| Ky. Ct. App. | Dec 6, 1888
delivered the opinion oe the court.
This is an appeal by the Commonwealth. from a judgment sustaining a demurrer to, and dismissing, an indictment against appellee for the crime of making up a false and fraudulent poll-book of an election for Mayor and General Council of the city of Louisville, charged to have been committed in the following manner: That he, being duly appointed and qualified to act as clerk of said election at a certain designated precinct, and requested by qualified voters, whose names are set out, to record their several votes for-Avery, who was then a candidate for the office of may- or, willfully, falsely and feloniously recorded them for -Jacob, who was also then a candidate for said office of mayor; and that in like manner, and with like intent, he recorded the several votes of said persons in favor of---Bohn, a candidate for the office of councilman, when they had requested him to record them for- Miller, a candidate for the same office. A general demurrer to the indictment, filed in December, 1887, was overruled ; but in February, 1888, another demurrer was filed, the cause of which, as stated, is that the court had no jurisdiction to try the case, as after the indictment was returned the law upon which the prosecution is based was repealed by
1. As the offense charged was alleged to have been committed by him as clerk of • the election in making a false entry on the poll-book of votes actually cast and recorded, and not for recording illegal or refusing to record legal votes, about neither of which he had any legal discretion, it is not material whether the persons whose votes he thus entered were or not legally registered voters.
2. Making up a fraudulent poll-book in the mode described in the indictment is a single offense, whether consisting of the false entry of one or more votes, or of votes for one or more candidates for office, and no question of misjoinder of offenses arises in this case.
3. It is contended that as the alleged offense was committed by an officer of a municipal election, the statute we have quoted has no application.
If that position be correct, there exist no regula^ tions for securing free and fair municipal elections in the city of Louisville, unless they have been adopted by the General Council; but even if the power to make the necessary regulations could be
“The laws of the State operate within the limits of municipal corporations, and upon the inhabitants of the same, as elsewhere, unless it is otherwise clearly provided in the charter or by some statute of the State, and unless so provided, in case of conflict between laws and ip-laws, the latter must give away.” (Dillon on Municipal Corporations, sec. 367.)
“A general grant of power, such as authority to make by-laws for the good government of the place and the like, should not be held to confer authority upon the corporation to make an ordinance punishing an act which is made punishable as a criminal offense by the laws of the State.” (Ibid., sec. 368.)
As said by this court in March v. Commonwealth, 12 B. M., 25, the presumption can not be indulged that the Legislature intended that an ordinance passed by the city council should be superior to, and take the place of, the general law of the State upon the subject.
As, therefore, the General Council of the city of Louisville neither possesses, nor, so far as this record shows, has attempted to exercise the power of providing by ordinance punishment for offenses committed by officers of municipal elections, they are not punishable at all, if not by the general law of the State; and inasmuch as the power to regulate elections of officers of towns and cities is expressly given to the General Assembly by section 6, article 6, of' the Constitution, and the duty of prohibiting, under adequate penalties, all undue influence on elections from power,
4. It being to us clear the statute was intended to apply to the offense with which appellee is charged, the question arises on the demurrer, sustained by the lower court, what effect, if any, the act entitled “An act to regulate municipal elections in the city of Louisville,” approved February 24, 1888, had on the pending prosecution against him.
The rule was, formerly, that the repeal of a statute terminated all proceedings under it, whereby persons guilty of crime often escaped punishment. To remedy that evil the following provision, being section 23, chapter 21, was made part of the General Statutes, as it had been of the Revised Statutes : “No new law shall be construed to repeal a former law as to any offense committed against the former law, nor as to any act done, any penalty, forfeiture or punishment incurred, or any right accrued or claim arising under the former law, or in any way whatever to affect any such offense or act so committed or done, or any penalty, forfeiture or punishment so incurred, or any right
The purpose of that section, as plainly indicated, is to limit the consequences of repealing statutes, and, as has been held by this court, it should be construed in connection with such statutes, unless contrary to the manifest intent of the Legislature. (Acree v. Commonwealth, 13 Bush, 353" court="Ky. Ct. App." date_filed="1877-10-10" href="https://app.midpage.ai/document/acree-v-commonwealth-7379501?utm_source=webapp" opinion_id="7379501">13 Bush, 353; Waddell v. Commonwealth, 84 Ky., 276" court="Ky. Ct. App." date_filed="1886-09-25" href="https://app.midpage.ai/document/waddell-v-commonwealth-7131747?utm_source=webapp" opinion_id="7131747">84 Ky., 276.)
The first of those cases was where pending an indictment for selling spirituous liquor at the residence of the defendant, who was a distiller, the law was so changed as to make the sale at his residence thereafter lawful. But it was held that as the sale made at that place was unlawful when the indictment was found, he could not escape by reason of a change of the law after the offense was committed.
In the latter the offense charged was setting up and keeping a faro-bank. But after the indictment was returned, an act was passed making the offense a felony instead of a misdemeanor; section 6 thereof being as follows: “All acts or parts of acts in conflict with this act are repealed.” Nevertheless, it was held that construing section 23, chapter 21, in connection with •that act, as it was intended should be done in all such cases, the statute under which the defendant
TRe same ruling has been made in the case of Commonwealth v. Sherman, 85 Ky., 686" court="Ky. Ct. App." date_filed="1887-06-04" href="https://app.midpage.ai/document/commonwealth-v-sherman-7131887?utm_source=webapp" opinion_id="7131887">85 Ky., 686
By the act to regulate elections in the city of Louisville, which we are now considering, it is provided that thereafter, in all municipal elections, the votes shall be given by ballot instead of viva voce, the effect of which has been to dispense with the use of poll-books, and as a consequence, the offense of fraudulently making up poll-books can not be committed under that act. But to decide the act has repealed article 12, Chapter 33, as to the offense appeUee is charged to Rave committed against it, would be, we think, a violation of the rule of construction prescribed "by section 23, cRapter 21, and in the face of the ruling of this court in the cases cited.
But it is contended that section does not apply to the act in question, because it is a local law. By the terms of section 23, cRapter 21, all repealing statutes .are comprehended, and even if the language there used permitted, we see no reason for excepting local laws from its application, especially when, as in this case, the effect would be to render the General Statutes relating to felonies ^heterogeneous and complicated.
It seems to us that, as it is never to be presumed the Legislature intended to condone public offenses already committed, the rule should be applied to each repeaHng statute, whether local or general in its character, where it would otherwise operate to terminate pending prosecutions for pubRc offenses, and set the
The cases cited are the only ones decided by this court that have any application to the question before us, and it is unnecessary to refer to any others.
We think the lower court erred in sustaining the demurrer and dismissing the indictment, and the judgment is reversed, and cause remanded for further proceedings consistent with this opinion.