allowing appeals from the judgments of the police court of cities of the first class, as well as in providing a method for testing the validity of the ordinances passed by the general council, it was enacted (section 2922, Ky. St., 1899): "Appeals shall be from the decisions of said court to the circuit court in all cases where the amount of the fine imposed is as much as twenty dollars. In cases where a fine of twenty dollars or less is imposed under an ordinance, the legality of said ordinance may be tested by the city by an appeal to the Jefferson Circuit Court or by the defendant by a writ of prohibition to the Jefferson Circuit Court, and after a decision has been rendered in the circuit court, as provided for in this section, either the city or the accused may appeal to the court of appeals as other cases in the circuit court are appealed." Appellees' contention is that this section of the statutes violates section 59 of the Constitution, which limits the power of the Legislature in passing local acts, and forbids those regulating the jurisdiction of courts. The importance of this question is emphasized when it is reflected that there is no other provision of law than section 2922 for the city's prosecuting appeals from the judgments of the police court of Louisville, or for testing the validity of the ordinances of that city, as well as that almost the same provision alone is made for appeals and testing the validity of the ordinances of the cities of the fourth class. Section 3519, Ky. St., 1899. The appellate jurisdiction of the circuit courts of this Commonwealth, as fixed by section 978, Ky. St., 1899, is made to include certain named appeals, "and in all other cases allowed by law." Prior to the passage of the act governing cities of the first class, the city of Louisville was governed under a charter granted by the Legislature before the present Constitution. In that charter there was substantially the same provision for appeals from the police court, and especially for testing the validity of ordinances passed by the general council, as is contained in section 2922. It is found in Burnett's City Code, 1884, sec. 27, p. 189. Although the Constitution does not require the jurisdiction of the circuit courts to be uniform throughout the Commonwealth (section 126), and although by statute they are not, as, for example, the Franklin circuit court is made the fiscal court of the Commonwealth, with jurisdiction concurrent or exclusive in such matters, as well as in certain other penal matters, we are of opinion that this statute does not affect that question. The jurisdiction of the circuit courts is already (section 978, Ky. St., 1899) made to include "all cases allowed by law," and, by general laws applicable to all the cities of a particular class, provision is made for testing the validity of ordinances, and for appeals from the police courts. The statutes affecting the jurisdiction of the circuit court need not all be embraced by one act. The thing required is that they shall be general laws only. It would hardly be claimed that an act creating an offense, fixing a penalty, and naming the court which should have jurisdiction of the prosecution, is violative of section 59 of the Constitution, as being a local act regulating the jurisdiction of the courts. The Constitution allows the establishment of police courts in the cities and towns of this Commonwealth (section 143), with jurisdiction in cases of violation of municipal ordinances and by-laws occurring within the corporate limits of the town, and criminal jurisdiction within the limits of the town as justices of the peace have. In providing these courts, it is competent for the Legislature to provide for appeals from their judgment, and to provide in what instances and to what courts the appeals will lie. It must be manifest that the final jurisdictions of these minor courts...