City of Paducah v. Ragsdale

• Decision Date: 22 March 1906
• Citation: 122 Ky. 425,92 S.W. 13
• Parties: CITY OF PADUCAH v. RAGSDALE et al.
• Court: Kentucky Court of Appeals

92 S.W. 13

122 Ky. 425

CITY OF PADUCAH v. RAGSDALE et al.

Court of Appeals of Kentucky.

March 22, 1906

Appeal from Police Court of Paducah.

"To be officially reported."

Controversy between the city of Paducah and S. P. Ragsdale and others. From the judgment, the city appeals. Reversed.

T. B Harrison and A. B. Barkley, for appellant.

O'REAR J.

This appeal is prosecuted under the provision of section 3063, Ky St. 1903, from a judgment of the police court of Paducah, a city of the second class, declaring invalid the following ordinance duly enacted by the city's legislative department:

"An ordinance to prevent certain animals of the bovine kind from running at large in the city of Paducah.

"Be it ordained by the general council of the city of Paducah, Kentucky:

"Section 1. That no cow, calf, or other animal of the bovine kind, shall be permitted to go at large upon any of the streets, alleys, or unenclosed lots or ground in the city of Paducah. The foregoing shall not apply where such animals are being driven through the city or from one place to another, for the purpose of being slaughtered, or to be placed in any pen or enclosure. Should any such animal be found going at large in violation of this ordinance, the same may be taken up by any policeman, or other person appointed by the chief of police, and taken to some place provided by the city, for the confinement of such animals, and there kept until released by law or under the provisions of this ordinance.

"Sec. 2. The officer taking up any animal under the last section shall forthwith make a statement of the fact in writing under oath, stating the name of the owner, if known, and file said statement in the Paducah city court, where it shall be kept as part of the record of said court. If said statement shall disclose the name of the owner of such animal, the judge of said court shall issue a summons against said owner, commanding him to appear in said court to show cause, if any he can, why he shall not be fined $5 for violation of the preceding section, and why such animal shall not be sold to satisfy the cost and charges of taking up, keeping or selling same. If said affidavit shall state that the owner of such animal is unknown, or absent from McCracken county, Kentucky, the court shall make a warning order on said affidavit, warning said owner to appear in said court within five days after that date and show cause why such animal shall not be sold to satisfy the cost and charges of taking up, keeping and selling such animal; and the court shall appoint a regular practising attorney in said court to defend for such absent or unknown owner, if, when such owner has been duly summoned or warned as herein provided, the court shall determine that there has been a violation of said section by such animal having run at large within the limits of said city, then the court shall make an order describing said animal and the mark thereon, and direct the chief of police to sell same at public outcry to the highest bidder for cash in hand. The chief of police shall sell such animal, and out of the proceeds pay the costs and charges of such proceedings, and the remainder, if any, he shall pay over to the city treasurer, to be held by him subject to the order of said owner, but if said owner has not been actually summoned, no sale of such animal shall be made until notice of such sale has been published in some newspaper, published in Paducah, at least three days before such sale, decribing the animal to be sold.

"Sec. 3. If the owner of any such animal taken up as provided for in the two preceding sections, shall appear before the court at any time before the sale as provided for in the last section and pay all costs and charges for the taking up, impounding and keeping of such animal, and all the cost, the court shall order the restoration of such animal to the owner.

"Sec. 4. The officer taking up any animal under the preceding sections, shall be allowed his fees and costs, to be paid and collected only out of the proceeds of such animal, or out of the fines and costs assessed against such owner, and there shall be taxed as costs in each case the following fees: To the officer taking up such animal, 50 cents for each animal, and 50 cents per -- each day for the keeping of each animal while impounded.

"Sec. 5. Whoever shall unlawfully molest or prevent any officer from taking up and impounding any such animal, or shall open the enclosure in which such animal is impounded for the purpose of releasing such animal, shall be fined not less than $5 nor more than $20 for each offense.

"Sec. 6. So much of any ordinance now existing in conflict with this ordinance is hereby repealed.

"Sec. 7. This ordinance shall be in force from its passage and approval and publication.

"Adopted May 4, 1905, by the board of aldermen.

"Adopted May 16, 1905, by the board of councilmen.

"Approved by the mayor of Paducah June 5, 1905."

As the judge of the police court stated his reasons at some length in his judgment, we will discuss and dispose of them in the order presented.

1. It was held that the ordinance was probably defective because it took effect immediately, and gave the owners of cattle in the city no notice by which they could regulate themselves and their property according to the new conditions. The statutes provide that ordinances shall be passed only under certain formalities, as to publication and the like. It was intended by these provisions that citizens and all others concerned should, at their peril, keep posted concerning enactments of ordinances affecting the city's welfare and government. But in the absence of such statutory regulation, admitting that the ordinance was within the power granted to the municipality, there is no constitutional provision requiring previous notice of the enactment of an ordinance before it shall become effective. All ordinances, when regularly adopted, are necessarily matters of public record, of which everybody who may be concerned by them must take notice. The only restriction on this point in the Constitution is that no ex post facto law shall ever be adopted. This ordinance is in no sense subject to that vice. It operated alone on future acts.

2. It was thought the ordinance embraced more than one subject. The subject of this ordinance is the prevention of certain cattle from running at large in the city. Various features of the subject are treated by different sections of the ordinance. All are germane to the subject named. A full discussion of this question may be found in the court's recent opinion in City of Louisville v. Wehmhoff, etc., 116 Ky. 812, 176 S.W. 876, 79 S.W. 201.

3. The police court held that the effect of the ordinance was to require the owner to appear in court and prove...