October 1, 2012

Tuggles v. Commonwealth, Pulaski, 1907

TUGGLES v. COMMONWEALTH.

COURT OF APPEALS OF KENTUCKY

100 S.W. 235; 1907 Ky. LEXIS 401; 30 Ky. L. Rptr. 1071

March 7, 1907, Decided

PRIOR HISTORY:  [**1] Appeal from Circuit Court, Pulaski County. Jesse Tuggles was convicted of violating a city ordinance making it a misdemeanor to trespass upon railroad tracks, etc., and he appeals.

DISPOSITION: Affirmed.

COUNSEL: Williams & Campbell, for appellant.

JUDGES: CARROLL, C.

OPINION BY: CARROLL

OPINION
 [*235]  CARROLL, C. Under an ordinance of the city of Somerset, providing that:

"Whereas, many persons trespass upon and loiter in and on the railroad tracks in the railroad yards, depots, roundhouse, shops and offices of the railroads, entailing danger to themselves and to the railroad employés, and causing obstruction in the performance of duties of said railroads to the public; Now therefore be it ordained by the board of council of the city of Somerset:

"Section 1. It shall be unlawful for any person within the limits of the city of Somerset to trespass on, without having legitimate business requiring him, or to enter upon or loiter in or on a railroad track or the railroad yards, depots, roundhouse, shops, or offices of a railroad company. Any person violating the provisions of this ordinance shall be deemed guilty of a misdemeanor and fined not exceeding ten dollars for each offense."

For a violation of this ordinance appellant was fined in the police  [**2] court, and under section 3519 of the Kentucky Statutes of 1903 prosecuted an appeal to the circuit court. The circuit court held the ordinances valid and affirmed the judgment of the police court, and the appellant brings the case to this court.

We will dispose of the questions made on the appeal in the order in which they are presented by counsel for appellant.

It is insisted that this ordinance is in violation of section 168 of the Constitution, which provides, in part, that "no municipal ordinance shall fix a penalty for a violation thereof at less than that imposed by statute for the same offense." We do not know of any statute that describes the offense mentioned in the ordinance, or that imposes a penalty for it.

Our attention has been directed by counsel to section 1256 of the Kentucky Statutes of 1903, providing in substance that, if any person unlawfully, but not with felonious intention, takes, carries away, injures or destroys real or personal property, he shall be fined not less than $10 nor more than $2,000; and to chapter 55, p. 133, Acts 1904, defining punishment of vagrancy, and fixing the punishment of vagrants at $10 or imprisonment in the workhouse, if there be one,  [**3] for 30 days, or the punishment may be both fine and imprisonment; and it is contended by counsel that the ordinance in question embraces the offense described in section 1256 of the Kentucky Statutes of 1903, and also the one denounced by chapter 55, p. 133, Acts 1904. To this we cannot agree. The statute was designed to punish persons who were guilty of unlawfully, but without felonious intention of, taking, injuring, or destroying property. The act of 1904, so far as pertinent to the question at hand, was intended to punish persons who are habitual loafers without means of support, and who have no trade, calling, or profession. The ordinance forbids persons having no legitimate business from entering upon or loitering in or on the railroad tracks, yards, depots, shops, and offices of any railroad company, thereby interfering with the railroad employés in the performance of their public duties, as well as endangering the lives of the persons who without having business requiring them to do so trespass in and about the tracks and buildings of the company, where they are liable at any time to be injured or killed by trains. It does not apply to persons who injure, take, or destroy property  [**4] of the railroad company, nor is it confined to persons who are habitual loafers without means of support. It embraces all persons who without excuse therefor trespass upon the premises of the railroad company.

It is also contended that the ordinance  [*236]  is in violation of section 51 of the Constitution, providing, in part, that "no law enacted by the General Assembly shall relate to more than one subject and that shall be expressed in the title." This section of the Constitution is by its terms confined to laws enacted by the General Assembly, and cannot be extended by implication or inference to embrace ordinances adopted by a city council. The Legislature might provide in the charter or acts of incorporation that the subject-matter of ordinances should be expressed in the title, as was done in the charter of first and second class cities (sections 2777, 3059, of the Kentucky Statutes of 1903), but in the charter of cities of the fourth class we find no provision of this kind.

The enactment of the ordinance was a legitimate exercise of the police powers granted to the city by the state, and we find no valid objection to it.

Wherefore the judgment of the lower court is affirmed.

No comments:

Related Posts Plugin for WordPress, Blogger...