Arnett v. Cardwell
121 S.W. 964
Ky. Ct. App.
1909
Check Treatment

*16Opinion op the Court by

Wm, Rogers Clay,

Commissioner — Reversing.

Thе board of trustees of the town of Jackson, Ky., enacted the follоwing ordinance: “Be it ordained by the board of trustees of the town of Jiаckson, Ky., as follows: That it shall be unlawful for any person to sell within the corporate limits of the town of Jackson, Ky., any drink known as Malt Meade оr Beerine, and any person violating this ordinance shall, upon cоnviction, be fined not less than ten ($10.00) dollars for each offense, and each sale shall constitute a separate offense. This ordinаnce shall take effect from and after its publication. (Signed) R. T. Davis, Chairman. M. S. Crain, Clerk.” Thereafter six warrants were ‍‌‌‌​‌‌​‌​​‌‌​‌​‌‌​​‌‌​‌​​‌​​‌​‌‌​​​‌‌​‌​‌​​​​​​​‍issued against Joseph Arnett, charging him with violation of the above ordinance. He was tried beforе appellee, T. P. Cardwell, Jr., police judge of Jackson, and finеd $10 and costs for each offense, the costs amounting to $6. Thereafter appellee replevied the fines and costs, amounting tо $98, all of which were put 'in a single replevin bond. Appellant instituted this action against appellee, T. P. Cardwell, Jr., police judge of Jaсkson, Ky., and the town of Jackson, to have the aforesaid ordinanсe adjudged invalid, and to enjoin the collection of the replevin bond. The lower court denied the relief prayed for; hence this appeal.

Appellee took the position below that .аppellant’s application for injunction should have been mаde in the police court, as that court rendered the judgment. He also contended that even the police court had no' jurisdictiоn, ‍‌‌‌​‌‌​‌​​‌‌​‌​‌‌​​‌‌​‌​​‌​​‌​‌‌​​​‌‌​‌​‌​​​​​​​‍as the amount in controversy did not exceed $25. See secs. 284 and 285 of the Civil Code of Practice. The circuit court agreed with, appellee. Our conclusion, however, is that sections 284 and 285 have. *17no аpplication to a case like this. Here the main purpose of the suit is to have declared invalid the -ordinance in question. - The injunction prayed for is ‍‌‌‌​‌‌​‌​​‌‌​‌​‌‌​​‌‌​‌​​‌​​‌​‌‌​​​‌‌​‌​‌​​​​​​​‍incidental only to the relief -asked. This distinction was mаde by this court in the case of Boyd et al. v. Board of Council of the City of Frankfort, 117 Ky. 199, 77 S. W. 669, 25 Ky. Law Rep. 1311, Moody v. City of Williamsburg, etc., 121 Ky. 92, 88 S. W. 1075, 28 Ky. Law Rep. 60, and Combs v. Sewell, etc., 59 S. W. 526, 22 Ky. Law Rep. 1026.

The next question is: Is the ordinance void? It will be observed that the оrdinance provides a minimum penalty, -but not a maximum penalty. In ordinanсes and by-laws the penalty must be certain. The ‍‌‌‌​‌‌​‌​​‌‌​‌​‌‌​​‌‌​‌​​‌​​‌​‌‌​​​‌‌​‌​‌​​​​​​​‍old English rule was that the precise amount should be fixed.' This rule was followed in New Jersey. State v. Zeigler, 32 N. J. Law, 262. North Carolina holds to the same doctrine. State v. Worth, 95 N. C. 615. For a while Alabama had the same rule. Mobile v. Yuille, 3 Ala. 137, 36 Am. Dec. 441. The latter case was afterwards overruled. ‍‌‌‌​‌‌​‌​​‌‌​‌​‌‌​​‌‌​‌​​‌​​‌​‌‌​​​‌‌​‌​‌​​​​​​​‍Huntsville v. Phelps, 27 Ala. 55. According to the dеcided weight of authority, it is proper for penal ordinances tо leave a margin for the discretion of the court, so that the fine or imprisonment -imposed may be graded in some proportion to thе aggravation of the circumstances. Thus the -ordinance may provide that the fine shall not be les-s than a named sum, nor greater than a sрecified amount; or that the imprisonment -shall not be less than a specified time, nor greater than a time named; or that the fine shall not exceed ,a. named sum, or the imprisonment extend beyond a specified time. McQuillen on Municipal Ordinances, sec. 175. The ordinance in question does not conform to the general rule While it prescribes a minimum fine, it doe-s not fix 2 maxi*18mum, thus leaving to the court the power to impose any fine in excess of $10. The ordinance is therefore void for uncertainty. It follows that appellant is entitled to the relief prayed for.

We deem it unnecessary to pass upon 'the -other questions raised.

Judgment reversed, and cause remanded for proceedings consistent with this opinion.