City of Owensboro v. Sparks

• Decision Date: 29 May 1896
• Citation: 99 Ky. 351
• Parties: City of Owensboro v. Sparks.
• Court: Kentucky Court of Appeals

Page 351

99 Ky. 351

City of Owensboro v. Sparks.

Court of Appeals of Kentucky.

May 29, 1896.

APPEAL FROM DAVIESS CIRCUIT COURT.

POWERS & ATCHISON AND LaVEGA CLEMENTS FOR APPELLANTS.

C. S. WALKER FOR APPELLEE.

JUDGE LANDES DELIVERED THE OPINION OF THE COURT.

The board of council of the city of Owensboro, which is a city of the third class, passed an ordinance, which was approved June 4, 1894, designated as "Ordinance No. 50," for the purpose of punishing gaming in the city, and which is as follows: "That any person or persons who shall, in or on any house-boat, float, tenement, of such house-boat, float or premises, or shall on any of the streets, alleys, sidewalks or public grounds of the city, engage in any game of hazard, at which money or property is bet, won or lost, such person or persons engaged in such game or games shall each be fined for each game thus played not less than fifty nor more than one hundred dollars."

In the following August the appellee, who was charged with violating the said ordinance, was arrested by virtue of a warrant issued by the police judge of the city of Owensboro, and brought before the police court to answer the charge. A demurrer to the warrant was entered by him, which was overruled by the court, and the court having set the case for trial, the appellee brought suit in the Daviess Circuit Court against the city and the judge of the police court, seeking to prohibit them from proceeding against the appellee under the ordinance, with alleged ground that the police court had no jurisdiction to enforce the ordinance, which it was alleged, was passed by the board of council without constitutional or legislative authority, and was, therefore, null and void.

At the commencement of the action the judge of the circuit court issued a temporary order or writ of prohibition, and, on final hearing of the case, adjudging that the ordinance was passed without authority, and that it was invalid, perpetuated the order of prohibition, and adjudged the costs of the action against the appellants, and that judgment is before us on this appeal.

We have not been able to find in the act for the government of cities of the third class or in the Kentucky Statutes any special provision for testing the validity of ordinances passed by the municipal legislative board. In the absence of such provisions with reference to ordinances of cities of this class, the only method for testing the validity of any such ordinance is that of appeal from the judgment of the police court enforcing it, and such appeal must be prosecuted in the way provided for prosecuting appeals in other cases.

Section 25 of the Criminal Code authorizes the circuit court of any county by writ of prohibition to "restrain all other courts of inferior jurisdiction in the limits of the county from exceeding their criminal jurisdiction."

But this remedy is not applicable in this case because under the statute (Kentucky Statutes, section 3359) the police court of the city of Owensboro has "concurrent jurisdiction with the justices of the peace of all violations of the laws of the Commonwealth occurring within the corporate limits of the city." And justices of the peace have jurisdiction, exclusive of circuit courts, "in all penal cases, the punishment of which is limited to a fine not exceeding twenty dollars;" and jurisdiction concurrent with circuit courts "of all penal cases, the punishment of which is limited to a fine not exceeding one hundred dollars, or imprisonment not exceeding fifty days, or both." (Kentucky Statutes, section 1093.)

The statute punishing gaming (Kentucky Statutes, section 1977), which is manifestly the same offense which the ordinance in...