City of Newport v. Holly

• Decision Date: 07 June 1900
• Citation: 108 Ky. 621
• Parties: City of Newport v. Holly.
• Court: Kentucky Court of Appeals

Page 621

108 Ky. 621

City of Newport v. Holly.

Court of Appeals of Kentucky.

June 7, 1900.

APPEAL FROM MONTGOMERY CIRCUIT COURT.

W. B. WHITE, ATTORNEY FOR APPELLANT.

HENRY R. PREWETT FOR APPELLEE.

OPINION OF THE COURT BY JUDGE HOBSON — REVERSING.

Appellee was arrested upon two warrants issued from the police court of the city of Mt. Sterling, charging her with the offense of disorderly conduct committed in the city, and was fined five dollars in each case. She prosecuted an appeal to the Montgomery Circuit Court, insisting that the by-law was void because unauthorized by the charter, and that she had been improperly denied trial by jury in the police court. The circuit court sustained her contention, and dismissed the warrants. From this judgment the city has appealed to this court.

The validity of the by-law is the first question to be determined. Mt. Sterling is a city of the fourth class. By section 3490, Kentucky Statutes, for the government of cities of this class, the board of council, in addition to other powers therein granted, has power, within the city, "to pass ordinances not in conflict with the Constitution or laws of this State or of the United States" (subsection 1); "to pass ordinances inflicting fines on drunkenness and breaches of the peace, for keeping gaming houses, bawdy or disorderly houses of any kind; to restrain, suppress and punish indecent or obscene conduct or exhibition or the use of obscene or profane language" (subsection 14); also, "to make by-laws and ordinances for the carrying into effect of all the powers granted for the government of the city and to do all things properly belonging to the police of incorporated cities" (subsection 33). By section 3495 it is further provided that "arrests may be made for drunkenness or disorderly conduct at any time without warrant." By section 3513 the police court of the city is given jurisdiction, among other things, "over affrays, riots and routs, breaches of the peace, unlawful assemblies and cases of indecent or immoral behavior, or conduct calculated to disturb the peace and dignity of said town," and of "all offenses arising out of ordinances enacted by the council for the enforcement of the powers granted them by law." The ordinance of the town under which appellee was arrested and tried is as follows: "Whoever shall be guilty of any boisterous or disorderly conduct in the city of Mt. Sterling shall be fined not less than five or more than twenty dollars." Boisterous or disorderly conduct is certainly covered by the provision of the charter for the punishment of "conduct calculated to disturb the peace and dignity of said town," and, if there could be any question of this, without doubt regulations for the prevention of such conduct are "things properly belonging to the police of incorporated cities." The act itself expressly recognizes the offense of disorderly conduct, in the provision that arrests may be made for it at any time without warrant. We conclude, therefore, that the city had authority to make the ordinance for the punishment of disorderly conduct.

But it is insisted further that the ordinance is void because it imposes a different penalty from that imposed by the general law for breach of the peace, riot, rout, unlawful assembly, or affray; section 1268, Kentucky Statutes, providing for each of these a fine of not less than one cent nor more than $100, or imprisonment not less than five nor more than sixty days, or both. Section 168 of the Constitution provides: "No municipal ordinance shall fix a penalty for a violation thereof at less than that imposed by statute for the same offense. A conviction or acquittal under either shall constitute a bar to another prosecution for the same offense." The question therefore arises, is the offense of disorderly conduct the same as the offense of a breach of the peace, riot, rout, unlawful assembly, or affray? Of course, one who commits a breach of the peace, riot, rout, or affray is necessarily guilty of disorderly conduct but the latter term is not so broad as the former. Conduct may be disorderly, and not be a breach of the peace, or constitute a riot, rout, or affray. In the government of the crowded population of cities, it is necessary to punish many things that in the country may be passed unnoticed. In thickly-settled communities the beginnings of evil must be checked. This is particularly true of conduct often not amounting to a breach of the peace, which is "calculated to disturb the peace and dignity" of the community. Regulations of disorderly conduct are therefore things generally...