Taylor v. City of Owensboro

• Citation: 32 S.W. 948,98 Ky. 271
• Parties: TAYLOR v. CITY OF OWENSBORO.
• Decision Date: 16 November 1895
• Court: Court of Appeals of Kentucky

32 S.W. 948

98 Ky. 271

TAYLOR v. CITY OF OWENSBORO.

Court of Appeals of Kentucky.

November 16, 1895

Appeal from circuit court, Daviess county.

"To be officially reported."

Action by Ashby Taylor against the city of Owensboro to recover damages for an alleged wrongful arrest. Defendant had judgment, and plaintiff appeals. Affirmed.

John Feland & Son, for appellant.

J. D Atchison, for appellee.

PAYNTER J.

The appellant instituted action against the city of Owensboro seeking to recover damages for an alleged wrongful arrest conviction, and confinement in the workhouse of the city. It is alleged in the petition, in substance, that C. N Pendleton is the judge of the police court of the city of Owensboro; that, as such officer, he issued a warrant against appellant, charging him with violating an ordinance of the city of Owensboro denouncing a penalty for a breach of the peace; that, by virtue of the warrant, the city marshal arrested him, and carried him before the police court, where he was tried, convicted of a breach of the peace, and adjudged that the city of Owensboro recover of him $100 and costs, and, failing to pay which, he was confined in the workhouse of the city for some time. It is also alleged that the proceedings were under an ordinance which reads as follows, to wit: "Any person or persons who shall within the city of Owensboro be guilty of a riot, rout, unlawful assembly or breach of the peace shall upon conviction be fined not less than ten nor more than one hundred dollars." It is insisted that the ordinance under which the prosecution took place is unconstitutional and void, and therefore appellant is entitled to recover damages of the city. A demurrer was sustained to the petition, and appellant failing to amend, his petition was dismissed. Section 1268, St. Ky. is as follows: "If any person or persons shall be guilty of a breach of the peace *** the person so offending and each of them shall be fined not less than one cent nor more than one hundred dollars or imprisonment not less than five nor more than fifty days or both so fined and imprisoned." By the terms of the ordinance the fine for a breach of the peace cannot be less than $10, nor more than $100, and imprisonment is not part of the penalty, while, under the statute, for a breach of the peace, the minimum file is 1 cent, and the maximum fine $100, and, in addition to which, imprisonment for not less than 5, nor more than 50, days may be inflicted. It will therefore be observed that the penalty for a breach of the peace under the ordinance is much less than the one denounced in the statute. Section 168 of the constitution is as follows: "No municipal ordinance shall fix a penalty for a violation thereof at less than that imposed by statute for the same offense. A conviction or acquittal under either shall constitute a bar to another prosecution for the same offense." The penalty for a breach of the peace under the ordinance being less than the one imposed by statute, the ordinance is in violation of the constitution, and void. Under subsections 22, 23, § 3290, St. Ky. the common council of cities of the third class have the power, within the limits of the constitution of this state and the act relating to cities of that class, to pass ordinances imposing fines and imprisonment for the violation of ordinances and by-laws, breaches of the peace, etc. The ordinance imposing a fine for a breach of the peace being void, the statute remained as if no action whatever had been taken by the common council. There was a statute in force under which both fine and imprisonment could be imposed for a breach of the peace in the city of Owensboro. The judge of the police court of that city had jurisdiction to try persons charged with that offense. A warrant was issued, charging the appellant with the offense of a breach of the peace, under which he was arrested, tried, and convicted. It is alleged in the petition he was required to answer "the charge of violating city ordinance 3, breach of the peace in said city." We understand this to mean that appellant was charged with the offense of a breach of the peace. Although he was charged with violating the ordinance, yet the gravamen was a breach of the peace. The judge and the marshal may have proceeded to, and did, prosecute the appellant under charge of a breach of the peace, believing the ordinance in question to be in force, and imposed the fine, yet it was not in force, but a statute was, which authorized the imposition of the fine for a breach of the peace. The jurisdiction of the court existed, with ample power to try and convict the accused on the charge of a breach of the peace, if...