City of Louisville v. Wehmhoff

116 Ky. 812 | Ky. Ct. App. | 1903

Lead Opinion

Opinon of the court by

JUDGE OREAR

Reversing.

These actions originated in the police court of Louisville on four summonses or warrants taken out in the name of the appellant, city of Louisville, against the appellees, respectively, for the violation of an ordinance entitled “An ordinance to prevent the operation of poolroom's in the city of Louisville.” The appellees in that court demurred to the warrants against them, respectively. The demurrers being each sustained, the city prosecuted an appeal to the Jefferson Circuit Court, Criminal Division. That court, on motion of the appellees, dismissed the appeals on the ground that the statute attempting to confer jurisdiction on it was unconstitutional. From the judgments of dismissal, appeals were prosecuted to this court. Here the appeals were dismissed 'because it appeared that the cases in whicl^ the judgments appealed from had been rendered were styled in the circuit court, “Commonwealth of Kentucky, Appellant, v. Henry Wehmhoff, &c., Appellees.” It was said that, for aught the record showed, the prosecutions begun in the police court, styled, “City of Louisville, Pláintiff,” weré yet pending on the appeals in the circuit court. See City of Louisville v. Wehmhoff, &c., 24 R., 438, 68 S. W., 650. In the course of the majority opinion on that appeal, it was said: “If a clerical misprision in regard to the prosecutions of the appellant against appellees has occurred in the city court, the appellant has a right to have such misprisions corrected, upon proper proceedings, and the dismissal of this appeal in no wise affects that right. There is nothing in this judgment or the record, as now before us for consideration, which would preclude the appellant from obtaining a trial of the appeals which it took from the police court to the circuit court; and we expressly hold that this judgment of dismissal is no bar to the right of appellant to have a trial of the appeals prosecuted by it as aforesaid, or from obtaining a correction of the records of the Jefferson circuit court, if it is otherwise entitled to such correction.” Upon the filing of the mandate in the circuit court, appellant city took appropriate steps to correct the clerical misprision indicated, and it was corrected by a judgment of xbat court as follows (after reciting the fact of the misprision and its nature): “It is now fux’ther adjudged by the court that said errors and misprisions of the clerk be, and the same are hereby, corrected by the entry of the foregoing ox’ders and judgments in the above-styled appeals in the name of the city of Louisville as appellant, instead of the Commonwealth as appellant, as of the dates aforesaid, including the final judgment therein on November 25, 1901, munc pro tunc.” Among the orders referred to in the foregoing quotation was this one (correctly styled): “This day the court, being advised, sustained the motion to dismiss the four above-styled appeals. Therefore ordered by the court that the four above-styled appeals be, and the same are, dismissed, to which the plaintiff objects and excepts, and prays an appeal to the Court of Appeals of Kentucky, which is granted.” Thereupon this appeal was perfected by filing in the clerk’s office of this court the transcript of the record.

The first question made by appellees is that there is no appeal pending, because they say that the appeal being prosecuted is the one heretofore actually dismissed, and that none other has ever been granted either by the clerk of this court, or by the trial court. We regard the judgment as entered in October, 1902, on the return of this case from this court, as the only judgment in this case in that court. Until it was entered as corrected, there could be no appeal from it by the appellant, city of Louisville. That is the precise point decided on the former appeal. The appeal therein granted could not be exhausted till it was taken, or until it was barred by limitation. It could not be legally prosecuted before a final judgment was rendered in the proceedings. Such judgment, under the rulings of the former opinion, was not entered in the old record, and hence was not entered till the correction of the clerk’s misprision. The motion to dismiss! the appeals must be overruled.

The very careful preparation of the case presents a number of other questions, the importance of which is earnestly pressed in the argument. We have given them all close consideration, and will dispose of them in their proper order.

2. It is claimed by appellees that the Jefferson Circuit Gourt had not the jurisdiction of the appeals from the police court. If this be so, the decision of that question terminates our authority to pass upon the merits, and other questions in these cases. The city of Louisville, in Jefferson county, is a city of the first class, and the only city of that class, or that has ever been in that class, in this State, under the classification required by the present Constitution. In the act providing for the organization and government of cities of the first class, among its other governmental agencies, it was provided with a police court and. a general council. The power of the council to pass ordinances, and the jurisdiction of the courts to construe and enforce them, were necessarily provided for. . In allowing appeals from the judgments of the police court of cities of the first class, as well as in providing a method for testing the validity of the ordinances passed by the general council, it was enacted (section 2922, Ky. St., 1899): "Appeals.shall be from the decisions of said court to the circuit court in all cases where the amount of the fine imposed is as much as twenty dollars. In cases where a fine of twenty dollars or less is imposed under an ordinance, the legality of said ordinance may be tested by the city by an appeal to the Jefferson Circuit Court or by the defendant by a writ of prohibition to the Jefferson Circuit Court, and after a decision has been rendered in the circuit court, as provided for in this section, either the city or the accused may appeal to the court of appeals as other cases in the circuit court are appealed.” Appellees’ contention is that this section of the statutes violates section 59 of the Constitution, which limits the power of the Legislature in passing local acts, and forbids those regulating the jurisdiction of courts. The importance of this question is emphasized when it is reflected that there is no other provision of law than section 2922 for the city’s prosecuting! appeals from the judgments of the police court of Louisville, or for testing the validity of the ordinances of that city, as well as that almost the same provision alone is made for appeals and testing the validity of the ordinances of the cities of the fourth class. Section 3519, Ky. St., 1899. The appellate jurisdiction of the circuit courts of this Commonwealth, as fixed by section 978, Ky. St., 1899, is made to include certain named appeals, “and in all other eases allowed by law.” Prior to the passage of the act governing cities of the first class, the city of Louisville was governed under a charter granted by the Legislature before the present Constitution. In that charter there was substantially the same provision for appeals from the police court, and especially for testing the validity of ordinances passed by the general council, as is contained in section 2922. It is found in Burnett’s City Code, 1884, sec. 27, p. 189. Although the Constitution does not require the jurisdiction of the circuit courts to be uniform throughout the Commonwealth (section 126), and although by statute they are not, as, for example, the Franklin circuit court is made the fiscal court of the Commonwealth, with jurisdiction concurrent or exclusive in such matters, as well as in certain other penal matters, we are of opinion that this statute 'does not affect that question. The jurisdiction of the circuit courts is already (section 978, Ky. St., 1899) made to include “all cases allowed by law,” and, by general laws applicable to all the cities of a particular class, provision is made for testing the validity of ordinances, and for appeals from the police courts. The statutes affecting the jurisdiction of the circuit court need not all be embraced by one act. The thing required is that they shall be general laws only. It would hardly be claimed that an act creating an offense, fixing a penalty, and naming the court which should have jurisdiction of the prosecution, is violative of section 59 of the Constitution, as being a local act regulating the jurisdiction of the courts. The Constitution allows the establishment of police courts in the cities and towns of this Commonwealth (section 143), with jurisdiction in cases of violation of municipal ordinances and by-laws occurring within the corporate limits of the town, and criminal jurisdiction within the limits of the town as justices of the peace have. In providing these courts, -it is competent for the Legislature to provide for appeals from their judgments, and to provide in what instances and to what courts the appeals will lie. It must be manifest that the final jurisdictions of these minor courts might well be differentiated for the same reasons that the cities are classified differently, so that, in providing a government for a city of any class, it is competent to provide for it a police court from whose judgments appeals in given instances will lie to the circuit court of the county. Nor is it at all necessary that all police courts in the State should have the same regulation in this respect. This section allowing appeals or prohibition to test the validity of municipal ordinances is really more of an incident in providing a city government, although it incidentally affects the jurisdiction of the courts in the counties where such cities may be located. We regard the use of the words “Jefferson Circuit Court,” in the section, as an inadvertence, growing out of drafting the bill from the old city charter. The same immaterial lapse is noticed in other places in the act. It should be ignored, as surplusage, rather than be suffered to defeat the clear purpose of the Legislature, as well as to invalidate an important right of the city and of its inhabitants. We construe this section to mean that either party — the city or. the defendant — may prosecute an appeal to the circuit court' of the county, where the penalty fixed by the ordinance is as much as $20. Upon such an appeal the case would be tried upon its merits de novo. But if the penalty be less than $20, either party, for the purpose of testing the validity of the ordinance, may go to the circuit court of the county — the defendant by prohibition, and the city by appeal. If, in a reclassification of the cities of the Commonwealth, another or others are added to the first class, this section would apply to them; the words “Jefferson Circuit Court” being read “circuit court of the county.” We are of the opinion that the Jefferson Circuit Court, Criminal Division, had jurisdiction of these appeals.

3. The next proposition is: It is argued that the prosecution was improperly in the name of the city of Louisville. Appellees contend that, under the Constitution, the prosecutions must have been in the name of the Commonwealth of Kentucky. Section 123 of the Constitution is, in part: “ . . All prosecutions shall be carried on in the name and by the authority of the 'Commonwealth of Kentucky,’ and conclude against the peace and dignity of the same.” This identical language was used in all the previous Constitutions of this State. The word “prosecutions,” as used in this section and in other sections, has been construed to embrace only such transgressions as were at common law indictable offenses, or were punishable by imprisonment or other infamous mode. In Commonwealth v. Avery, 14 Bush, 625, 29 Am. Rep., 429, it was held that a statute imposing a fine for betting on an election was neither an indictable offense at the common law, nor was it visited with any infamous punishment by statute. It was then held that a penal action would lie to recover the fine, without an indictment having been found, and that it was not a “criminal prosecution,” as contemplated by the use of the term in the Constitution. In Lowry v. Commonwealth (18 R., 481), 36 S. W., 1117, the appellant was arrested on a warrant, without indictment, and tried before a minor judicial officer, and convicted of a violation of the local option law. Answering his objection that he was being deprived of a constitutional right, in that he was being tried for an indictable offense upon information merely, the court said: “Misdemeanors created by statute, for which no infamous punishment is provided, may be tried in such manner as the Legislature shall provide.” The Legislature, in granting the charter of the City of Lexington in 1842, authorized it to prosecute and recover in the name of the city, for all infractions of its ordinances. The city council passed an ordinance providing a punishment for breaches of the peace. In Williamson v. Commonwealth, 4 B. Mon., 146, the appellant had been convicted under the ordinance in a proceeding upon a warrant issued in the name of the city of Lexington. He contended that the act of the Legislature in attempting to confer authority upon the city to prosecute for offenses in the name of the city, as well as allowing the proceeding upon information without indictment, was violative of the Constitution. This court held that proceedings for offenses punishable by fine only are of a quasi civil nature, and did not violate either oí the provisions of the Constitution. This case has since been approved, and its doctrines applied, in allowing penal actions, without indictment, to recover for offenses where the only penalty was a fine. Commonwealth v. L. & N. R. Co. (18 R., 610), 37 S. W., 589; Harp v. Commonwealth (22 R., 1792), 61 S. W., 467; Commonwealth v. L. & N. R. Co., 80 Ky., 291, 3 R., 788, 44 Am. Rep., 475; Commonwealth v. Sherman, 85 Ky., 686, 9 R., 218, 4 S. W., 790; L. & N. R. Co. v. Commonwealth (23 R., 1900), 66 S. W., 505. These and similar constitutional guaranties of the citizen, like that of trial by jury, have been variously and frequently considered by the courts of last resort of many of the States. The weight of authority seems' to be that such summary proceedings by municipal courts for the violations o,f municipal by-lay/s are not repugnant to these constitutional provisions. Dillon on Munic. Corp., secs. 433, 368; Smith, Modern Law of Munic. Corp., sec. 1353 et seq., and cases there collected. The only question left under this head is, has the Legislature authorized the proceeding to be in the name of the city? Section 2917, Kentucky Statutes, 1899, 'being a part of the law governing cities of the first class, reads: “All fines and recoveries realized in said court, whether the prosecution be in the name of the city or commonwealth, shall be paid to the city treasurer as a contribution toward the expenses of said court:” By section 2922, already quoted, appeals are allowed to either the city or the accused; clearly indicating that the city was to be one of the parties to the proceeding. Strictly, violations of municipal ordinances are not violations of laws of the Commonwealth. The municipality alone is concerned, and it properly ought to be, and has always been regarded in this State, by universal practice, so far as our attention has been directed, as being the prosecutor. We conclude, therefore, that the correct practice is to style the prosecutions in the name of the city.

4. Probably the most important question is as to the power of the general council to pass ordinances to punish those acts which are offenses at the common law. Of course, the municipality has only such power in this respect as has been granted to it by the Legislature. The only grant to cities of the first class to pass such ordinances is contained in the following sections of the Kentucky Statutes of 1899:

“Sec. 2742. That the inhabitants of cities of the first class are hereby continued corporate by the name and style which they now bear, with power to govern themselves by such ordinances and resolutions for municipal purposes as they may deem proper, not to conflict with this act, nor the Constitution and laws of this State, nor of the United States.”

“Sec. 2782. Ordinance Imposing Fine for Misdemeanor. The general council shall have power to pass ordinances imposing fines, not exceeding one hundred dollars, for any designated misdemeanor not provided for by the general laws of the Commonwealth; but in case where the General Statutes of the Commonwealth impose a fine not exceeding one hundred dollars such fine may be increased by ordinance.

“Sec. 2783. Power to Pass Ordinances not in Conflict with the Constitution and Statutes. The general council shall have power to pass, for the government of the city, any ordinance not in conflict with the Constitution of the United States, the Constitution of Kentucky, and the statutes thereof.”

Appellee insists that the proper construction of these sections is that the general council is restricted by the particular language of section 2782 to passing ordinances making unlawful within the city only those things which at common law were not offenses, or which have been made such by statute; that the operation of a poolroom (that is, a place where betting on horse races was habitually indulged) was at common law a nuisance, and, being unprovided for by any statute of this State, it was beyond the power of the general council to legislate with reference thereto. We think there has been a total misconception of the purpose and scope of this section of the statute. In the first place, the cardinal test must be the legislative intention in enacting the sections. We must presume that that body intended to vest in the local legislative board of the largest city in the State at least as much power with respect to passing by-laws for the police regulation of its inhabitants, and for the conservation of the morals and welfare of that population, as was given to the lesser towns and cities. In all the others, specific authority is granted to them to pass by-laws to suppress and punish nuisances. In defining the powers of the legislative bodies of all the other municipalities, they are minutely given, with reference to enumerated specific subjects. In the grant to cities of the first class there is an entire absence of such careful restriction. This alone, in view of the ample general terms employed, would seem to indicate that the powers granted the first-class cities over such subjects were broader and more comprehensive than those granted the others. But however that may.be, we think that section 2782 was not enacted to restrict the general council’s powers in defining what should be offenses within the city, but was intended solely to define its authority in prescribing the limits of punishment for such matters as were made offenses by ordinance. Section 168 of the recent Constitution had for the first time in tills State placed a constitutional restriction upon the power of all municipalities as to the extent of punishment to be inflicted by the city where the same act was an offense against the Commonwealth, punishment for which was fixed by statute. That section 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 purpose of this statute (section 2782; -was to apply section 168 of the Constitution. It allowed the city to punish the same act that was by statute a misdemeanor by the penal law's of the State. But it required the council to fix the same penalty as the statute did, where the penalty was $100 fine. Where the statutory penalty was less than $100 fine, the municipality might impose a higher penalty up to $100, for an infraction of its ordinance. Where no penalty was fixed by statute, the municipality was at liberty to fix such penalty as it deemed proper, not exceeding $100. The only other limitation on this power urns that found in the succeeding section (Ky. St., 1899, sec. 2783), which was that the ordinance should not be in conflict with the Constitution or statutes of the United States or of this State. That such is the correct meaning of these sections, we think, is made plain by opinions of this court in City of Owensboro v. Simms, 99 Ky., 49, 17 R., 1393, 31 S. W., 1085, and Respass v. Commonwealth, 107 Ky., 139, 21 R., 789, 53 S. W., 21. In the Respass case the city of Covington had by ordinance fixed' a penalty for operating poolrooms within the city. A conviction in the police court was interposed as a bar to an indictment for the same offense in the circuit court. It was denied. This court held that section 168 of the Constitution limited the power of the municipalities as to fixing penalties to those cases only where a penalty for the same act was fixed by statute, and that as operating poolrooms was not a statutory offense in this State, but one punishable at common law only, the section of the Constitution did not apply, and the punishment by the ordinance was held not to be a bar to a prosecution for the same offense by the State. The exercise of police power by the State, or as delegated by it to its municipalities, is an essential and inalienable attribute of sovereignty and government. It is at the very bottom of all social government, and, while jealously scrutinized in its application, lest the rights of the citizen be arbitrarily encroached upon under its guise, yet its existence never has been and never can be denied. The rights of persons in conducting their business or using their property are subordinate to this power. The regulation of commerce between the States by the Federal government likewise yields to its legitimate application. Cooley, Const. Law7, 709; Patterson v. Commonwealth, 11 Bush, 312, 21 Am. Rep., 220, affirmed on appeal to the Supreme Court, 97 U. S., 501, 24 L. Ed., 1115; Moore v. Illinois, 14 How., 13, 14 L. Ed., 306; Chicago, &c., R. Co. v. Fuller, 17 Wall., 560, 21 L. Ed., 710; Passenger Cases, 7 How., 2S3, 12 L. Ed., 702; Morgan Steamship Co. v. Louisiana Board of Health, 118 U. S., 455, 6 Sup. Ct., 1114, 30 L. Ed., 237. Of its general nature, a comprehensive definition is given by Jeremy Bentham, in his General Yiew of Public Offenses (Edinborough Ed. of Works), pt. 9, p. 157, in part, thus: “Police is in general a system of precaution, either for the prevention of crimes or of calamities.” “Law's and regulations necessary for the protection of the health, morals, and safety of society are strictly within the legitimate exjercise of the police powers.” Smith, Munic. Corp., 1319. “Municipal corporations have exercised the police power eo nomine for time out of mind, by making regulations to preserve order, etc., . . . and this power of local legislation may be conferred upon tbe smallest village that tbe Legislature sees fit to incorporate, as well as upon the largest city in the State.” Id., 1320, 1321. The strife generally is over the question whether the particular business or use of property prohibited by the act or ordinance is within the proper exercise of that power. We will not go further into the subject than its application to the particular matter embraced by the ordinance under examination. Tiedman on Limitations of Police Power (a very conservative treatise upon the subject) declares that (sections 99-102) when parties “pursue gambling as a business, and set up a gambling house, like all others who make a trade of vice, they may be prohibited and subjected to severe penalties.” In California, under the police power delegated generally by the Constitution to the cities and counties, it was held in Ex parte Tuttle, 91 Cal., 589, 27 Pac., 933, that the municipality of San Francisco could lawfully provide a penalty against pool-selling on horse races committed within the city, although there was no statute of the State on the subject. The same was held in Georgia in Odell v. City of Atlanta, 97 Ga., 670, 25 S. E., 173. In that case it was said: “We are not aware of any statute of this State which makes the carrying on of this so-called business penal, and it is therefore strictly within the purview of municipal legislation. Under the general welfare clause of the charter of the city of Atlanta, the mayor and council had authority to pass the' ordinance of which the plaintiff in error complains. That ordinance forbade, under a penalty, the keeping or maintenance of any office or place of business in the city in which any persons were allowed to bet on horse races or any other kind of races, whether run within the city or outside of its' limits. We think it was perfectly lawful and proper both to adopt and enforce an ordinance of this kind.” Indeed, it would seem that citation of authority that the State or a municipality may lawfully prohibit gambling as a proper exercise of police power, is unnecessary in this day and time.

5. This brings us to the consideration of appellees’ next contention, which is, does the title of the ordinance sufficiently indicate the subjects treated therein, and does the ordinance embrace more than one subject? Section 2777, Kentucky Statutes, 1S99, on this subject, reads: “No ordinance shall embrace more than one subject, and that shall be expressed in its title.”

The ordinance in question is as follows:

“An Ordinance to Prevent the Operation of Poolroom's in the City of Louisville.

“Be it ordained by the general council of the City of Louisville:

“Section 1. That it 'shall be unlawful for any person, firm or corporation to establish, set up, maintain, keep or operate, or conduct in the city of Louisville a poolroom, or what is commonly called ‘poolroom,’ wherein or whereat any money or other thing of value shall be or can be bet, won, or lost on the result of any horse race or races, run or to be run in or our of the city of Louisville, or wherein or whereat any money or other thing of value shall be received or paid for any ticket, lot, pool, or chance on the result of any such horse race or races run or to be run in or out of the city of Louisville; and any person, firm, or corporation that shall violate any provision of this section shall, on conviction, be fined one hundred dollars for each offense; and each day such poolroom is thus maintáined, kept, operated, or conducted shall constitute a separate offense.

“Sec. 2. That it shall be unlawful for any person to aid, 'abet, or assist any other person "or corporation, or to act as the agent or employe of any other person or corporation in establishing, setting up, maintaining, keeping, operating, or conducting any such poolroom as is defined in section 1 of this ordinance; and any person who shall violate any provision of this section shall, on conviction, be fined in any sum not less than twenty-five nor more than one hundred dollars for each offense; and each day any person shall thus aid, abet, or assist in maintaining, keeping, .operating, or conducting such a poolroom, or shall act as agent or employe of any person or corporation in maintaining, keeping, operating, or conducting such a poolroom, shall constitute a separate offense.

“Sec. 3. That it shall be unlawful for any person, firm, or corporation, either as owner or agent, to let, lease, or rent to any other person, firm, or corporation any room, house, or building to be used or occupied as a poolroom, or for any of the purposes defined in section 1 of this ordinance; or as owner or agent, to permit any room, house, or building to be so used or occupied, after receiving notice thereof; and any person, firm, or corporation that shall violate any provision of this section shall, on conviction, be fined in any sum not less than fifty dollars nor more than one hundred dollars for each offense, and each day such room, house, or building shall be so used or occupied shall constitute a separate offense.

“Sec. 4. That it shall be unlawful for any telegraph, telephone, or messenger company, or any officer, agent, messenger, or employe thereof, to furnish, deliver, or communicate to any owner, proprietor, agent, or employe of any poolroom maintained, kept, operated, or conducted in the city of Louisville for any of tlie purposes defined in section 1 of this ordinance, any messáge, communication, or information, to be used at such a poolroom as is defined in section 1 of this ordinance, concerning any horse race .or races in or out of the city of Louisville; and any 'company, person, firm, or corporation that shall violate any provision of this section shall, on conviction, be fined in any sum not less than twenty-five dollars nor more than one hundred dollars for each offense, and each message or communication so furnished, or delivered, or communicated, shall constitute a separate offense.

“Sec. 5. That it shall be unlawful for any person to buy or to have in his possession any ticket, lot, pool, or chance in or of any such poolroom as is defined in section 1 of this ordinance, on any horse race or races ran or to be run in or out of the city of Louisville; and any person who shall violate any provision of this section shall, on conviotion, be fined in any sum not less than five dollars nor more than fifty dollars for each offense.

“Sec. 6. That it shall be the duty of the board of public safety, and each member of said board, to suppress all such poolrooms as are defined in section 1 of this ordinance, and by and through the police force to faithfully execute all the provisions of this ordinance: and it shall be the duty of the chief of police and each member of the police force of the city of Louisville to detect and arrest all violators of any provision of this ordinance, and any wilful failure or refusal to do so by any officer, patrolman, or detective on the police force shall subject him to a fine of not less than fifty dollars nor more than one hundred dollars for each offense, and on conviction for such offense in the police court of the city of Louisville, it shall be the duty of said board, after notice to and trial of such convicted member of the police department, to dismiss Mm from further service therein, and to not thereafter appoint Mm to any position in said department, or place him on the pay rolls thereof.

“Sec. 7. That any member of the board of public safety who shall wilfully fail or refuse to execute any provisions of this ordinance, or to join with any other member of said board in executing the same, or who shall wilfully fail o’r refuse to dismiss or to join with any other member of said board in dismissing from further service in the police department any member thereof who shall have been convicted in the police court of the city of' Louisville of violating any provision of this ordinance, or any member of said board who shall appoint or join any other member of said board ini appointing any such convicted member of the police department to any position therein, or who shall place, or join with any other member of said board in placing, any such convicted member of the police department on the pay rolls thereof, shall, on conviction, be fined one hundred dollars for each offense

“Sec. S. That all other ordinances or parts of ordinances in conflict or inconsistent with this ordinance are hereby repealed.

“Sec. 9. That this ordinance shall take effect and be in force from and after its passage.

“Approved February 11, 1901.”

Appellees’ criticism of this act is that it embraces a number of different offenses. We fail to see that that puts the ordinance in conflict with the section of the statute. The statute is that the ordinance shall embrace 'but one subject. In order to effectuate the object of this ordinance, which is covered by the one subject, viz., “to prevent the operation of poolrooms in Louisville,” it may be necessary to deal with more than one feature of the subject. This is frequently so. In construing a similar constitutional provision (section 51), this court has had occasion to pass upon the subject of the sufficiency of the title. It has always •been held that if the various provisions of the act ail relate to, and are germane to, the subject expressed in the title, the requirement is satisfied. Collins v. Henderson, 11 Bush, 71; Commonwealth v. Bailey, 81 Ky., 395, 3 R., 110; Burnside v. Lincoln Co., 86 Ky., 423, 9 R., 635, 6 S. W., 276. The latest utterance of this court on that subject is the case of Weber v. Commonwealth, 24 R., 1726, 72 S. W., 30. The title of the act involved in that case was, in substance, the better preservation of the peace, and' the suppression of mobs and other unlawful confederations. The first 'section of the act (Acts 1897, p. 29, c. 20) provided against persons banding themselves together for the purpose of injuring or disturbing another; the second, against those banding themselves together for the purpose of injuring property; the sixth, against those who send out intimidating or threatening letters. It was held that all the parts of the act related to the one subject named. A very similar question to the one under discussion came before the Supreme Court of Appeals of Virginia in the case of fix parte Lacy, 24 S. E., 930, 31 L. R. A., 825, 57 Am. St. Rep., 795. The same point was made as to the title of the act of the Virginia Legislature, which was as follows: “An act to prevent pool selling, and so forth, upon the results of any trials of speed of any animals or beasts taking place without the limits of the Commonwealth.” Acts 1895-96, p. 576, c. 539. The Virginia Constitution (art. 5, sec. 15) declared “that no law shall embrace more than one subject, which shall be expressed in its title.” The court, on this point, observed: “We do not consider the act as obnoxious to that part of the clause or the Constitution just quoted, which says that ‘no law shall embrace more than one subject.’ The object of this law is the suppression of gambling, or that form of gambling where the bet or wager is made upon the speed or endurance or skill of animals or beasts, for, as was said in Ingles v. Straus, 91 Va., 209, 21 S. E., 490, ‘if the subjects embraced by the act, but not specified in the title, have congruity or natural connection with the subject stated in the title or are cognate or germane thereto, the requirement of the Constitution is satisfied. . . The Constitution, moreover, is to be construed so as to uphold the law, if practicable. All that is required by the constitutional provision is that the subjects embraced in the statute, but not specified in the title, shall be congruous, and have natural connection with, or be germane to, the subject expressed in the title. Commonwealth v. Brown, 91 Va., 762, 21 S. E., 357, 28 L. R. A., 110.” Every provision of this ordinance looks to the prevention of the operation of poolrooms in the city of Louisville. The great purpose of the act is to suppress that form of gambling known as “pool-selling.” To do this the general council has struck at the operation of the poolrooms, as the most certain remedy. To prevent their operation, five classes of persons 'who are known to contribute thereto are brought within the terms of the ordinance, viz.: (1) The operator of the poolroom; (2) his servants or employes engaged in operating it; (3) the owner or controlling agent of the building or lot, who'knowingly lets it or knowingly suffers it to be used for that purpose; (4) the telegraph, telephone, or messenger company, who, as carrier of messages, knowingly, and for the purpose of enabling the selling of pools, transmits or delivers messages to such operator, to be used at the poolroom, and (5) the person who buys or has the possession of the ticket of any pool, issued or to be redeemed by any poolroom operator in' the city of Louisville. To reach any one of these classes, tends to "prevent the operation of poolrooms in the city of Louisville.” To reach and restrain them all, effectually accomplishes the object of the ordinance. The title of the ordinance fairly and comprehensively embraces every phase of the subject treated of in its several sections, and is not repugnant to the statutes.

6. For appellee Smith, manager of the Western Union Telegraph Company, it is insisted that this ordinance is invalid because it is — so it is argued — an arbitrary and unauthorized interference with a legitimate business, to-wit, the contract and duty of a common carrier of messages to deliver the messages according to its contract. Counsel insist that an enforcement of section 4 of the ordinance is invalid, because: "(1) The prohibition is not limited to messages to be used in the business or operation of the poolroom. They may be entirely foreign to such business and operation, and still be a violation of the ordinance. (2) The message may be addressed to and delivered at a place separate from, and having no connection with, the poolroom. (3) The defendant may be guilty, under the ordinance, although he may not know the contents of the message. He may not know that it is to foe used at a poolroom. He may not even know that the addressee is the owner or proprietor or agent or employe of a poolroom.” No such construction of the ordinance is contended for by the city, nor do we believe that it is fairly susceptible of it. The messages which the telegraph and telephone companies and their employes are prohibited from delivering are those messages only that are communications “to any owner, proprietor, agent, or employe of any poolroom maintained, kept, operated, or conducted in the city of Louisville for any of the purposes defined in section 1 of this ordinance, any message, communication, or information to be used at such a poolroom as is defined in section 1 of this, ordinance, concerning any horse race or races in or out of the city of Louisville.” The message must contain matter which on its face shows it is to be used in the operation of a poolroom in Louisville by furnishing information concerning horse races that would enable the operator of the poolroom to make or sell pools or chances based upon such information, or the knowledge of such purpose must be otherwise established; and it must be shown that the message was delivered to such poolroom operator, or his agent, with knowledge of the purpose that it is to be used in making bets or selling pools on the information contained in the message. The telegraph company or its agents handling the message must be shown to have guilty knowledge that it is to be so used. Messages not concerning horse-racing and to further the pool-selling business are not affected by the ordinance.

It is not argued that the ordinance is invalid, as to this appellee, on any other ground than above named. The case of Commonwealth v. Western Union Telegraph Company (112 Ky., 355, 23 R., 1633), 67 S. W., 59, 57 L. R. A., 614, is relied on by appellee as sustaining this position. The question involved and decided in that case was whether a telegraph company that delivers 'such messages to an operator of a poolroom was guilty of the common-law offense of maintaining a nuisance. The court held: (1) “At common law a gaming house is a nuisance. It is detrimental •to the public, because it promotes cheating and other corrupt practices. It encourages idleness and excites the desire to obtain money in an improper way. Persons who are in the occupation and control of such houses are guilty of maintaining a common nuisance.” And (2) that a telegraph company who merely furnished messages to the proprietors of the gambling house were not “in control” or “occupation” of such house; that it was never, at common law, a nuisance to furnish such messages. Beyond that the court was not called upon to, and did not, decide. Certain expressions used in the opinion by way of illustration or argument seem to have misled counsel. For example, the court cited section 1316, Kentucky Statutes, 1S99, which' punishes telegraph companies by fine for corruptly or wilfully, or for any other improper motive, failing to deliver a message. The whole section is as follows: “If any agent, officer or manager of a telegraph or telephone line in this State, or other person, shall knowingly transmit, on or through the same, any false communication or intelligence with intention to injure any one, or to speculate on any article of merchandise, commerce or trade, or with intent that another may do so; or if any agent, officer, or manager of a telegraph or telephone line from corrupt or improper motives, or wilful negligence, shall withhold the transmission or delivery of messages or intelligence, for which the customary charges have been paid or tendered, he shall be fined not less than ten nor more than five hundred dollars.” This section aimed at three things: (1) To punish a telegraph operator, or any one else, who knowingly éent false messages with intention to- injure another; (2) to punish the operator or other person who transmits such telegraphic or telephone message for the purposes of speculation in articles of merchandise and! commerce, and (3) to punish the operator who corruptly or by wilful negligence failed to deliver a message. Judge Paynter, in the opinion in Commonwealth v. Western Union Telegraph Company, supra, commenting upon the last-mentioned feature of the statute, observed: “If a person desires to transmit a message over a telegraph line, if it is couched in decent language, it is the duty of the company to receive and transmit it upon the tender or payment of the customary charges for such services.” Counsel for appellee construe this language to mean that a telegraph company is bound to, and therefore, of course, may voluntarily, accept and transmit any message couched in decent language, upon payment of customary charges. The same section expressly prohibits the transmission of two classes of messages, without regard to the absence or presence of terms that might shock the modesty, viz., false messages intended to injure another, and those for speculation upon the state of the markets. Of course, the opinion did not mean to hold that the last annulled the first two provisions of the statute. Nor did the court intend to subscribe to the doctrine that any one, whether a common carrier or not, could be compelled to do an unlawful act, or to become a party to an immoral one. The court did not intend to overrule the case of Smith v. Western Union Tel. Co., 84 Ky., 665, 8 R., 672, 2 S. W., 483, nor to depart from the principles therein announced. It was held in that case that a telegraph company would not be compelled by injunction to furnish service to one who purposed using it in gambling transactions with his customers. In the case of Com. v. W. U. T. Co., supra, the court merely announced that if the telegraph company did furnish such service, it was not an indictable offense at the common law. Since the decision in the Smith case, s-uprci, section 1346, Kentucky Statutes, has made it an indictable offense for a telegraph company to furnish the character of information therein mentioned, viz., bucketshop quotations. It would be neither courteous nor fair to the legislative branch of the State government to impute to it, in construing one of its statutes, a purpose to encourage crime and fosten immorality; to say that it had1 in mind the compulsion of acts by its citizens which had but the sole object of perpetrating other acts which in every enlightened jurisdiction are deemed vicious and degrading. To hold that the statute being considered compelled the transmission of messages by the telegraph company, known to be designed for purposes of gambling within this Commonwealth, would be to convict the Legislature of favoring the vice of gambling. On the contrary, the true rule of interpretation is that the purpose of the Legislature in passing such act will be presumed to be in harmony with the general public po’icy, evidenced by innumerable statutes against gambling in almost every conceivable form. A telegraph company, at common law, might become liable for the transmission of a libel, where the'matter conveyed information of its nature. Whitfield v. S. E. R. Co., 1 El. B. & El., 115; Peterson v. W. U. T. Co., 72 Minn., 41, 74 N. W., 1022, 46 L. R. A., 661, 71 Am. St. Rep., 461; Monson v. Lathrop, 96 Wis., 386, 71 N. W., 596, 65 Am. St. Rep., 54; Archambault v. Great Northwestern Tel. Co., 4 Montreal, Q. B., 122. So a common carrier of messages is bound to transmit all messages upon payment of customary charges, when couched in decent terms, and which it is not prohibited by law from carrying, or which, if delivered, would not subject it to indictment or to an action for damages, or which are not intended for treasonable, unlawful, or immoral purposes, known to the carrier. The words, “if couched in decent language,” used in Commonwealth v. W. U. T. Co., supra, are not in the statute, yet they are properly read into it, as should be the terms above used, for the policy of the law will not discriminate merely in the exclusion of words which might offend the sensibilities, yet allow matter obviously vicious and detrimental to society. State of Alabama v. Stripling (Ala.), 21 South., 409, 36 L. R. A., 81; Gray on Telegraphs, sec. 15; Melchert v. American Union Tel. Co. (C. C.), 11 Fed., 193; Bryant v. W. U. Tel. Co. (C. C.), 17 Fed., 825; Cothran v. W. U. Tel. Co., 83 Ga., 25, 9 S. E., 836. As said in the Smith case, supra, “Of course, a telegraph company, in assuming to refuse to send a message because it is illegal or immoral, acts upon its peril.” Or as was observed in Gray v. Western Union Tel. Co., 87 Ga., 350, 13 S. E., 562, 14 L. R. A., 95, 27 Am. St. Rep., 259: “When a dispatch is ambiguous, the law would give the benefit of the ambiguity to the company dealing with it, either civilly or criminally, for transmitting the dispatch; and hence it would be the duty of the company, in deciding whether to transmit or not, to give the benefit of the doubt to the sender.” But however the matter may be regarded in other respects, it is left, in this State, so far as the State policy is concerned, to the discretion of the telegraph company whether it will receive and transmit messages con. cerning gambling transactions, other than gambling in “futures.” It was competent, then, for the general council of Louisville, in the exercise of that police power delegated to it by the State, to punish the willful transmission of messages furnished to known gambling establishments for the purpose of enabling them and their customers to make bets or lay wagers on (horse races. The telegraph company, whether or not it has a conscience, has a duty. It it claimed that this duty is only to serve the public. Not so. Its first duty is to obey the laws, just like other people. The public can not demand a service which in and of itself involves a violation of the law. The ordinance is a clear exercise of police power, and not an improper one.

7. The final contention of appellees is that the warrants in question are too indefinite, and fail to state any charge against any of appellees. By the warrants the defendants were summoned to show cause why they should not be fined “for violating ordinance to prevent the operation of poolrooms in the city of Louisville.” It is complained that no acts are charged. There may be as many as five different offenses under this ordinance. The warrants in these cases do not describe any one of the offenses. In the recent case of Commonwealth v. Leak (decided Oct. 23, 1903), 116 Ky., 540, 25 R., 761, 76 S. W., 368, it was held: “The same technical strictness is not required in a proceeding by warrant as by indictment, and ordinarily a warrant in the form prescribed by the Code sufficiently describes the offense; but, if made to appear to the satisfaction of the court that a defendant can not intelligently make defense, it should be made more specific.” In Commonwealth v. Robert Van Meter (M. S. opinion by Judge Cofer, decided in 1876), this court held that a warrant issued in a misdemeanor case, not requiring an indictment, could be amended, when it was not sufficiently specific, and that the amendment could be made in thei circuit court after the appeal there, inasmuch as it would not have changed the prosecution. In these cases the warrants can be amended on their return to the circuit court, if demanded by appellees, so as to apprise them as to which sections of the ordinance they are charged with having violated. But it was error to have dismissed the warrants.

The judgments are reversed, and causes remanded to the circuit court for trial under proceedings not inconsistent herewith.

.Whole court sitting.

---

Rehearing

Judge O’Rear’s

response to a petition for a rehearing.

Aside from repetitions of arguments made on the original hearing of the case, and which we deem to have been disposed of by the opinion heretofore delivered in these cases, appellees have presented certain criticisms of the opinion, and additional reasons against the reversal, which ought to be noticed.

It is complained that the ordinance being considered is void because it violates section 168 of the Constitution, in this: That it provides less penalties than are fixed by statute for the same offense. It was argued before that the offense created by the ordinance was not an offense at all, either at the common law or by statute. The apparent inconsistency of the arguments will not estop counsel from relying on the true one, if either is sound. It is claimed that pool-selling is a game such as is embraced by section 1960, Kentucky Statutes, 1903, for which a penalty of $500 fine and confinement in the penitentiary, and disqualification from suffrage and office holding, is fixed. That section applies alone to the setting up and operation of a faro bank, keno bank, “or other machine and contrivance used in betting whereby money or other thing may be won or lost,” and to whoever shall for commission or compensation set up, operate, or conduct a game of cards, oontz, or craps, whereby money or other thing may be won or lost, and to aiders and assisters. This argument is based upon the claim that the ordinance is broad enough in terms to include what is known as “French pools,” and that as it was decided by this court in Commonwealth v. Simonds, 79 Ky., 618, 3 R., 380, that the selling of French pools or Paris mutuals on horse'races is a felony, under section I960, Kentucky Statutes, 1903, therefore the ordinance fixes a less penalty for selling French pools than the statute does. French pool or Paris mutual is a “machine or contrivance used in betting,” as is shown by its description in Commonwealth v. Simonds, supra. Furthermore, section 1961, Kentucky Statutes, 1903, indicates that it was so regarded 'by the Legislature. For in that section it is said that the change of the name of the games or contrivances “mentioned or included in the preceding section shall not prevent the conviction of any person violating the provisions thereof. . . Nor shall its ■ provisions apply to persons who sell combination or French pools on any regular race track during the races thereon.” In French pool the operator of the machine does not bet at all. He merely conducts a game, which is played by the use of a certain machine, the effect of which is that all who buy pools on a given race bet as among themselves; the wagers of all constituting a pool going to the winner or winners. The operator receives 5 per cent, of the wagers as his commission. But in selling ordinary pools on horse races the seller does not operate a “machine or contrivance used in betting.” Neither does he bet on a horse race. Such was the express decision of this court in Cheek v. Commonwealth, 79 Ky., 359, 2 R., 339. Therefore, as said by the court in that opinion, “there is no express statutory penalty against the specific act of ¡selling pools.” In that opinion the other statute refered to by counsel (what is now section 1960) was referred to, and held not to include pool selling, while French pool was held by the court in the Simonds case, supra, to be under that statute. But, even if the ordinance was 'broad enough to include French pools, it would be void only as to that class of pool selling, leaving it valid in all other particulars, including the penaties affixed to the acts of having tickets in possession, and knowingly furnishing telegraphic or telephone messages to the operators, etc., with the intention or knowledge that they are to be used to further the business of pool-selling in the city of Louisville.

Section 1978, Kentucky Statutes, 1903, fixes a penalty of $200 to $500 against “whoever shall suffer any game whatever at wdiich money or property is bet, won or lost, in any house, or on premises in his occupation.” It is claimed that the act of pool-selling, or at least the betting by the buyers of the pools, -is a game. Both these contentions were decided adversely to appellees’ present version in Cheek’s case, supra, where the court said: “Appellant could not be convicted under an indictment for the statutory offense of betting at a game or wager, first, because he did not bet or wager anything; and, second, because betting on a horse race, although punishable und'er a statute against wagering, is not ‘gaming.’ ”

The other criticism of appellees other than the Western Union Telegraph Company’s manager do not appear to us to be material, as affecting their rights under the ordinance.

The very earnest petition for rehearing filed by the Western Union Telegraph Company for its manager, Smith, relies, as new matter, upon the argument that the ordinance must be held void because it is regulation of interstate commerce, and is therefore repugnant to the Federal Constitution. We are not aware that the Congress has ever legislated upon the subject-matter covered by this ordinance. It is conceded that the business of the Western Union Telegraph Company in carrying messages between persons of different States is interstate commerce. While the Supreme Court has frequently had before it the question of the power of a State to enact legislation regulating, or having the effect to regulate commerce between the States, it has not decided the precise point here presented. Nor can any general rule be deduced from the numerous decisions of that court that can be said to be conclusive of the question now presented. It is not for a moment thought that the ordinance in question was intended as a regulation of commerce between the States, ór as a regulation of commerce at all. If it operates in that way, it is merely incidentally. The ordinance is an exercise of the State’s police power. That the States may, in the exercise of that power, in certain instances, pass laws that incidentally affect commerce among the States, has been upheld. Plumley v. Massachusetts, 155 U. S., 461, 15 Sup. Ct., 154, 89 L. Ed., 223; Austin v. Tennessee, 179 U. S., 343, 21 Sup. Ct., 132, 45 L. Ed., 224; Western Union Tel. Co. v. James, 162 U. S., 650, 16 Sup. Ct., 934, 40 L. Ed., 1105; Patterson v. Kentucky, 97 U. S., 501, 24 L. Ed., 1115; Stone v. Mississippi, 101 U. S., 814, 25 L. Ed., 1079. It would be an extraordinarily unfortunate condition of it wrere otherwise. We should imagine that a rightful exercise of this power would be found in .State laws prohibiting the importation from another State of diseased or infected cattle or persons, or impure food, and the like. Here the thing prohibited is the transmission to a poolroom operator in the city of Louisville of messages intended for use and to be used1 — in a vicious enterprise. Their use is that of gambling, and is universally held in this country to be immoral, degrading, and injurious to- society. Such use can not have any legitimate purpose. The business of furnishing such messages, known to be intended solely for such use,- makes the carrier essentially a partner in that offense. Its part of the profits of the business is its tolls for carrying the messages. The poolroom operator’s part is a toll or percentage on the volume of business. It must be profitable to both, or it would not be kept up. The carrier wants us to say that its part in this unlawful partnership to violate the moral and statute laws of a community is protected by the Federal Constitution. As was said by one of the courts, the Constitution, at most, gives the Congress exclusive jurisdiction to regulate interstate commerce, not interstate crime. The liquor cases are cited by appellees as holding a contrary doctrine to this court’s position. We do not understand that they do. Traffic in liquor is not illegal or immoral per se. On the contrary, it is generally recognized as being a legal business, and is licensed as such. Consequently the transmission of such commodities by freight from one State to another has been held to be a matter not subject to the prohibitive control of any of the States. But wagering bets on horse races can not be an article of commerce, no more than could be a lottery business. Both are per se immoral and deleterious to society, and clearly within the power of the States to prohibit. It could never have been contemplated bjT the framers of the Federal Constitution that the hands of the States were to be tied so that they could not protect themselves from such vices if one of the participants chanced to use an interstate vehicle of commerce for carrying on the business.

The petitions are overruled.

Case Details

Case Name: City of Louisville v. Wehmhoff

Court Name: Court of Appeals of Kentucky

Date Published: Nov 18, 1903

Citation: 116 Ky. 812

Court Abbreviation: Ky. Ct. App.