Tutt v. City of Greenville

142 Ky. 536 | Ky. Ct. App. | 1911

Opinion op the Court by

Judge Carroll

Affirming.

The city of Greenville bas an ordinance prohibiting cattle from running at large in the city and making it a misdemeanor for any person to suffer or permit his cattle to be at large in the city. The appellant, Tutt, resides outside of the city limits, and under a warrant issued against him for suffering a cow owned by him to run at large and wander into the city he was arrested and fined in the police court. Thereafter he brought this suit in the circuit court against the city and the police judge, seeking to prohibit them from enforcing the collection of the fine and costs. A general demurrer was sustained to his petition and he appeals.

The validity of the ordinance is not assailed, but it is insisted that appellant did not commit any offense in the city limits, because he did not in person take his cow into the city and turn her loose; and, therefore, the police court had no jurisdiction to impose a fine upon him for a violation of the ordinance, although it is conceded that the cow might have been impounded and proceeded against in rem, as it were. In support of the argument that the police court had no jurisdiction over the person of appellant, our attention is called to section 143 of the Constitution, reading:

“A police court may be established in each city and town in this State, with jurisdiction in cases of violation of municipal ordinances and by-laws occurring within the corporate limits of the city or town in which it is established, and such criminal jurisdiction within the said limits as justices of the peace have. * * *”

And section 3651 of the Kentucky Statutes, relating to the class of cities of which Greenville is one, reading:

“A police court is hereby established in such city, to be held by the police judge of such city. Said police court shall have jurisdiction concurrent with the justices ’ courts of all actions and proceedings, civil and criminal, except that in criminal cases the jurisdiction shall be confined to cases occurring within the city, * * * and shall have exclusive jurisdiction of all actions for the recovery of any fine * * * and of all prosecutions for any violations of any ordinance. * * *”

"We have no disposition to question the proposition that unless an offense is committed within the city the police court has no jurisdiction. This being so, the only question presented is, did appellant by permitting his cow to run at large and into the city, commit within the city an offense?

As we understand the argument of counsel for appellant, it goes to the extent of insisting that a person cannot commit an offense against an ordinance of a city or town unless he is actually present within the city limits when the offense is committed. But we do not think it necessary that a person charged with committing an offense against an ordinance should be actually within the city at the time of its violation, if in fact through his acts or agents or by or through means or things controlled and directed by him the offense charged against him is actually committed within the city. Suppose a city had an ordinance prohibiting and punishing the throwing of explosive substances on the streets within the city limits, and a person should stand just outside the corporate boundary and throw an explosive substance within the city limits, could it be contended that he was exempt from liability and punishment under the ordinance merely because he was outside of the city when he threw the offending article? Or, suppose a city had an ordinance prohibiting the bringing into the city of intoxicating liquors for sale and a person outside of the city sent for sale by his agent intoxicating liquors into the city, would he not subject himself to the penalty provided by the ordinance? Illustrations like this might be multiplied without number, but it.is scarcely necessary to use- others, as we think there can be no doubt that when any. person violates a valid ordinance in person or by or through things, instrumentalities or agencies that he owns or controls and directs, he is subject to the punishment imposed. It is the act or thing that is done within the city limits in violation -of the ordinance that subjects the doer to the penalty. Where the doer in fact is at the time is a matter of no consequence. Possibly in some cases it-might be difficult to get jurisdiction of the person of the offender, so that he might be punished, but this fact would not affect his guilt or his liability to punishment if he could be brought to- trial. A person need not himself be within the territorial limits of a city in order to commit a violation of one.of its.ordinances if ■the act that he commits or the.thing that he sets in motion occurs within the city. When appellant permitted 'his cow to wander at large within the city limits, he as certainly committed an act in violation of its law as if he had himself driven his cow within the limits and turned her at large. There could be no difference between .the legal effect and consequence of appellant’s act in standing just outside the city limits and driving his cow into the city to run at large and in leading her into the city and then turning her loose. In both instances it would be through his agency or conduct that she was at large in the city. The fact that the cow might have been impounded, and subjected in a proper proceeding to any hue imposed against appellant, did not relieve him from liability, nor did it grant the city authority to subject his cow without giving him an opportunity to be heard. Varden v. Mount, 78 Ky., 86; City of Paducah p. Ragsdale, 122 Ky., 425. The case of Earle, Mayor v. Latonia Agricultural Association, 127 Ky., 578, is in no wise in conflict with the conclusion we have reached. In that case it was attempted by ordinance to prohibit and punish the sale of intoxicating liquors outside the limits of the corporation, and it. was held that the ordinance in so far as it attempted the punishment of offenses committed outside of the city limits was void, and this for the reason that the act that constituted a violation of the ordinance was not committed within the city. Here the act that constituted a violation of the ordinance was committed within the city. It is, therefore, obvious that there is no similarity between this case' and that.

Wherefore, the judgment of the lower court is affirmed.