Redden v. Town of Covington

Frazer, C. J.

This was a suit commenced in the circuit court for retailing liquor, in the town of Covington, without *119 license from the corporate authorities of the town, in violation of an ordinance fixing the' price to be paid for such license, at §100, and the penalty for violating the ordinance at the same sum.

The second paragraph of the answer alleged that the election, at which the trustees who passed the ordinance were elected, was not conducted-by the then trustees, or any three of them, acting as inspectors, but by irresponsible and disqualified persons. A demurrer was sustained to this, and this presents one of the questions before us. It is also assigned for error that the circuit court had no jurisdiction of the cause. Another error assigned is, that the verdict was contrary to the evidence; but as the bill of exceptions does not profess to contain all the evidence, its statement, after setting out certain evidence, being that “upon this testimony'the court found for the plaintiff,” we cannot examine the question. Other questions are also presented by the assignment of errors, but the record does not so present them as to authorize their consideration.

The appellant does not favor us with any argument.

1. Had the circuit court jurisdiction? It is conjectured that the objection to the jurisdiction is based upon the 57th section of the act for the incorporation of towns, by which it is enacted that suits for the violation of ordinances “may be prosecuted before a justice of the peace of such town.” 16. 4H. 631. This language, however, does not exclude the jurisdiction of the circuit court, a tribunal which, by another act, is vested with exclusive jurisdiction of certain cases, and with concurrent jurisdiction in all other civil actions, “except as otherwise provided by law.” 2 G-. & H., § 5, p. 6. This was a civil action.

2. Was the second paragraph of the answer sufficient ? We think not. It does not appear by the paragraph that the trustees who passed the ordinance were not trustees de facto. If they were, their acts as such would be valid, although they might not be such officers rightfully. The question of *120 their right to exercise the duties of the office cannot he questioned collaterally. This is a familiar proposition.

J. Ristine, for appellant. T. F. Davidson, for appellee.

The judgment is affirmed, with ten per cent, damages and costs.