Opinion
December 15, 1950.
Permanent writ issued.
Oscar Buise filed an original petition against J.H. Barklage, Police Judge of Eubank, Kentucky, seeking a writ prohibiting respondent from trying petitioner, fining and committing him to jail in default of payment upon a charge of breach of the peace under a void ordinance. The Court of Appeals, Stanley, C., held that the ordinance under which respondent purported to proceed was invalid because of fixing a penalty for a violation thereof at less than that imposed by statute for the same offense.
Fritz Krueger for appellant.
H.C. Kennedy for appellee.
Issuing writ.
The petition against J.H. Barklage, Police Judge of the Town of Eubank, seeks a writ of prohibiting the respondent from trying the petitioner, Oscar Buise, fining and committing him to jail in default of payment upon a charge of breach of the peace under a void ordinance. A temporary writ immediately issued and respondent directed it to make defense. He has filed a general demurrer but has not favored us with a brief.
The ordinance passed by the Board of Trustees of Eubank in June of 1945 provided a penalty for the offense of breach of the peace committed in the town of a fine of not less than $1 nor more than $10. The Statute provides a penalty for such an offense of a fine of not more than $100 or imprisonment for not less than 5 nor more than 50 days or both. KRS 437.010.
The Constitution, section 168 provides: "No municipal ordinance shall fix a penalty for a violation thereof at less than that imposed by statute for the same offense. A conviction or acquittal under either shall constitute a bar to another prosecution for the same offense."
It is apparent that the ordinance is invalid. Taylor v. City of Owensboro, 98 Ky. 271, 32 S.W. 948. The petitioner has pursued the proper course for remedy. Meeks Motor Freight, Inc. v. Ballard, Police Judge, 283 Ky. 404, 141 S.W.2d 569.
The prayer of the petition is sustained and a permanent writ will issue prohibiting the respondent from trying or punishing the petitioner for a violation of the void ordinance.