Roberts v. Hackney

• Citation: 58 S.W. 810,109 Ky. 265
• Parties: ROBERTS v. HACKNEY. [1]
• Decision Date: 25 October 1900
• Court: Court of Appeals of Kentucky

58 S.W. 810

109 Ky. 265

ROBERTS v. HACKNEY. ^[1]

Court of Appeals of Kentucky.

October 25, 1900

Appeal from circuit court, Laurel county.

"To be officially reported."

Action by J. Roberts against E. H. Hackney to recover damages for false imprisonment. Judgment for defendant, and plaintiff appeals. Reversed.

J. W Alcorn and J. A. Craft, for appellant.

Tinsley & Faulkner and C. R. Brock, for appellee.

HOBSON J.

Appellee was chairman of the board of trustees of Lindon, Ky. a town of the sixth class. He had reason to believe intoxicants were being sold in town contrary to law, and summoned appellant before him to inquire of him, under oath, the name of the offender. Appellant appeared, and refused to answer any questions. Appellee thereupon committed him to jail for five hours. After his release from custody, appellant filed this suit against appellee to recover damages for the imprisonment. Appellee filed answer pleading his authority to which appellant demurred. The demurrer was overruled, and he standing by his demurrer, his action was dismissed. The petition was defective, but was cured by the answer. A demurrer to an answer cannot be carried back to the petition and sustained to it, when the answer supplies the averments omitted from the petition. The only question in the case is therefore as to the sufficiency of the authority of appellee to do the acts complained of. He relies on sections 26, 32, Cr. Code Prac., which, so far as material, are as follows: "A warrant of arrest may be issued by the following officers, who are called magistrates in this Code, viz.: Judges of the county courts, judges of city or police courts, mayors, chairmen of the trustees of towns and justices of the peace. ***" Section 26. "A magistrate, if satisfied that any public offense has been committed, shall have power to summon before him any person he may think proper for examination on oath concerning it, to enable him to ascertain the offender, and to issue a warrant for his arrest." Section 32. Section 1301, Ky. St., is as follows: "No justice's, county, quarterly or police court or inquiring court shall inflict a fine of more than three dollars or imprison more than six hours." The Criminal Code of Practice went into effect in 1877, and was adopted under the constitution of 1851. We do not find anything in the statutes passed since the adoption of the new constitution expressly repealing these provisions of the Code. Repeals by implication are not favored. The only question we deem it necessary to determine is whether these provisions were repealed by the present constitution.

By the first article of the schedule, it is declared that all laws which are inconsistent with the constitution shall cease upon its adoption, except that all laws which are inconsistent with such provisions as require legislation to enforce them shall remain in force until such legislation is had, but not longer than six years after the adoption of the constitution. The constitution was adopted September 28, 1891. The six years, therefore, expired on September 28, 1897, and before the transaction complained of occurred, which was on August 26, 1898. If, therefore, these provisions of the Code of Practice belong to either of the classes of law above referred to, they were not in effect at the time of the alleged wrongs complained of. By section 1, art. 4, of the constitution of 1851, the judicial power of the commonwealth was vested in one supreme court, "and such courts inferior to the supreme court, as the general assembly may from time to time erect and...