Commonwealth v. Duff

• Decision Date: 06 December 1888
• Citation: 87 Ky. 586,9 S.W. 816
• Parties: COMMONWEALTH v. DUFF.
• Court: Kentucky Court of Appeals

9 S.W. 816

87 Ky. 586

COMMONWEALTH v. DUFF.

Court of Appeals of Kentucky.

December 6, 1888

Appeal from circuit court, Jefferson county; WILLIAM L. JACKSON Judge.

Samuel B. Duff was indicted for violation of the election law. A demurrer to the indictment was sustained, and the commonwealth appealed.

P. W Hardin and B. F. Buckner, for the Commonwealth. Aaron Kohn for appellee.

LEWIS C.J.

This is an appeal by the commonwealth from a judgment sustaining a demurrer to and dismissing an indictment against appellee for the crime of making up a false and fraudulent poll-book of an election for mayor and general council of the city of Louisville, charged to have been committed in the following manner: That he, being duly appointed and qualified to act as clerk of said election at a certain designated precinct, and requested by qualified voters, whose names are set out, to record their several votes for ----- Avery, who was then a candidate for the office of mayor, willfully, falsely, and feloniously recorded them for ---- Jacob, who was also then a candidate for said office of mayor; and that in like manner, and with like intent, he recorded the several votes of said persons in favor of Baker, a candidate for the office of councilman, when they had requested him to record them for Millet, a candidate for the same office. A general demurrer to the indictment filed in December, 1887, was overruled; but in February, 1888, another demurrer was filed, the cause of which, as stated, is that the court had no jurisdiction to try the case, as after the indictment was returned the law upon which the prosecution is based was repealed by the general assembly without any saving clause as to pending prosecutions, and that demurrer was sustained. The offense for which appellee was indicted is described by section 5, art. 12, c. 33, Gen. St., which provides that any officer who shall make, or aid in making, or authorize the making up of, any false or fraudulent poll-book, or certificate of an election, or election return, shall be confined in the penitentiary from one to five years, forfeit any office he then holds, and be disqualified from holding any office. As the offense charged was alleged to have been committed by him as clerk of the election, in making a false entry on the poll-book of votes actually cast and recorded, and not for recording illegal, or refusing to record legal, votes, about neither of which he had any legal discretion, it is not material whether the persons whose votes he then entered were or not legally registered voters.

2. Making up a fraudulent poll-book in the mode described in the indictment is a single offense, whether consisting of the false entry of one or more votes, or of votes for one or more candidates for office, and no question of misjoinder of offenses arises in this case.

3. It is contended that, as the alleged offense was committed by an officer of a municipal election, the statute we have quoted has no application. If that position be correct, there exist no regulations for securing free and fair municipal elections in the city of Louisville, unless they have been adopted by the general council. But even if the power to make the necessary regulations could be delegated by the general assembly to the municipal legislature, it has not been done by the city charter, nor can the existence of such power be implied. "The laws of the state operate within the limits of municipal corporations, and upon the inhabitants of the same, as elsewhere, unless it is otherwise clearly provided in the charter or by some statute of the state, and unless so provided, in case of conflict between laws and by-laws, the latter must give away." 1 Dill. Mun. Corp § 367. "A general grant of power, such as authority to make by-laws for the good government of the place, and the like, should not be held to confer authority upon the corporation to make an ordinance punishing an act, which is made punishable as a criminal offense by the laws of the state." Id. § 368. As said by this court in March v. Com., 12 B. Mon. 25, the presumption cannot be indulged that the legislature intended that an ordinance passed by the city council should be superior to and take the place of the general law of the state upon the subject. As, therefore, the general council of the city of Louisville neither possesses, nor so far as the record shows has attempted to exercise, the power of providing, by ordinance, punishment for offenses committed by officers of municipal elections, they are not punishable at all, if not by the general law of the state; and inasmuch as the power to regulate elections of officers...