173 S.W.2d 131 | Ky. Ct. App. | 1943
Issuing writ.
In this original action in this court the petitioners seek a writ of mandamus against the county judge of Bell County directing him to call a local option election.
The allegations of the petition are, in substance, that the petitioners, voters of Bell County, filed in the county court on July 1, 1943, a petition sufficient in all respects according to KRS
The question whether the holding of local option elections in portions of the county within less than three years from the date of the proposed election operates as a bar to the holding of the county wide election presents little difficulty. KRS
"The statute, prohibiting a second vote within three years, has reference to an election in the identical territory."
The cases cited are conclusive of the right to hold a county wide election. It was the duty of the county judge to call the election as requested.
The only question giving us any concern is the one raised by the respondent as to the original jurisdiction of this court. Where a court inferior to the circuit court is proceeding beyond its jurisdiction its action is controllable by the circuit court but where such inferior court is proceeding within its jurisdiction erroneously and great and irreparable injury will result from its erroneous action and the party injured thereby is without adequate remedy by appeal or otherwise the Court of Appeals has jurisdiction under Section 110 of the Constitution to issue the necessary writs to control the action of such inferior court. Reeves v. Bell, County Judge,
In the case before us it is clear, as indicated above, that the county judge is proceeding erroneously within his jurisdiction. Great and irreparable injury will result from his action in that the petitioners and other voters of the county are denied a cherished right accorded to them by statute. There is no appeal from his action since the local option act provides none, as was the case with the old local option law (see O'Neal v. Minary,
The only remaining question is whether the petitioners had any other adequate remedy. It may be thought, as contended by the respondent, that they might have proceeded by mandamus in the circuit court. As a matter of fact, it was so indicated by way of dictum in O'Neal v. Minary, supra, but it seems to us mandamus in the circuit court could not be resorted to in the circumstances of the case before us. Even though the petitions requesting the calling of the election complied with the statutory requirements, the county judge still was vested with a discretion as to the calling of the election, that discretion being to determine whether an election had been held within the same territory within three years. He exercised that discretion, erroneously, it is true, by determining that such an election had been held as precluded the holding of another. He did not fail or refuse to perform a ministerial act but exercised a judicial discretion erroneously and, having acted, his action could not be controlled by mandamus in the circuit court. If an inferior court has a discretion and proceeds to exercise it, its discretion cannot be controlled by mandamus. Dickens v. Cave Hill Cemetery Co.,
It is our conclusion that mandamus in the circuit court did not lie and that the petitioners were without any adequate remedy by appeal or otherwise and, therefore, that this court has jurisdiction under Section 110 of the Constitution to correct this erroneous action by the county court within its jurisdiction from which great and irreparable injury would result.
It is therefore ordered that a writ issue, directing the county judge to enter an order calling the election in compliance with KRS