Request By:
Mr. Steven L. West
Murray State University
College of Business and
Public Affairs
Dept. of Marketing and
General Business
Murray, Kentucky 42071
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of November 11 in which you request an opinion concerning the following:
"The Kentucky Constitution, Section 168 states:
Ordinance not to fix less penalty than statute for same offense -- Prosecution under one a bar. -- 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.
KRS 87.060 provides:
(1) The city council may impose fines, penalties and forfeitures for violations of ordinances, and fix the penalty by fine or imprisonment, or both. No penalty or fine shall exceed one hundred dollars ($100), and no term of imprisonment shall exceed fifty (50) days.
(2) The violation of any ordinance of the city shall constitute a misdemeanor and may be prosecuted by the city authorities in the name of the commonwealth for the use and benefit of the city, or at the option of the city authorities may be redressed by civil action.
Question: If a city adopts an ordinance patterned after a Kentucky statute and provides a fine in excess of KRS 87.060, is KRS 87.060, operable and/or unconstitutional?"
Section 168 of the Constitution, above referred to, applies only to offenses against a state statute and not to fines imposed for violating an ordinance that is local in nature. See
Eales v. Barbourville, 177 Ky. 216, 197 S.W. 634 (1917); and
Louisville v. Wehmhoff, 116 Ky. 812, 76 S.W. 876 (1903). The penalities provided for under KRS 87.060 apply, we believe, only to nonstatutory offenses.
In other words, ordinances fixing penalities for local offenses not covered by state statutes cannot deviate from the maximum penalties prescribed by KRS 87.060. On the other hand, if a city adopts an ordinance patterned after a state statute, it would be controlled by the provisions of § 168 of the Constitution which would permit the enactment of a higher penalty than that imposed by a state statute.
Thus, under the above interpretation, there would exist no conflict were the city to adopt an ordinance patterned after a given state statute which provides a fine in excess of those mentioned in KRS 87.060.