Hyman v. Boldrick

• Decision Date: 21 March 1913
• Citation: 153 Ky. 77,154 S.W. 369
• Parties: HYMAN v. BOLDRICK, Judge.
• Court: Kentucky Court of Appeals

154 S.W. 369

153 Ky. 77

HYMAN v. BOLDRICK, Judge.

Court of Appeals of Kentucky.

March 21, 1913

Appeal from Circuit Court, Jefferson County, Common Pleas Branch First Division.

Petition by E. Hyman for writ of prohibition against S. J. Boldrick Judge. Judgment for respondent, and petitioner appeals. Affirmed.

Edwards Ogden & Peak, of Louisville, for appellant.

Pendleton Beckley and Wm. J. O'Connor, both of Louisville, for appellee.

HOBSON C.J.

The following ordinance is in force in the city of Louisville:

"An ordinance regulating the hours for the transaction of business of pawnbrokers, secondhand dealers, junk merchants and junk dealers in the city of Louisville.

"Be it ordained by the general council of the city of Louisville:

"Section 1. It shall be unlawful for any pawnbroker, secondhand dealer, junk merchant or junk dealer to keep open his store or place of business for the transaction of any business pertaining to such occupations, or to engage in it, conduct or carry on any of said occupations, in whole or part, or directly or indirectly, between the hours of 7:00 o'clock p. m. and 7:00 o'clock a. m., except from December 15th to December 25th of each year, and on Saturdays, when their said stores and places of business may remain open until, but not later than, ten o'clock p. m., for the sale of their goods and wares, but for no other purpose.

"Sec. 2. Any person, firm or corporation violating in any particular any of the provisions of section 1 of this ordinance shall be fined for each offense not less than $5.00, nor more than $20.00, or imprisonment not less than two nor more than ten days; and each day that said violation continues shall constitute a separate offense.

"Sec. 3. All ordinances or parts of ordinances in conflict herewith are hereby repealed.

"Sec. 4. This ordinance shall take effect from and after its adoption and publication."

E. Hyman, who is a licensed secondhand dealer in the city of Louisville, refused to close his store at 7 p. m., as provided by the ordinance, and was arrested for its violation. He was fined in the police court, and took out a writ of prohibition in the Jefferson circuit court to test the validity of the ordinance. The circuit court held the ordinance valid, and Hyman appeals.

The proof for the city on the trial showed these facts: Thieves resort to secondhand stores, especially at night, to dispose of stolen goods, and, as they do this under cover of darkness, it is almost impossible to apprehend them. Housebreakers and other thieves follow their calling usually under cover of darkness, and when they get booty try to dispose of it as soon as possible. If the secondhand stores are not allowed to remain open at night, they will be more easily detected, as they can safely carry things in the darkness which the police could detect in the daylight; and when property has been once sold to a secondhand dealer it is often difficult to find the thief. The detective force of the city of Louisville is kept on duty mostly during the day. The ordinance in question was deemed necessary by the police department; there being much petty thieving in the city, and it being very difficult to catch the thieves in a city of 250,000 people.

It is insisted for the appellant that the ordinance is void because it is class legislation and an unreasonable restraint of trade and of personal liberty. It is insisted that other merchants can keep their stores open at night, and that the restriction as to secondhand dealers is class legislation. In City of Butte v. Paltrovich, 30 Mont. 23, 75 P. 522, 104 Am.St.Rep. 700, the Supreme Court of Montana had the precise question before it, and in answering it said: "The mere fact that appellant's business is legitimate, and specifically recognized as such by legislative enactment, does not render ineffectual the power conferred by subdivision 16, above. The police power is not confined to the regulation of these classes of business which are essentially illegal; for, if illegal, in the sense that they are prohibited by law, it is not easily understood how they could be regulated at all. It is of the very essence of the exercise of police powers that citizens may, for the public good, be constrained in their conduct with reference to matters in themselves lawful and right. Hopper v. Stack, 69 N. J. Law, 562, 56 A. 1. It is not a material inquiry to attempt to ascertain the reason which impelled the Legislature to designate the business of pawnbrokers as subject to police regulations. It is sufficient for us to know that it has done so, and deal with the law as we find it. The fact that appellant cannot...