
    Williamson vs The Commonwealth.
    MISDEMEANOR. Case 34.
    
      Sept. 22.
    The case stated.
    TM- Court has jurisdiction to revise the decisions of the Lexington City Comt-
    
      Error to the Lexihgton City Court.
    
      Lexington. Powers of corporation. Penal proceedings.
    
   Judge Breck

delivered the opinion of the Court.

The Clerk of the Lexington City Court issued a warrant in the style and name of the Commonwealth against Williamson, the plaintiff in error, for a breach of the peace by an assault and battery; a verdict was found by a jury for $75 ; judgment thereon was rendered by the Court, and execution or capias pro fine issued, directing Williamson to be kept in the city work house until he should perform one hundred and sixty and a quarter days work, unless he should pay the fine assessed and costs.

Williamson moved the Court to quash the warrant in arrest of the judgment, and also to quash the capias pro-fine, all of which motions the Court overruled, and the case is brought by him before this Court, by writ of error, for revision.

The questions presented for consideration are,

1st. Whether this Court has jurisdiction to revise a judgment of this kind from the Lexington City Court.

2d. Whether the proceeding is authorized by law, and that Court had jurisdiction in the case.

As to thefirst question, the constitution provides that the jurisdiction of this Court shall be coextensive with the State, under such restrictions' and regulations as may, from time to time, be prescribed by law.

The Legislature has declared that writs of error shall, upon demand of the person applying, be issued as matter of right, except in those cases which may be brought before and determined by the District Courts under the criminal jurisdiction of the said Court, in which cases no certiorari, appeal, supersedas or writ of error shall be allowed: (1 Stat. Law, 130.) This provision is contained in the act of 1796, and how far it limits the jurisdiction of this Court in criminal cases, was fully considered in the case of Montee vs the Commonwealth, (3 J. J. Marshall, 132.) It was held in that case, and in case Commonwealth vs Brown, (3 J. J. Marshall, 597, 6 J. J. Marshall, 615,) and in other cases, that this Court had no jurisdiction in a criminal or quasi criminal case, unless the punishment for the offence was purely'and exclusively penal. In the case of Montee the proceeding was by indictment under the statute, more effectually to suppress gaming, the penalty for the violation'of which, was $500, to be enforced by imprisonment. It was held that the imprisonment constituted no part of the punishment, and upon that principle, in that and other similar cases, this Court entertained jurisdiction.

The proceeding in this case is for an offence, the punishment of which is a pecuniary fine, not to exceed one hundred dollars, to be enforced by confinement and labor in the work house of the City of Lexington. Upon the turning point of jurisdiction, it is, therefore, anajagous to the case of Montee,

The City Court of Lexington is a judicial tribunal, established by law, with express jurisdiction of the offence in question ; and as we are not aware of any restriction of the revisory power of this Court as to its judgments and proceedings, except so far as restricted by the general law, we are inclined to the opinion that it may well entertain jurisdiction in this case.

The second question is one of much difficulty and perplexity, arising from the various, and in some instances, novel provisions of Legislative enactments.

The City of Lexington was incorporated in 1831, and since that time its charter has undergone various changes. In 1843 an act was passed entitled, -“an act to reduce into one and digest and amend the acts and amendatory acts incorporating the City of Lexington.” The thirty-fifth section of this act provides, that the Mayor and Coun. cilmen shall “have power to suppress, by ordinances with suitable penalties, all riots, disorders, breaches of the peace and disturbances of the peace and tranquility of said City.”

The forty-first section provides, that “they shall have power to pass ordinances and by-laws for carrying into effect all the powers therein granted, with suitable penalties for the infraction of the same, not exceeding fifty dollars, except in cases of breaches of the peace, &c. where it may be one hundred dollars.” Shortly after the passage of this act, an ordinance was passed declaring, that “every person who should commit a breach of the peace within the city, should, for every such offence, forfeit and pay to the City, á sum not exceeding one hundred dollars, to be assessed by a jury.

In the forty-fourth section it is provided, that “all penalties for the violation of the ordinances and by-laws, shall be sued for by warrant in the name of the City of Lexington,, in the City Court,” &c. and in the seventy-first section, “all penalties for breaches of the ordinances and by-laws of the City, shall be sued for, by warrant, in the name of the City, and shall be for its use.” By the act in question, the Lexington City Court is also established, with “exclusive original jurisdiction in all prosecutions for violations of the ordinances of said City, and criminal jurisdiction in all cases where, by the laws of this State, Justices of the Peace within the county of Fayette are, and shall be authorized to hear and determine, or in any manner to act.”

It is also provided, that “said Court shall have concur, rent jurisdiction with the Fayette Circuit Court, in prosecutions by indictment or presentment for breaches of the peace.”

The proceeding in this case is not by indictment or presentment, but by warrant in the “style” and “name” of the Commonwealth. It is not, therefore, such a wap rant as is required by the 44th and 71st sections of the act of 1842. It is not “in the name of the city of Lexington.” But it is insisted as the act of 1842 contains no express repealing clause; that former acts upon the subject, except so far as their provisions may be inconsistent with the act of 1842, are still in force, and in this view, that the warrant in question may be sustained. We are not satisfied, after a careful examination of the act of 1842, and of all the former acts, that even upon this principle, the warrant was properly sued out: but we are of opinion that it was the intention of the Legislature and of all parties concerned, that the act of 1842 should, in effect, operate as a new charter, and that to the extent that power is given by that act, to the Mayor and Councilmen, to pass ordinances upon any subject, and such power is-exercised, and ordinances adopted, that to that extent such ordinances should constitute the law upon, such subject, and in effect, repeal any former law in reference to it, whether inconsistent with them or not. We have seen that the act of 1842 authorizes the Mayor and Councilmen to provide for the suppression, by ordinances with suitable penalties, of breaches of the peace, limiting the penalty in such cases to one hundred dollars; and that shortly afterwards, an ordinance upon this subject was passed. That ordinance constitutes the law upon the subject, and we are inclined to the opinion that the City Court has no jurisdiction to proceed by warrant, for a breach of the peace, except upon the ground that it is a violation of the ordinance.

The Legislature have the power to vest in City-corporations the power to make ordinances and by-laws for the preservation of good order, (not inconsistent with the constitution and laws of the State,) and confer power to enforce them.

But in reference to several of the provisions referred to, of the act of 1842, questions of very serious import are suggested.

And, 1st. Whether it istwithin the constitutional province of the Legislature to vest in the Mayor and Councilmen of the City of Lexington power to establish an ordinance in reference to breaches of the peace within the limits of the City, which, when established, shall have the binding efficacy of law.

To this it may be replied, that the ordinance in this case is, in effect, but the provision of the statute.' The statute limits the penalty, for a breach of the peace in the City of Lexington, and prescribes the mode of enforcing it. But we are not prepared to say that the Legislature may not, constitutionally, vest in corporations the power of passing ordinances and by-laws, necessary for their prosperity, preservation and existence, and of providing, by law, for enforcing, and sustaining, and punishing the violation of such ordinances and by-laws, when established. Such a province has been too long assumed and exercised by the Legislature, and acquiesced in by the country, to be now questioned and disturbed. But in saying this, we would not be understood as intimating that the power of the Legislature, in such cases, is unlimited and without restriction.

The Legislature may constitutionally give to a City corporation the power to proceed in the name of the City against offenders for violating its ordinances which are punishable by fine.

In this case, however, as the ordinance is strictly within the provisions of the statute, and designed for the preservation of the peace and tranquility of the City, we are of the opinion that it has the force of law, and that the Legislature possessed the power of providing, by law, for its violation.

But, 2d. It is suggested, that as a breach of the peace is an indictable offence, the proceeding by warrant, as in this case, is in violation of the eleventh section of the tenth article of the Constitution of Kentucky, which provides that “no person shall, for any indictable offence, be proceeded against criminally, by information, ” &c. We are not aware of any decision of this Court, giving construction to that provision of the constitution. But this Court has regarded proceedings for offences, punishable by fine only, as of a quasi civil nature, as said in the case referred to of Montee vs Commonwealth; the Legislature have so regarded them by leaving to this Court appellate jurisdiction in such cases. They have been considered as rather penal proceedings than criminal, and the proceeding in this case may be regarded as a penal action — the warrant is a mere summons. Indictment is a general remedy for the redress of public injuries, and may be filed in all cases where an offence is created ánd punishment imposed : but in many such cases, penal actions are authorized, and proceeding by warrant., A proceeding in that way has never been held, and should not be, we think, as a proceeding “criminally by information,” and in violation of the clause of the constitution in question.

When a statute directs a proceeding to be had in the name of a City corporation for a breach of its laws, it is error to proceed in the name of the Commonwealth.

Shy for plaintiff:

Gales, Attorney General, and Robinson fy Johnson for Commonwealth.

But, 3d. It is insisted that the proceeding by warrant, in the name of the City of Lexington, for the infraction of the ordinance referred to, for the suppression of breaches of the peace, is-in conflict with the fourth section of the fourth article of the Constitution of Kentucky, which declares that “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 objection has already, in effect, been answered. Such a proceeding would be in the nature of a penal or qui tam action, and would not, in view of the section referred to, be a prosecution. A warrant in the name of the City of Lexington, is authorized to recover the penalty for the violation of an ordinance of the Mayor and Board of Couneilmen. The provision in the act of 1842, authorizing such a proceeding, is not, in our opinion, a violation of the constitution.

In view of the whole case then, we are of opinion that the warrant herein should have been in the name of the City of Lexington, and that the Court had no authority to proceed by warrant, in any other way; and that the Court, therefore, erred in overruling.the motion of the plaintiff in error to quash it, and in arrest of the judgment.

It is, therefore, the opinion of the Court, that the judgment herein be reversed, and the cause remanded, with directions to quash the warrant.  