McNulty v. Toopf

• Decision Date: 20 June 1903
• Citation: 116 Ky. 202,75 S.W. 258
• Parties: McNULTY et al. v. TOOPF et al.
• Court: Kentucky Court of Appeals

75 S.W. 258

116 Ky. 202

McNULTY et al. v. TOOPF et al.

Court of Appeals of Kentucky.

June 20, 1903

Appeal from Circuit Court, McCracken County.

"To be officially reported."

Action by F. P. Toopf and others against James McNulty and others. From a judgment in favor of defendants, plaintiffs appeal. Reversed.

Thos E. Moss, for appellants.

Read &amp Berry, for appellees.

O'REAR J.

This proceeding and appeal involves the validity of the following ordinance, passed by the general council of the city of Paducah, a city of the second class:

"An ordinance prohibiting the selling, dispensing or giving away of any spirituous, vinous or malt liquors, between the hours of 10:30 o'clock p. m. and 5 o'clock a. m closing saloons, coffee houses and like places of business during said hours; providing for the removal of obstructions to an interior view from the exterior and front of any building occupied by a saloon, coffee house or like business or calling, on certain days and certain hours, and prescribing penalties for violation of its provisions.

"Be it ordained by the General Council of the City of Paducah, Ky.

"Section 1. That it shall be unlawful for any saloon, coffee house or other place where spirituous, vinous or malt liquors are sold by the drink in the city of Paducah, to sell, offer for sale or give away either or any of said liquors between the hours of 10:30 p. m. and 5 o'clock a. m.

"Sec. 2. That each and every saloon, coffee house or other place where spirituous vinous or malt liquors are sold by the drink, in the city of Paducah, shall be tightly closed, front side and rear at 10:30 o'clock p. m. and the same shall not be reopened until 5 o'clock a. m. the succeeding morning, and the entrance to or exit from any saloon, coffee house, or other place where spirituous, vinous or malt liquors are sold by the drink in the city of Paducah by any person or persons during the time herein specified that same shall be closed, shall be held as prima facie evidence of a violation of this section.

"Sec. 3. That whereas the police of the city are deterred by the regulations governing the police department from entering the saloons, each and every saloon, coffee house or other place where spirituous, vinous or malt liquors are sold by the drink in the city of Paducah, shall in the front doors and front partitions of same, hoist all blinds, open all screens, remove stained glass or frosted windows, and remove boxes or merchandise, and any other matter or thing which may obstruct the view of the interior of such place from the front thereof on all days now fixed by the state law that these places shall be closed, and between the hours of 10:30 p. m. and 5 o'clock a. m. as provided for closed hours in the preceding section.

"Sec. 4. That it shall be unlawful for any druggist, grocery-man, wholesale liquor dealer, or other person, to dispense, sell or give away any spirituous, vinous or malt liquors between the hours of 10:30 o'clock p. m. and 5 o'clock a. m.

"Sec. 5. That for the violation of any of the provisions of any of the foregoing sections, the offender, upon conviction of the first offense, shall be fined any amount not less than ten dollars ($10.00) nor more than fifteen dollars ($15.00), upon the conviction of the second offense, the offender shall be fined in any amount not less than fifty dollars ($50.00) nor more than sixty dollars ($60.00), upon conviction of the third offense, the offender shall be fined in any amount not less than seventy-five dollars ($75.00) nor more than one hundred dollars ($100.00) and in addition thereto the license to sell spirituous, vinous, or malt liquors, in the city of Paducah, issued to such offending person, or firm, shall be forfeited.

"Sec. 6. That all ordinances, or parts of ordinances, conflicting with any of the provisions of this ordinance, are to the extent of such confliction, hereby repealed, and this ordinance shall take effect from and after its passage and approval.

"Adopted by the Council Nov. 17th, 1902.

"Chas. Reed, Prest.

"Adopted by the Board of Aldermen, Dec. 4th, 1902. Chas. Q. C. Leigh, Prest.

"Approved Dec. 19th, 1902.

"D. A. Yeiser, Mayor."

The first objection to the ordinance is, it is claimed, that its title embraces more than one subject, and is therefore repugnant to section 3059 of the Statutes, namely: "No ordinance shall embrace more than one subject, and that shall be expressed in the title." The court is of the opinion that the fact that the subject-matter is detailed in the title more minutely than is necessary does not invalidate the ordinance. Allen v. Hall, 14 Bush, 85. What this title really means, and the sum of it is, that the ordinance is one "to further regulate the sale of spirituous vinous, and malt liquors in the city of Paducah." The main objection to the provisions of this ordinance is, it is argued, that it is an improper exercise of the police power of the state. Among the powers conferred upthe municipalities of cities of the second class is that (subsection 10, § 3058, Ky. St.): "To restrain, regulate and prohibit the selling or giving away of any spirituous, vinous or malt liquors, by any person within the city other than those duly licensed; to forbid and punish the selling or giving away of any spirituous, vinous or malt liquor to any woman, minor, or habitual drunkard." Subsection 23, § 3058: "To impose, enforce and collect fines, forfeitures and penalties...