Brady v. Brannon

134 Ky. 769 | Ky. Ct. App. | 1909

Opinion of the court by

Chief Justice Nunn

— Affirming.

It appears that in the year 1907 there was a school tax levied for the benefit of some school district in Mason county, Ky., and that appellant was appointed collector thereof. This action was instituted in the police court of the city of Maysville in the month of March, 1908, in which appellee procured an order restraining appellant from proceeding to collect of hú i taxes alleged to be due, amounting to $14, upon the ground that the levy of the tax was illegal and void.

It appears that appellant did not answer, and on the 7th day of September, 1908, the following order was entered: “This cause coming on for trial on the regular call of the docket, and the defendant failing to appear, and the court having considered the pleadings herein, and on proof heard and argument of conn sel, and being advised, now orders and adjudges that the restraining order granted herein on March 17, 1908, be now made permanent, and that the plaintiff recover from defendant his cost herein expended. And the parties are hence dismissed. ’ ’

Appellant appealed from this judgment direct to the circuit court, and that court entered an order dismissing the appeal, which is as follows:

“The court having considered appellee’s motion to dismiss the appeal herein, for the reason that this court has no jurisdiction of same, and being advised sustains the motion; and it is ordered that the appeal herein be, and the same is, now dismissed, and that the appellee recover of appellant his costs herein expended. To all of which appellant objects and exr cepts, and prays an appeal to the Court of Appeals, which is granted. ’ ’

It appears from the briefs of counsel that the circuit court dismissed the appeal for the reason that an appeal was not first taken to the quarterly court from the police court; that section 978, Ky. St. provides only for appeals to the circuit court from a judgment of the fiscal, county and quarterly courts in civil cases; and' that section 1054 (section' 3130) provides that appeals from judgments and orders of justice, fiscal and city or police courts, in civil cases, shall be taken to the quarterly court. Appellant contends that the circuit court had jurisdiction of the appeal by virtue of section 3520, Ky. St. (Russell’s St. Sec. 1533), which is as follows:

“In all civil cases an appeal shall lie to the quarterly court or to the circuit court of the county, where the amout exceeds twenty-five dollars, exclusive of interest and costs, and under the rules and regulations prescribed by law for appeals from inferior courts to circuit courts. ’ ’

Appellee claims that this section is unconstitutional as it applies alone to police courts in fourth-class cities; that it is inhibited by section 59 of the Constitution, which declares that the General Assembly shall not pass local or special acts with reference to the -jurisdiction of courts.

It is not necessary for us to consider and pass upon this question, as we have arrived at the conclusion that the circuit court did not have jurisdiction of the appeal, for the reason that the judgment of the police court was void, as it had no jurisdiction of the action. The action was not instituted in the police court to recover a judgment for money or personal property. The only purpose was to restrain the collecting officer from levying upon appellee’s property and collecting a small tax bill. Tbe State Constitution (section 143) provides as follows:

“The General Assembly may confer civil jurisdiction on police courts in cities and towns of the fourth and fifth classes, and in towns of the sixth class having a population of two hundred and fifty or more, which jurisdiction shall be uniform throughout the state, and not exceed that of justices of the peace.” We find from this section that civil jurisdiction may be conferred only upon police courts.in the fourth, fifth, and sixth class towns, and it shall not exceed the jurisdiction of justices of the peace. By section 3513, Ky. St., which applies to fourth-class cities, the General Assembly conferred civil jurisdiction upon police courts “equal to that of justices of the peace.” In section 142 of the Constitution,, it is provided :

‘ The jurisdiction of justices of the peace shall be coextensive with the county and shall be equal and uniform throughout the state.”

It will be observed that the General Assembly has authority to confer such jurisdiction upon justices’ courts as-it deems proper; but it must be uniform. The General Assembly, acting within its power under the section of the •Constitution'referred to last, enacted section 1086 of the Kentucky Statutes, which is as follows: • < ■ ■ ' ■

“ Justices’ courts shall have jurisdiction concurrent with circuit-and-quarterly' courts 'of-this commonwealth-of all actions and proceedings for the recovery of money or-personal property in civil cases, where the matter in controversy, exclusive of -interest and costs, does not exceed one hundred, dollars, and shall have jurisdiction, exclusive of circuit -courts, 'and concurrent with quarterly courts in civil cases, of all actions and proceedings for the recovery of money or personal property when the value in controversy, exclusive of interest and costs, is fifty dollars or under,” etc. It will be observed that by this section the civil jurisdiction of justices’ courts is limited to cases for the recovery of money or personal property. Therefore a justice of the peace in this state has no jurisdiction of an action where the sole object is to restrain an officer from collecting taxes, and, as the General Assembly is prohibited by the Constitution from conferring upon police courts jurisdiction in excess of that conferred upon justices of the peace, the police court was without authority or jurisdiction to pass upon the question presented in this action, and his attempted action thereon is void.

The quarterly court had no jurisdiction of an appeal from the judgment of the police court, nor would it- have had original jurisdiction thereof. By section 139 of the Constitution it is provided, in effect, that the quarterly courts should have such jurisdiction as is conferred by the General Assembly. By section 1051, Ky. St. there is conferred upon quarterly courts civil jurisdiction of all actions for the recovery of money or personal property. Therefore the quarterly courts have no jurisdiction of cases like the one at bar. The circuit court of Mason county was the only court that had original jurisdiction of the cause of action presented by appellee. ' Its jurisdiction was exclusive, as the General Assembly had not conferred it upon any other court. Although the circuit corirt had original jurisdiction, it had no 'right to entertain the case on an appeal from an inferior court that had no jurisdiction. Section 966, Ky. St., provides that circuit courts “shall have original jurisdiction of all matters, both in law and equity, of which jurisdiction is not exclusively delegated to some other tribunal,” etc. The members of the constitutional convention and the General Assembly thought it proper to limit the jurisdiction of inferior - courts by not allowing them to pass upon .such cases as the one at 'bar, for there might be as many conclusions about the constitutionality or legality of a tax levied for any purpose as there were inferior courts in the county, and some of the citizens might be forced to pay the tax while others would be relieved therefrom by the judgments of such inferior courts.

Our opinion is that the action of the police court in the case at bar was without authority, was a nullity and constituted no bar to the collection of the tax, and the action of the lower court in dismissing the appeal was proper.

For these reasons, the judgment of the lower court is affirmed.