March v. Commonwealth
| Decision Date | 12 June 1851 |
| Citation | 51 Ky. 25 |
| Parties | March v. Commonwealth. |
| Court | Kentucky Court of Appeals |
By-Laws. Lexington City Court.
APPEAL FROM THE LEXINGTON CITY COURT.
Robertson, for plaintiff.
Harlan, Attorney General, for Commonwealth.
The case stated.
THE appellant was indicted in the Lexington City Court, for an offense alleged to have been committed by him in the City of Lexington. The indictment contains two counts. In the first he is charged with having committed an assault and battery on the person of a female. The second count is for an assault and battery on the person of the same female, with an intent to commit a rape.
The jury found him guilty of an assault, and assessed against him a fine of one thousand dollars. A motion was made in arrest of judgment, upon the ground that the proceeding should have been by warrant in the name of the city, and not by indictment, and that the fine assessed should not have exceeded the sum of one hundred dollars. The motion in arrest of judgment was overruled, and the defendant has appealed to this Court.
Judgment of the Circuit Court.
It is assigned for error, that the Court below erred, in overruling the appellant's motion to arrest the judgment. The argument in support of this position is, that, by an ordinance of the City of Lexington, a person who commits a breach of the peace within the city, is subject to be punished by a fine not exceeding one hundred dollars, to be assessed by a jury; that the offense of which the defendant was found guilty is a mere breach of the peace and nothing more, and that as the offense is punishable under a city ordinance, no other punishment can be inflicted than that which the ordinance provides, the adoption of the ordinance being a virtual repeal of all laws imposing another or a different penalty.
Errors now assigned in the judgment below.
To enable us to test the merits of this argument, it becomes necessary to notice several legislative provisions upon the subject, as upon a correct construction of them, a solution of the question involved in it, mainly depends.
Provisions of the act of 1840, in respect to the City of Louisville and other cities in Kentucky (3 Stat. Law, 571).
By an act passed in February, 1840 (3 Statute Law, 571) it was enacted, that " all the ordinances of the City of Louisville made, or to be made, not in violation of the Constitution of this, or of the United States, shall be held to be valid and in full force, as though there was no legislative act upon the subject; and in suits or prosecutions under such ordinances, the fines and penalties provided for shall be enforced, notwithstanding the existence of such legislative act."
The amendatory act of 1842 (3 Stat. Law, 244).
That provision was contained in the first section of the act; and in the fifth section of the same act, it was enacted, " that the provisions of the first section of this act shall extend to the City of Maysville, and to all other cities in the Commonwealth, in the same manner as if Maysville and the other cities had been named in conjunction with Louisville; and when the charter of the City of Louisville, or any other city vests power in city authorities to regulate any subject by ordinance, on which the Legislature may have passed a law, the ordinance so passed shall be enforced in all respects as if no legislative act had been passed on the subject."
In 1842, an act was passed, entitled " an act to reduce into one, and digest and amend the acts and amendatory acts, incorporating the City of Lexington" (Session Acts, 1841-2, page 244). The following sections of the act have a bearing upon the question under consideration:
SEC. 71. All penalties for breaches of the ordinances and by-laws of the city, shall be sued for by warrant in the name of the city, and be for its use.
SEC. 63. The City Court shall have exclusive original jurisdiction in all prosecutions for violations of the ordinances of said city.
SEC. 65. Said Court shall have concurrent jurisdiction with the Fayette Circuit Court in prosecutions by indictment, or presentment, for breaches of the peace, nuisances, and violations of the statutes against gaming, occurring in the City of Lexington; and may cause to be summoned a grand jury to inquire into such of the offenses cognizable in said Court, as may be indictable or presentable; and proceedings shall be instituted and prosecuted in such cases in the same way that proceedings are had in the Circuit Court in similar cases, and the verdicts and judgments in such cases, shall be of the same character, and for the same amounts with those rendered in similar cases in the Circuit Court. But any person prosecuted to conviction, or acquitted, for a violation of the ordinances of the city, shall not be afterward prosecuted by indictment or presentment, for the same offense, and vice versa. "
By an act passed in 1845 (Session Acts, 1844, 1845, page 196), exclusive jurisdiction of all pleas of the Commonwealth arising within the limits of the city of Lexington, except cases of felony, was vested in the City Court.
Act of 1844-5.
In 1842, the mayor and board of councilmen of the City of Lexington passed an ordinance, that any free person who shall commit a riot or breach of the peace, within the city, shall, for every such offense forfeit and pay to the city, a sum not exceeding one hundred dollars, to be assessed by a jury.
No bill of exceptions was filed in the Court below, nor is the above ordinance made a part of the...
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