Commonwealth ex rel. City of Madisonville v. Price
94 S.W. 32
Ky. Ct. App.
1906
Check Treatment

Opinion by

Chief Justice Hobson.

Reversing.

The city of Madisonville adopted the following ordinance : “It shall be unlawful for any infant or female to go into or be in or drink intoxicating liquors in any saloon or place for sale of such liquors, or any room used in connection with and opening into such saloon or place for the sale of such liquors, or in any billiard or poolroom within the city, or for the keeper or proprietor or controller, or one in charge of such room or place of business, to suffer or permit such infant or woman to drink therein, or to be or remain for over five minutes. Any one violating any provision of this ordinance shall be fined not less than $5 and not more than $20 for each offense. It shall be a defense to this ordinance if the person charged with its viola*165tion shall show that such infant or female was of good repute and was at the time sober and orderly and had. the consent so to do of the parent or guardian of the infant or husband of the female, or in case of reasonable necessity. A violation of this ordinance shall be good cause for revoking the license.” A summons was issued against appellee • from the police court of the city charging him with violating the ordinance. A jury trial was waived, the evidence was heard, and the court thereupon dismissed the prosecution on the ground that the ordinance is invalid An appeal was taken to the circuit court, which concurred in the conclusion of the police court as to the invalidity of the ordinance, and the commonwealth has appealed to this court.

By section 3519, Ky. St. 1903, the legality of the ordinances of a city may be tested by either party by appeal to the circuit court and from the circuit court to this court. Counsel for appellee raises the question ihat the summons is defective, but that question was not made in the police court or in the circuit court. The only question determined there was as to validity of the ordinance. If the summons is in any way defective it may be amended. City of Louisville v. Wehmhoff 116 Ky. 812, 24 Ky. L. R. 438, 76 S. W. 876, 79 S. W. 201. In Dunn v. Commonwealth, 105 Ky. 834 20 Ky. L. R. 1649, 49 S. W. 813, 43 L. R. A. 701, 88 Am. St. Rep. 344, a city ordinance prohibiting prostitutes from being on the streets of the city between the hours of 7 p. m. and 4 a. m., except in instances of reasonable necessity to be clearly shown by the party charged, was sustained. The court said: ‘1 Courts and law writers have found it difficult to define the extent and boundaries of the police power. It certainly extends to the protection of the lives, health, and property of the citizens, and to the preservation of good order and public morals. Every citizen has the constitutional guaranty of life, liberty, and the enjoyment of his property; and they cannot be taken from *166him, except by due process of law. Social and conventional rights, however, are subject to such reasonable limitations in their enjoyment as will prevent them from being dangerous and hurtful to the body politic; and the law-making department of the government, under the power vested in it by the Constitution, can enact laws providing for such reasonable restraints and regulations as may be necessary and expedient to secure social order and public morals.” In Grastenau v. Commonwealth, 108 Ky. 473, 22 Ky .L. R. 157, 56 S. W. 705, 49 L. R. A. 111, 94 Am, St. Rep. 386, an ordinance prohibiting any woman from going in or out of a building where a saloon is kept, or from standing around the building within 50 feet of it, and imposing a penalty upon any saloon keeper who permitted a violation of the ordinance, was held invalid. The court said: “It seems to us that the ordinance in question is unreasonable, and an unnecessary interference with individual liberty, and .tends to subject the vendor of liquors, as well as citizens, to unreasonable prosecutions. If the ordinance only included the persons mentioned in appellee’s brief, we are not prepared to say that it would be invalid. But it might be that very good women would, for proper and legal purposes, find it necessary to go into a building where liquor was sold, or stop for a reasonable time within 50 feet of same; and, besides, we know of no rule of law which prohibits a well-behaved woman, for a lawful purpose and in a lawful manner, from going into or near a saloon.”

It will be observed that the ordinance in question is not liable to the objections pointed out by the court. The ordinance in question only prohibits the saloon keeper from suffering or permitting infants or women to drink in the saloon or to be or remain therein over five minutes, and it provides that it shall be a defense if the person charged should show that the infant or female was in good repute, and was at the time sober and orderly, and had the consent of the parent or *167guardian of the infant or husband of the female, or in case of reasonable necessity. It is a well-known fact that the frequenting of saloons by lewd women tends to immorality, and that the frequenting of saloons by infants is not promotive of good citizenship. The city council has a large discretion in the enactment of ordinances and an ordinance enacted under the police power will not be declared void unless it is clearly oppressive or unreasonable. It was competent for the legislative body in making the law to provide what should be a prima facie case, and to place upon the defendant, in case a violation of the law was shown, the burden of showing that the case fell within one of the exceptions named in the ordinance. The ordinance makes it an offense for the saloon keeper to suffer an infant or female to drink in his saloon, or to be or remain there over five minutes, and when these facts are shown the prosecution has made out its.case, and the burden then shifts to the defendant to show that the case falls within one of the exceptions named in the ordinance.

Judgment reversed, and cause remanded for further proceedings consistent herewith.