Commonwealth v. Barrett

• Decision Date: 27 October 1891
• Citation: 17 S.W. 336
• Parties: Commonwealth v. Barrett.
• Court: Kentucky Court of Appeals

17 S.W. 336

Commonwealth v. Barrett.

Court of Appeals of Kentucky.

October 27, 1891

Appeal from circuit court, Carroll county.

"Not to be officially reported."

T. M Barrett was indicted for maintaining an unlawful fence. He was acquitted, and the commonwealth appeals. Affirmed.

Holt C.J.

May 12 1890, an act was passed by the legislature, declaring that after the end of that year it should be unlawful to have any kind of wire save that which is smooth and round in any fence along the public roads of Carroll county. A penalty was provided for its violation; but its becoming effective was conditioned upon its approval by a majority of the voters of the county at the August election, 1890. The act fixed the time for holding the election, and also provided that the sheriff of the county should, in three consecutive issues of the local newspaper, give notice of it, and its object. It also required the result to be published at least twice in the same paper. There were other requirements relative to the election, but, as they were complied with, it is unnecessary to mention them. No notice signed by the sheriff was ever published. He caused a substantially correct copy of the act to be published in three successive issues of the newspaper indicated, but his name did not appear in connection with it nor did the date of the enactment of the law. The publication was altogether unofficial, so far as shown upon its face. The result, which was favorable to the law, was never published in the newspaper but once, and then unofficially. There is no brief on file for the appellee. From the opinion of the lower court however, he appears to have claimed that the law is unconstitutional, because it in effect takes away his property without due process of law. It provides, however, not for a deprivation, but a regulation of the use of property. Under the exercise of the police power by the legislature private comfort and interest must yield to the public welfare. The use of property may be so regulated as to insure public safety. Every owner takes his property subject to this condition. It is true, we are, and well may be, proud of the fact that our constitution guaranties the security of life, liberty, and property, and that the possessor cannot be deprived of them save by the judgment of his peers, or the law of the land; but, necessarily, legislative discretion must have considerable latitude in so regulating the use of property as to avoid injuries to the public. If railroads may be required by the legislature to fence their tracks, why may not persons, who hold their property subject to the implied condition that it shall not be so used as to injure the community, be required, if it be of a character likely to do so, not to expose it, and thus prevent injury to others? Undoubtedly such a legislative right exists. It is but an exercise of the police power, vital to all communities. It is this rule that permits the legislative regulation of the sale of liquor, the keeping of gunpowder in large quantities in a...