Hershberg v. City of Barbourville

• Decision Date: 03 February 1911
• Citation: 133 S.W. 985,142 Ky. 60
• Parties: HERSHBERG v. CITY OF BARBOURVILLE.
• Court: Kentucky Court of Appeals

133 S.W. 985

142 Ky. 60

HERSHBERG v. CITY OF BARBOURVILLE.

Court of Appeals of Kentucky.

February 3, 1911

Appeal from Circuit Court, Knox County.

Action by Henry M. Hershberg against the City of Barbourville. From a judgment sustaining a demurrer to petition, plaintiff appeals. Affirmed.

Frank Baker, J. H. Wilson, and T. D. Tinsley, for appellant.

J. Fred Catron, for appellee.

HOBSON C.J.

Barbourville is a city of the fifth class. The board of council of the city enacted the following ordinance: "That if any person shall smoke a cigarette or cigarettes within the corporate limits of the city of Barbourville after such person shall have had actual notice of the passage of this ordinance, he shall be deemed guilty of a misdemeanor and upon conviction shall be fined not less than one dollar nor more than fifteen dollars, for each offense." The police judge issued a warrant against Henry M. Hershberg, in which he was charged with having violated the ordinance by smoking cigarettes in the city. He was arrested by the Marshall under the warrant and taken before the police judge for trial. Upon a trial of the case he was found guilty and fined. He failed to pay the fine and was committed to jail upon its nonpayment. Thereupon he brought this suit against the city alleging that the ordinance was illegal and void, and that he was unlawfully arrested and imprisoned by reason thereof to his damage in the sum of $5,000, for which he prayed judgment. The circuit court sustained a general demurrer to his petition, and, he declining to plead further, dismissed it. He appeals.

The circuit court in a written opinion held the ordinance void as an unreasonable invasion of the citizen's right of personal liberty. We concur in the conclusion that it is not a reasonable ordinance, and that the circuit court properly so held. Commonwealth v. Campbell, 133 Ky 50, 117 S.W. 383, 24 L.R.A. (N. S.) 172. The ordinance is so broad as to prohibit one from smoking a cigarette in his own home or on any private premises in the city. To prohibit the smoking of cigarettes in the citizen's own home or on other private premises is an invasion of his right to control his own personal indulgences. The city council is authorized by statute to enact and enforce all such local, police sanitary, and other regulations as do not conflict with general laws. Ky. St. § 3637, subd. 7 (Russell's St. § 1643, subd. 6). But under this power it may not unreasonably interfere with the right of the citizen to determine for himself such personal matters. If the council may prohibit cigarette smoking in the city, it may prohibit pipe smoking or cigar smoking, or any other use of tobacco. The Legislature did not contemplate conferring such power upon the council. If the ordinance had provided a penalty for smoking cigarettes on the streets of the city, a different question would be presented; but whether such an ordinance would be valid is a question not now presented or decided.

It is insisted for appellant that, as the ordinance is void, his arrest was unwarranted, and the city is liable to him therefor. In support of this conclusion his counsel cites the case of McGraw v. Town of Marion, 98 Ky. 673, 34 S.W. 18, 17 Ky. Law Rep. 1254, 47 L.R.A. 593, in which it was held that a recovery might be had against the municipality in a case like this. But that case was in effect overruled in Board of Park Commissioners v. Prinz, 127 Ky. 460 105 S.W. 948, 32 Ky. Law Rep. 359, and, as there shown, it is contrary to both the previous and subsequent decisions of the court. In Taylor v. City of Owensboro, 98 Ky. 271 32 S.W. 948, 17 Ky. Law Rep. 856, 56 Am.St.Rep. 361, a city ordinance provided a different penalty for an offense from that prescribed by the statute, and was for that reason held void. Taylor, who had been fined and imprisoned under the ordinance, sued the city for damages. The court held that Taylor had committed a public offense, and that, this being shown by the warrant, he had not been illegally imprisoned. The court then added: "Had there been no statute imposing a fine, etc., for a breach of the peace, then the question as to the effect of such judgment would be a different question from the one presented in this case. However, that would not affect the question as to the liability of the city. Municipal governments are auxiliaries of the state government. They are created principally to aid in securing a proper government of the people within the boundaries of such municipalities, and to make more effectual the maintenance of public order." In Bean v. Middlesborough, 57 S.W. 478, ...