Berry v. Brislan

| Ky. Ct. App. | Jun 7, 1887

JUDGE BENNETT

delivered the opinion oe'the court.

The appellant was fined in the police court of the city of Frankfort one dollar and costs, on a charge of drunkenness and disorderly conduct. The costs amounted to five dollars and twenty-five cents. Capias pro fine issued against the - appellant for said fine and costs, and was placed in the hands of the appellee, Brislan, the marshal of the city of Prank-fort, who arrested the appellant, by virtue of said capias, and delivered him to the keeper of the city work-house; and the keeper of the work-house confined him at labor until he discharged the fine and costs, at the rate of fifty cents per day. The appellant, after his arrest by appellee, tendered to him one •dollar — the amount of the fine — and demanded his release. But the appellee refused to accept the one dollar and release the appellant.

After the appellant’s release from service in the work-house, he sued the appellee, on his official bond, for false imprisonment. The petition and answer agreeing as to the foregoing facts, the lower court dismissed the petition. The appellant has appealed to this- court.

Section 2 of chapter 26, General Statutes, provides, that “the laws of costs are not penal.” And it is provided by section 289 of the Criminal Code, that “if the punishment of an offense be a fine, the judgment may direct that the defendant be imprisoned until the fine be paid, specifying, however, the extent of imprisonment, which shall not exceed one day for each two dollars of the fine.”

The provision of the statute supra has reference to the costs in Commonwealth cases, and declares that such costs- are not penal. The provision of the Criminal Code supra has reference to fines imposed by the Commonwealth.

This court, in the case of the Commonwealth v. Wilson, 3 Ky. Law Reporter, 777, construed the provisions of the statute and Code supra as denying the right to imprison a defendant for costs on a capias pro Une which issued for a fine imposed by the Commonwealth. When we remember that the costs in' Commonwealth cases are not by the statute a part of the penalty or hue, but are only incidental expenses incurred in the way of officers’ and witnesses’ fees, the conclusion reached in the case supra could not be avoided. On the other hand, if the costs were by statute made a part of the penalty, no one would doubt that the defendant might be imprisoned for the nonpayment of the costs.

Sections 18 and 23 of the charter of the city of Prank-fort, and the amendment thereto, provide, in substance, that the police court of the city may require all offenders against the by-laws and ordinances of the city, who fail to pay or replevy their fines, and all fees and costs, to discharge the same by labor in the city work-house, or on the streets, at the rate of fifty cents per day. The ordinance of the city which was passed in pursuance of the provisions of the charter and the amendment thereto, provides, in substance, that in case an offender against the by-laws and ordinances of the city shall fail to immediately pay or replevy his fine and costs, a capias pro fine shall be issued against him for the fine and costs, directed to the marshal of the city, who shall deliver such offender to the keeper of the city work-house, and he shall safely keep such offender until he shall have discharged said fine and costs by labor in said work-house, or on the streets and alleys of the city, at the rate of fifty cents per day.

So, by the city charter, the costs incurred in prosecuting offenders against the penal by-laws and ordinances of the city is made a part of the punishment or penalty. And it is well-settled that an offense against the by-laws and ordinances of a city and the State are quite distinguishable, and the prosecution at the suit of each proceeds upon different grounds ; the one proceeds upon the ground of preserving the peace and good order of the city; the other proceeds upon the ground of preserving the peace, good order and dignity of the State. And the punishment for violating the peace and good order of the city may be different from that prescribed by the State for the punishment of the same acts. In other words, an act may be a penal offense under the laws of the State, and other penalties, under legislative authority, may be imposed for the commission of the same act by the city by-laws, and the enforcement of the one would not preclude the enforcement of the other. (Kemper v. Commonwealth, 85 Ky., 219" court="Ky. Ct. App." date_filed="1887-02-19" href="https://app.midpage.ai/document/kemper-v-commonwealth-7131830?utm_source=webapp" opinion_id="7131830">85 Ky., 219.)

We conclude, therefore, that the provision of the General Statutes and the provision of the Criminal Code supra, have reference to fines and penalties imposed under the laws of the State, and have no reference to fines and penalties imposed by cities, under authority of law, against those who offend against their by-laws and ordinances. And where the charters of cities, as in this case, authorize the confinement of offenders against their by-laws and ordinances until their fines and costs are discharged by labor or otherwise, such by-laws and ordinances make the costs a part of the punishment or penalty, and are not in conflict with either provision of the statute or Code supra.

And that such by-laws and ordinances are not in conflict with either the State or Federal Constitution is too plain for argument.

The judgment of the lower court is affirmed.