142 Ky. 60, 34 L.R.A.N.S. 141, Am.Ann.Cas. 1912D,189
Court of Appeals of Kentucky.
Feb. 3, 1911.
ACTION: Affirmed.

Appeal from Circuit Court, Knox County.
Action by Henry M. Hershberg against the City of Barbourville.
From a judgment sustaining a demurrer to petition, plaintiff appeals.

Barbourville is a city of the fifth class. The board of council of the city enacted the following ordinance: "That if any person shall smoke a cigarette or cigarettes within the corporate limits of the city of Barbourville after such person shall have had actual notice of the passage of this ordinance, he shall be deemed guilty of a misdemeanor and upon conviction shall be fined not less than one dollar nor more than fifteen dollars, for each offense." The police judge issued a warrant against Henry M. Hershberg, in which he was charged with having violated the ordinance by smoking cigarettes in the city. He was arrested by the Marshall under the warrant and taken before the police judge for trial. Upon a trial of the case he was found guilty and fined. He failed to pay the fine and was committed to jail upon its nonpayment. Thereupon he brought this suit against the city alleging that the ordinance was illegal and void, and that he was unlawfully arrested and imprisoned by reason thereof to his damage in the sum of $5,000, for which he prayed judgment. The circuit court sustained a general demurrer to his petition, and, he declining to plead further, dismissed it. He appeals.

The circuit court in a written opinion held the ordinance void as an unreasonable invasion of the citizen's right of personal liberty. We concur in the conclusion that it is not a reasonable ordinance, and that the circuit court properly so held. The ordinance is so broad as to prohibit one from smoking a cigarette in his own home or on any private premises in the city. To prohibit the smoking of cigarettes in the citizen's own home or on other private premises is an invasion of his right to control his own personal indulgences. The city council is authorized by statute to enact and enforce all such local, police, sanitary, and other regulations as do not conflict with general laws. But under this power it may not unreasonably interfere with the right of the citizen to determine for himself such personal matters. If the council may prohibit cigarette smoking in the city, it may prohibit pipe smoking or cigar smoking, or any other use of tobacco. The Legislature did not contemplate conferring such power upon the council. If the ordinance had provided a penalty for smoking cigarettes on the streets of the city, a different question would be presented; but whether such an ordinance would be valid is a question not now presented or decided.

It is insisted for appellant that, as the ordinance is void, his arrest was unwarranted, and the city is liable to him therefor. In support of this conclusion his counsel cites the case of McGraw v. Town of Marion, 98 Ky. 673, 34 S. W. 18, 17 Ky. Law Rep. 1254, 47 L. R. A. 593, in which it was held that a recovery might be had against the municipality in a case like this.

The city is a branch of the state government created by the Legislature for local purposes. Legislative authority is conferred upon the city council in certain matters. Where the council acts in its legislative capacity for governmental purposes, the municipality is no more liable than the state would be for similar action taken by the Legislature. The ordinance in question was passed in the attempted exercise of the police power. Cigarette smoking being regarded by the council as injurious, especially to the young, it passed the ordinance in the attempted exercise of its governmental functions, and not in the line of its corporate business or its corporate affairs. The city is only liable for what the council does in the line of its corporate business or corporate affairs not relating to matters of a governmental nature. That a city is not liable in damages to a person arrested under a void ordinance passed in the exercise of its governmental functions.

Judgment affirmed.

Ky.App. 1911.
133 S.W. 985, 142 Ky. 60, 34 L.R.A.N.S. 141, Am.Ann.Cas. 1912D,189


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