150 Ky. 460 | Ky. Ct. App. | 1912
Opinion op the Court by
Denying writ of prohibition.
Subsection 5, of section 2615 of the Kentucky Statutes, pro vides, a fine of $50 against any person who shall practice medicine without having registered as a physician in the way pointed out by the statute; while section 2618 of the statutes further defines the offense, by
In determining whether there is an adequate remedy, each case must be adjudged upon its merits.
In Rush v. Denhard, 138 Ky., 245, this court said:
“If we should once lay down the rule that application by original proceeding might be made to us to stay the hand of the inferior jurisdictions, whenever in the opinion of counsel the ruling was prejudicial although it might not leave the. complainant without adequate remedy, we would have much of our time occupied in the settlement of questions that could be brought before us in the regular way by appeal. Inferior courts would be obstructed in the hearing and disposal of cases, and much confusion and uncertainty would follow. Schobarg v. Manson, 110 Ky., 493, 61 S. W., 999, 22 Ky. Law Rep., 1892; Galbraith v. Williams, 106 Ky., 431, 50 S. W., 686, 21 Ky. Law Rep., 79.”
In that case a county judge had made a public statement in writing to the effect that he would revoke the license of every saloon keeper in Warren County; whereupon the defendants in a proceeding to cancel their licenses, filed the statutory affidavit requiring the county judge to vacate the bench. In those cases, the statute allowed the saloon keeper an appeal from the judgment of the county court against him, but further provided that his license should stand revoked pending the appeal; and, in view of that fact, this court said:
“Having granted the right,of appeal, it seems manifest that the Legislature did not contemplate that the licensee would be arbitrarily deprived of his license by the county court, but rather that he should have a fair hearing in that court, and after such a hearing his li
The court there pointed out, as sound, the distinction between cases like the one then before the court in which a party was deprived of the benefit of an appeal which the statute gave him, and other cases in which this court has been asked to issue the writ to stay a court of inferior jurisdiction from hearing and disposing of a case in which the statute did not allow an appeal from an adverse judgment against the petitioner.
In the case before us the only element entering into the charge that plaintiff has no adequate remedy, is the fact that no appeal will lie from the judgment which the circuit judge will render against him because the fine will be for an amount not within the jurisdiction of this court. The ease, therefore, is on all fours with that of the Standard Oil Co. v. Linn, Judge, 17 Ky. L. R., 833, where the Oil Company, having been proceeded against under sixty-five separate indictments for buying and receiving empty coal oil barrels without having first erased therefrom the inspector’s brand, which had been placed on them as required by law, applied to this court for a writ of prohibition to arrest the proceedings. In overruling the application, this court, speaking through Chief Justice Pryor, said:
“The basis of the motion rests upon the ground that his decision may be adverse to the defendant, and as the fine is for an amount not within the jurisdiction of this court, no appeal can be prosecuted from his judgment. It has long been held, and in fact, no ruling to the contrary can be found, that such a writ issued only to prevent the inferior tribunal from exercising or attempting to exercise a jurisdiction that does not belong to it. The Civil Code defines this writ to be ‘an order of the circuit court to an inferior court of limited jurisdiction prohibiting it from proceeding in a matter out of its jurisdiction.’ (Section 479, Civil Code.)
' “Under this provision it is claimed this court may rightfully exercise the power of determining not only the question of jurisdiction in the inferior court, but may go so far as to determine questions that necessarily belong to courts of original jurisdiction and over which they have complete control, subject to an appeal to this court where an appeal is allowed.
“It is not contended, the circuit court is without jurisdiction to try these indictments, and it must be conceded it has full and complete power to determine all questions pertaining to the trial made by counsel on either side. With such a latitudinous construction given this provision of the Constitution as we are asked to give, this court would convert itself into a tribunal of original jurisdiction, and in every case, as to the validity of indictments, or of the sufficiency of any pleading in a civil action, this court could interfere and direct-the inferior court as to what the judgment, should be.
“If the statute imposing the penalty in such cases has-been repealed the court below has the jurisdiction to so decide, or if the indictment or proceeding Is defective the same power exists, so that there can be no reason for this court to interfere with the exercise of the rightful jurisdiction of any court except in cases where appeals are prosecuted, and it is only in cases where the inferior tribunal is beyond the bounds of its jurisdiction that this writ skoidd go. The fact that no appeal is given cannot affect the question, because the legislative department of the State has the power of limiting the jurisdiction of this court as to appeals-.”
And, in the late case of Commonwealth on Relation, &c. v. Weissinger, Judge, 143 Ky., 369, we further said:
“The only question presented by the record is, did the Jefferson County Court have power to vacate and set aside'the judgment by default? If it did not have jurisdiction to vacate and set aside the default judg-. ment, the writ of prohibition should have been granted; on the other hand, if it did have jurisdiction, the writ should be denied. If the county court had power to vacate. the judgment, it is -wholly immaterial whether the reasons for so doing were sufficient or not; and so we will not inquire into the sufficiency of the' reason, as a
Plaintiff admits the Whitley Circuit Court has jurisdiction of the offense with which he stands charged, hut insists the court will decide the case erroneously, and that, therefore, he cannot have it corrected by an appeal. This, however, does not justify his application to this court for it to exercise its original jurisdiction. The right to appeal is not an inherent right; it is a matter of grace, to he granted or withheld by the Legislature, in the exercise of its discretion. If could have denied an appeal in all cases of this character, just as it has denied an appeal in all cases where the fine does not exceed $50. It is clear, therefore, under the authorities, that plaintiff is not entitled to the relief he asks.
The writ of prohibition is denied.