Sullivan v. Brawner, Sheriff

• Decision Date: 06 March 1931
• Citation: 237 Ky. 730
• Parties: Sullivan et al. v. Brawner, Sheriff, et al.
• Court: United States State Supreme Court — District of Kentucky

237 Ky. 730

Sullivan et al. v. Brawner, Sheriff, et al.

Court of Appeals of Kentucky.

Decided March 6, 1931.

1. Pleading. — In action to restrain enforcement of allegedly unconstitutional statute, demurrer admitted allegations of result which would flow from enforcement.

2. Constitutional Law. — As regards validity, statute attempting to regulate acquisition and disposition of certain used, or new and mutilated metallic articles, held applicable to every one, not only junk dealers (Acts 1930, c. 171).

3. Statutes. — Statute, so vague that court cannot determine Legislature's intention with reasonable certainty will be declared void.

4. Statutes. — Statute, so incomplete or conflicting in provisions that it cannot be executed, will be declared void.

5. Criminal Law. — Criminal statutes should be so clear and explicit that all of ordinary intelligence, subject to penalties, may understand it.

6. Constitutional Law. — If meaning of criminal statute cannot be judicially ascertained, court may not supply deficiency.

7. Constitutional Law. — If criminal statute omits, in defining offense, necessary provisions which go to impress acts as being criminal, courts cannot supply deficiency.

8. Constitutional Law. — Court may not assume legislative function.

9. Criminal Law. — Section creating offense of buying, "with intent to defraud," certain second-hand, or new and mutilated, metallic articles, held invalid for uncertainty (Acts 1930, c. 171, sec. 1).

Acts 1930, c. 171, sec. 1, making it offense to buy proscribed articles "with intent to defraud" is invalid because language is so vague, indefinite, and uncertain as to be incapable of enforcement, there being no indication either in the phrase "with intent to defraud" itself or in the context to whom phrase applies, statute throwing no light upon whether it was intended to punish buyer if he intended to defraud seller, or if he intended to defraud persons to whom he might sell or exchange purchased article, or some person who might own or have some interest in it.

10. Constitutional Law. — Legislature may not arbitrarily declare certain facts prima facie evidence of principal fact in absence of reasonable or logical connection with latter or fitness to induce conviction of its existence.

11. Constitutional Law. — Section creating offense of buying certain metallic articles "with intent to defraud," making proof of noncompliance with any one of numerous intricate requirements, some of which had no revelancy to establish guilt, prima facie evidence of guilt, held void as exceeding legislative powers (Acts 1930, c. 171, secs. 1, 2).

12. Searches and Seizures. — Provision requiring buyer of certain used, or new and mutilated, articles to permit inspection thereof at any time within 15-day period by certain officers "or any person interested" held unconstitutional [Constitution, sec. 10; Acts 1930, c. 171, sec. 2, subd. (e)].

13. Searches and Seizures. — Statute enforcing unreasonable searches and seizures against will or consent of person whose property or premises are searched is unconstitutional (Constitution, sec. 10). 10).

Appeal from Franklin Circuit Court.

ALLEN PREWITT and E.C. O'REAR for appellants.

J.W. CAMMACK, Attorney General, and S.H. BROWN, Assistant Attorney General, for appellees.

OPINION OF THE COURT BY JUDGE THOMAS.

Reversing.

The appellant and one of the plaintiffs below, Michael G. Sullivan, is a local dealer in junk and operates his business in Frankfort, Ky., which consists in purchasing junk in varied quantities from the owners, the minimum price of each individual purchase being ten cents or less, and of only one small article to and embracing many, all of which may, or may not, be of the same class or quality. Plaintiff, Munich & Co., is a partnership composed of Max and Edwin Munich, who are what might be termed "wholesale" dealers in junk, and they operate their business in Lexington, Ky., buying the goods in which they deal mostly from local dealers of the type of plaintiff, Sullivan, and in large quantities, and they do not purchase in that manner until after receiving an order from their customors located in various parts of the country, and which orders, according to the averments of the petition, must be filled promptly because of the constant fluctuation in prices of the character of goods handled.

The two concerns, in their operating names, filed this equity action in the Franklin circuit court against appellee and defendant below, Murray Brawner, sheriff of Franklin county, and other named enforcement officers, whereby plaintiffs attacked the validity of chapter 171 of the session acts of 1930, the title to which reads:

"An Act to regulate the buying or receiving, selling or disposing of, used or second-hand or of new but broken or mutilated articles made of brass, copper, zinc, or lead, or of any composition of which the said metals or either of them are a part; or copper wire; and, prescribing penalties for violations thereof."

Its section 1 enacts:

"That any person who shall buy or receive, sell or dispose of, in person or by agent upon behalf of himself or any other person, firm, or corporation, used or second-hand, or new but broken or mutilated, brass, copper, zinc or lead, or of any composition of which the said metals or either of them are a part, or copper wire, with intent to defraud, shall be guilty of a felony, and, upon conviction thereof, shall be confined in the penitentiary, not less than one nor more than five years; or, in the discretion of the court, be confined in jail not less than six months nor more than one year and fined not less than one hundred nor more than one thousand dollars. If upon the trial of one charged with a violation of this section, it be proved that the defendant bought or received, sold or disposed of, any metal article or substance hereinbefore named, and that the defendant in so doing had failed to comply with one or more of the requirements of the following section, such proof shall be deemed prima facie evidence of the defendant's guilt." (Our emphasis.)

The first part of section 2 defines the word "buyer" to include any one who, by himself, agent, or employee, or any firm or corporation or any agent or employee of it, or by or through such agent or employee, buys or receives "any or either of the metal articles or substances, specified in the preceding section"; while the word "seller" is defined as including "any person or persons who shall sell or deliver to another any or either of the metal articles or substances mentioned in the preceeding section." Subdivision (a) of the same section (2) prescribes that, when any of the metal articles or substances mentioned in section 1 are purchased, the buyer shall take from the seller a written statement signed by him and giving his full name, place of residence, and post office address, his business and occupation, and a full description of the article, the date of purchase, the name of the seller, and stating that the seller is the owner thereof, and that such statements shall be sworn to by the seller before an officer authorized to administer an oath.

Its subdivision (b) prescribes that, when such required writing is executed and delivered to the buyer, he shall indorse thereon whether or not the seller is personally known to him, and, if not, that he shall then obtain a sworn statement from some reputable person stating that the seller is known to him and that he is personally acquainted with the seller. Subdivision (c) of the same section prescribes that the buyer, whenever he purchases an article or articles in any single transaction, shall cause it or them to be placed in a container unmingled with any other property, and which container shall be plainly marked with a separate and individual number, and the article so placed therein shall remain so unmingled and not sold or otherwise disposed of for fifteen days from the date of the purchase and upon the premises of the buyer and at his place of business, if he has one within the commonwealth, but, if none, then at some place within the state.

Subdivision (d) of the same section prescribes that the buyer after making his purchase, and obtaining the affidavits referred to, shall write upon them the number of the container in which the article or articles so purchased are deposited and a description and location of the premises where the container is located in which the articles are deposited, and which shall be sufficient to identify and locate the premises, the container, and the articles, and that he shall "not later than the next Saturday next following such purchase, transmit such statement, together with all written identifications taken in connection therewith, as hereinbefore provided, either in person or by registered mail, to the Sheriff of the county in which such purchase is made," where they are to become a public record and be preserved by that officer in his office and be open to inspection at all reasonable hours "by any person whatsoever." Subdivision (e) of the same section compels the buyer to admit the sheriff or any of his deputies, or prosecuting attorney "or any person interested in such articles," upon his premises at any time to locate the containers and to examine and inspect them and all articles deposited therein. It also prescribes that the buyer shall be guilty of a misdemeanor if he fails to carry out and perform "any one or more of the requirements imposed upon him by the act as hereinbefore enumerated." Section 3 of the act prohibits the purchaser from buying any such article or obtaining it through exchange or otherwise from a minor or apprentice, provided he knows, or has reason to believe, the seller to be such, and punishes a violation thereof the same as is prescribed in section 1 of the act for purchasing any of the enumerated articles "with intent to defraud."

The petition averred, among other things, that the act was...